Sat alone in his cell, concrete floor, derelict walls, suffocating heat, unforgiving conditions, Yankuba Touray paces around, trying to keep his mind sane, his thoughts seeking to reconcile with his present predicament, stretching his hands and legs, as he confronts the perils of imprisonment, seizure of liberty, freedom and choice and ultimately, the menace of boredom.
It’s a spectacular fall from grace for a man once regarded as Jammeh’s top political orchestrator. He is confined to a tiny cell, I presume, in the security wing, while he internalises the fall-out from his brief cameo at the TRRC last week. Any thoughts of regret tormenting his soul and plaguing his mind and conscience if he has any? I do not know. Only he, the pauper, now stripped of company and the comfort of his wife on the other side of the bed, marble floors and chandeliers, flushed toilets, impeccably decorated white-ceiling, reduced to now gazing at barren concrete ceiling, old-fashioned colonial architecture, this is what he now has to get accustomed to, as his new humble abode, literally.
In the last hour or so, news reports confirm our hopes. Yankuba Touray, who dared the TRRC last week, has this afternoon been charged with murder under section 187 of the Criminal Code. If convicted, he will spend the rest of his life in prison, unless pardoned. He’s been remanded in custody at the Mile II Central prisons, pending his plea taking on the next adjourned date on 8th July. I wonder if that is going to be another spectacle, episode 2 of the Yankuba Touray ill-judged saga. The sequel from last week.
Is he going to express the same defiance, that he has constitutional immunity and thus the High Court, or any court for that matter, has no jurisdiction to try him in relation to any matter emanating from his AFPRC days. That will not be an implausible outcome. If he refuses to recognise the jurisdiction of the TRRC, what’s the guarantee that he will readily submit himself to the jurisdiction of the High Court?
Or, perhaps, he may have had a sober reflection, rationalised his performance last week and agree that he needs to find a better way of making his point without much fuss and indignation. I will not put a wager on it. If he decides to invoke constitutional immunity and/or challenge the jurisdiction of the court, and he may decide to do this immediately the charge is read out to him. He may also decide to enter a not-guilty plea and not take any further part, i.e immediately he pleads not guilty, he may raise the issue of jurisdiction.
If he does this, the murder trial will halt at that stage, at least temporarily. This is because it is customary practice that whenever the issue of jurisdiction is raised, all other matters ought to stop whilst the court makes a determination as to whether it has jurisdiction or not. In this instance, since the supposed jurisdictional issue relates to the interpretation of the constitution, an issue that will require the intervention of the Supreme Court to interpret the specific provision that either gives or outs the court jurisdiction, the murder trial proper will be temporarily suspended and the Judge will refer the matter to the Supreme Court to interpret and make a pronouncement. This is likely to take months and meanwhile Yankuba Touray willremain in custody.
If the Supreme Court declares section 13 unconstitutional, the matter will revert back to the High Court to proceed. His immunity claim would have failed. If, however, the Supreme Court decide that this section is constitutional and thus valid, then the High Court and any other lawful authority, adjudicatory or not, will lack the legal capacity to entertain any inquiry or prosecution of the actions of the junta or those they appointed. This is far-fetched. What I am stating here is almost an academic exercise to give the reader a comprehensive overview of what may or may not happen. It is extremely unlikely that there is constitutional immunity that Yankuba Touray may fall back on to evade accountability.
I understand that the Supreme Court in Jammeh v Attorney General (2002) in which Kemesseng Jammeh challenged the constitutionality of a Constitution Amendment Act (No. 6) of 2001), declared the unlawfulness of and thus invalidated part of the Amendment Act (No. 6) of 2001. This declaration, I understand, prohibited the amendment of certain paragraphs in the Second Schedule, inter alia, para. 13. The Yahya Jammeh government, completely disregarding the decision of the Supreme Court, tried to give life to its proposed amendments by reincarnating it by Order (Legal Notice No. 10 of 2002/Gazette No. 10 of 2002). Reprinting the Constitution by Order, was simply a fraudulent attempt by the APRC regime to circumvent a lawful constitutional process by unlawful methods. As one Gambian legal jurist opined “You cannot commit an unlawful act lawfully”.
Thus, once the issue of jurisdiction is raised, in particular if it relates to section 13, the prosecution may simply provide the Court with the Supreme Court authority and argue that the issue has been settled by the highest court in the land and therefore the High Court has jurisdiction to try him for murder. Since the decision of the Supreme Court is binding on all the courts below it, the High Court may rely on this authority to rule that it has jurisdiction and shall henceforth proceed with the hearing of the matter. Notwithstanding, the AG, as the chief legal officer, may also seek clarification on the subject from the Supreme Court.
From my own legal point of view, and this point is shared by many, the AG has got it right by charging Yankuba Touray with murder. Any lesser offence would have given him room to be granted bail. I think custody is the appropriate home for Yankuba Touray and perhaps, the restriction of his liberty, being ferried to the High Court every week or so from Mile II, amidst other commons criminals, will teach this thug a lesson or two about life, more so, humility and wisdom.
For now, the pain and suffering that the family of Ousman Koro Ceesay endured for twenty-four years, will not be erased. However, they may be able to take some solace from knowing that the long arm of the law has finally caught up with one of the perpetrators who bludgeoned their loved one to death. Justice will finally be done. At least, as a nation, we may begin to close that dark chapter of our past while we make small steps towards creating an enduring future.
Abdoulie Fatty is a lawyer at A. Fatty & Co. He previously served as a Magistrate in Banjul. He studied in the U.K and was called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice and his LLM Dissertation looked at truth commissions and transitional justice.
