Nullifying a Constitutional provision: why the Court of Appeal is wrong in Kharafi
Updated: Jun 19, 2020
If it can dance, M. A. Kharafi & Sons Limited (the Applicant) may be raucously performing the Rumba at the shockingly erroneous ruling of the Gambia Court of Appeal (GCA) in its case against the Attorney General, the formal custodian of cases against the State.
In M. A. Kharafi & Sons Limited v. The Attorney General, Civil Appeal No: GCA 046/2019 (Kharafi), an appeal emanating from the “Commission of Inquiry into the Financial Activities of Public Bodies, Enterprises and Offices as Regards their Dealings with Former President Yahya A. J. J. Jammeh and Connected Matters” (the Janneh Commission), the GCA dismissed an application for stay of execution but in the process, and rather incomprehensibly, effectively decided the substantive appeal in favour of the Applicant.
The ruling defies explicit Constitutional provisions, reduces Commissions of Inquiry to nothingness, and arrogates to the GCA powers it does not and can never have.
Affected by “adverse findings and recommendations” by the Janneh Commission, the Applicant was duly notified as required by law. It caused a Notice of Appeal to be filed at the GCA against the adverse findings that it must pay “USD2,367,426 to Government plus interest at 5% per annum from 30 June 2004 to 29 March 2019. After payment of its said liability Kharafi’s said lease over Kairaba is to remain unchallengeable”.
To forestall any possibility of the Government executing, the Applicant filed a stay, that is, an order prohibiting the Government from selling its assets in fulfilment of adverse findings against it pending the determination of the appeal.
Both sides filed and adopted written arguments on the issues at play as they understood them.
But the GCA had other ideas. In its own words:-
“After the said briefs were adopted and the matter set for ruling, the court on its own accord, bearing in mind the legal issues thrown up by the motion for stay of execution, identified two main issues and in accordance with the law and practice of the Court, invited Counsels on both sides to file briefs or argument in relation to those supplementary issues”.
The GCA ordered briefs thus:-
“Whether the adverse findings or recommendations of a Commission of Inquiry can, as a matter of law, be executed with or without a Government White Paper and whether or not a Government White Paper is a legal instrument”.
“Whether an application for stay of execution of the adverse findings and recommendations of a Commission of Inquiry should come to the Court of Appeal as an original as opposed to a repeat application in view of Sections 202(2) and 204 of the Constitution and Rule 32 of the Rules of this Court”.
On Issue 1, the Applicant accepts adverse findings can be executed with or without a White Paper, a Government notice and public announcement not of a legislative character that conveys the Government position on the findings and recommendations by a Commission.
For the State, adverse findings cannot be executed without a White Paper as Commission proceedings are merely investigatory and treated as judgment only for the purpose of appeal.
Effectively, both sides agree that adverse findings against the Applicant can be executed as Government released a White Paper on the Janneh Commission report. The unsuspecting counsel were about to be treated to a most elaborate interlocutory show at the GCA.
In his “own analysis and conclusion on the first issue set out by the Court”, Honourable Justice O. M. M. Njie, Justice of Appeal (Justice Njie) asserts:
“Let me at the onset state that because of the legal requirements that need to be met for an application for stay of execution to be granted, it is imperative that the court resolves the first issue it set out to see whether it is actually necessary to deal with the substantive application for stay of execution itself.
It can clearly be seen from the Notice of Adverse Findings before the Court that what the applicants are seeking a stay of execution of, is the recommendations (albeit strong ones) of the said Commission of Inquiry. It was precisely for that reason that the court itself asked the question whether the adverse findings or recommendations of a Commission of Inquiry can, as a matter of law, be executed, with or without a Government White Paper.
The Court posed that question because ordinarily it is judgments or orders of a Court of law that can, as a matter of law, be executed”.
Undoubtedly, the question embodies its answer.
In addressing the authorities relied on by the Applicant, Justice Njie states that “… all the said cases … together with the principles enunciated therein, are cases dealing with stay of execution of Court orders or judgments and not with stay of execution of the adverse findings or recommendations of Commissions of Inquiry”.
The GCA also said the Sheriff only “… enforces judgements or orders of court …” and “… as far as execution and stay of execution are concerned, the law, both in this country and in England refer only to judgments and orders and nothing else.
Now, are the adverse findings or recommendations of a Commission of Inquiry under our laws judgments or orders? I do not think so”.
Placing reliance on Section 202 (1) of the Constitution, Section 7 of the Commission of Inquiry Act, as well as on his questionable of a Supreme Court pronouncement in Feryale Ghanem v Attorney General, Civil Suit No. SC: 001/2018, Justice Njie again:-
“It is therefore clear from the said provisions of the Constitution and the Commission of Inquiry Act, and the said dictum of His Lordship the Chief Justice that a Commission of Inquiry does not adjudicate between the State and a person who appears before it but that it carries out an investigation into the issues and matter that are within its terms of reference as per the legal instrument that established it. Its report, submitted to the Executive Branch of government, is neither a judgment nor an order which is capable in itself of being executed as perceived by the law”.
In the circumstances, “… what a Commission of Inquiry comes up with at the end of its legal mandate is that it makes findings and recommendations that are subject to the approval of the Government of the day. Thus a Commission of Inquiry does not and legally cannot render a judgment or a final order. In other words, a Commission of Inquiry cannot legally render a binding decision which may be executed or enforced as if it were a judgment or order”.
Now at the very cusp of forbidden territory, Justice Njie’s definitive assertion puts him within striking distance of assaulting the Constitution.
But he backtracks nimbly and placed reliance on 120(2) of the Constitution that “the judicial power of The Gambia is vested in the Courts and shall be exercised by them according to the respective jurisdictions conferred on them by law”.
Unsure of his footing, the Justice of Appeal acknowledges section 204(2) of the Constitution:
“A person against whom any such adverse finding has been made may appeal against such adverse finding to the Court of Appeal as of right as if the finding were a judgment of the High Court; and on hearing of the appeal the report shall be treated as if it were such a judgment”.
A “Judgment” of the High Court!
And what did Justice Njie say on that specific point? In the super-heavy words of a Justice of Appeal, “… as far as execution and stay of execution are concerned, the law, both in this country and in England refer only to judgments and orders and nothing else.
But in very clear terms, section 204(2) of the Constitution categorically says that an adverse finding should be treated as if it “… were a judgment of the High Court …”.
Where the Constitution speaks even the royal standing of the GCA counts for nothing!
Driving home the point, what if the GCA upheld a Commission of Inquiry! Can it enforce an adverse finding? Clearly the implicit jurisdictional interposition propounded in Kharafi by Justice Njie runs counter to the explicit command of section 204(2) of the Constitution.
Running through the long winded ruling on a simple stay application is the assertion that a Commission of Inquiry has no jurisdiction, no mandate whatsoever to issue binding and legally enforceable adverse findings and or recommendations.
The logical corollary is to ask why it is vested with the Constitutional authority to issue adverse findings and or recommendations.
To what end would it be vested with the authority of a High Court Judge.
To what end would its report be equivalent to a High Court Judgment.
Without question, the Constitution created a special arena in a Commission of Enquiry. The rule of law principle implicated in this special dispensation are not competently if at all ventilated by Justice Njie and his ruling pretends to powers no court in The Gambia can have, i.e., the legal authority to nullify a Constitutional provision.
Even if the Supreme Court said in Feryale Ghanem that “… a Commission of Inquiry being a creature of the executive is not an adjudicatory body …” the intrinsic principles enunciated in the case are either imperfectly understood or wrongly applied by Justice Njie.
I merely state that in appropriate circumstances, Commission of Inquiry adverse findings continue to be upheld by the Supreme Court.
In addition, the idea that a Commission of Inquiry is “a creature of the executive” is a questionable principle, a dubious argument. A Commission of Inquiry is a creature of the Constitution just like the office of Judge. The Executive appoints both. Are Judges, and nominated members of the National Assembly “creatures of the executive”?
If as suggested by Justice Njie an adverse finding by a Commission of Inquiry suffers from jurisdictional impurity, not even the Supreme Court can uphold or enforce its decision. And the Supreme Court continues to do exactly that even in this 2020.
In the circumstances Justice Njie’s reliance on Feryale Ghanem is a merely theoretical construct with no practical application on the enforceability of the adverse findings of a Commission of Inquiry in light of recent judgments by the Supreme Court.
The larger import of Justice Njie’s ruling is articulated thus:
“If, following the publication of a report of a Commission of Inquiry, together with any adverse findings and or recommendations, the Executive intends to have imposed any penalty or to benefit from any relief that it would ordinarily not be entitled to without a judgment or Court order, then in my view the Executive must take the requisite Court action, whether Civil or Criminal, in order to have those penalties imposed or to benefit from those remedies that it may desire.
I say this because since the Commission’s report, with or without a White Paper, cannot be enforced/executed as would be the case of a judgment or court order, the same cannot be relied on to impose the requisite sanction.
If the intention was for a Commission of Inquiry to have the power to impose criminal penalty or to grant civil remedies which could be execute/enforced, then in my view, that would have been clearly spelt out in the Constitution or the Act”.
In Justice Njie’s words, Ghana’s post-1969 Commissions “… attracted automatic Constitutional sanctions until the person affected succeed in setting aside the findings on appeal … a public officer who … misused or abused his office, or wilfully acted in a manner prejudicial to the interest of the State and the findings have not been set aside on appeal or judicial review, shall not be qualified to be a member of parliament … shall not be qualified for election as the President of Ghana”.
In Justice Njie’s considered judicial view, a Commission of Inquiry is a waste of time as “…the Executive must take the requisite Court action, whether Civil or Criminal, in order to have those penalties imposed or to benefit from those remedies that it may desire”.
Incredible that a Justice of Appeal thinks he can nullify a Constitutional provision!
There is no nicer way than to say that Justice Njie’s assertion on another front is completely erroneous in light of explicit Constitutional provisions he failed to appropriately consider.
Clearly his parliamentarian and presidential qualification issues with reference to Ghana are weak arguments that cannot sustain his conclusion about “automatic Constitutional sanctions”. Ghattas, Karafi, and Tarek Musa are unlikely to run for public office but their liquidity may induce public officers to act in manners detrimental to the public interest. Why run for office if your cash gives you the leverage to control the drivers of public power.
That said, I propose to interrogate the validity of “automatic Constitutional sanctions” and whether we can locate them in Gambia’s public policy arsenal in the Constitutional domain. It is most astounding that a Justice of Appeal will make a pronouncement of such critical import without so much as bothering to cross check the Constitution and in the process rendering his entire justification of utterly dubious credibility.
For example, section 62(3)(c) of the Constitution states that “a person who, while holding public office in The Gambia, has been found liable for misconduct, negligence, corruption or improper behaviour by any commission or committee of inquiry established by law shall not be qualified for election as President”.
Similarly, section 90(1)(e) of the of the same Constitution states:- “no person is qualified for election as a member of the National Assembly if he or she has been found by the report of a commission or committee of inquiry (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the State or misused or abused his or her office, or wilfully acted in a manner prejudicial to the interests of the State, and the findings have not been set aside on appeal or judicial review”.
In Kharafi, the GCA adventured beyond the limited question before it, i.e., whether or not to grant a stay of execution and on that journey of excess pretend to powers it does not have.
With the same Court’s decisions in Toni Ghattas v The Attorney General, Civil Appeal No:-02/2019, decided 03 March 2020, and Tarek Musa, 1st Defendant, T. K. Motors Limited, 2nd Defendant, Civil Appeal No. GCA/020/2019, decided 09 June 2020, the issue of stay of execution over a Commission of Inquiry is ready for Supreme Court consideration.
Over then to the Apex Court!
Lamin J. Darbo
Dabanani Law Centre, Sukuta Town, West Coast Region
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