The Supreme Court of The Gambia has ruled that the National Assembly, in passing legislation that authorizes the President to grant amnesty to individuals disqualified from holding public office by virtue of the findings of a commission of inquiry, acted within the bounds of its constitutional authority and that the Commission of Inquiry (Amendment) Act, 2023 is constitutional.
The Court in a unanimous judgment of a five-member panel dismissed a constitutional challenge brought by the Coalition of Progressive Gambians (CoPG) and journalist Kemeseng Sanneh, popularly known as Kexx Sanneh against the Attorney General and the Clerk of the National Assembly.
The landmark ruling settles a hotly contested constitutional debate over the extent of the Parliament’s legislative powers and validates and enforces the 2023 amendment.
The matter was regarding the Commission of Inquiry (Amendment) Act, 2023 which was passed by National Assembly on September 2, 2023 The legislation created a legal mechanism for the President to grant amnesty to persons disqualified from holding public office on the basis of the findings of a commission of inquiry.
Prior to the amendment, such disqualifications were generally regarded as final consequences arising from the recommendations of commissions of inquiry. The new law gives the President the discretion to lift or mitigate those sanctions.
The applicants argued that Sections 19, 20 and 21 of the amendment were inconsistent with Sections 200 to 206 of the 1997 Constitution, which establish the legal framework governing commissions of inquiry. They argued that the National Assembly had gone beyond its constitutional powers in passing legislation that in effect lowered the legal weight of commission findings.
The plaintiffs say the President’s power to grant amnesty erodes the integrity, independence and binding effect of commissions of inquiry which are mandated to promote accountability, transparency and good governance in matters of public interest.
The key constitutional question before the Court was whether Parliament had the power to pass legislation authorising the Executive to lift or reduce sanctions upon a finding of commission.
The Supreme Court answered that question in the affirmative, finding that the National Assembly acted within the constitutional limits of its authority and did not violate the Constitution in passing the amendment.
In its ruling, the Court acknowledged the extensive legislative powers of Parliament to regulate the legal consequences arising from commissions of inquiry, thus acknowledging its power to create the statutory framework governing the implementation of their findings.
Speaking to journalists shortly after the judgment, Senior Counsel Lamin J. Darboe, who represented the plaintiffs, said he respected the Court’s decision but disagreed with its conclusions.
“I respect the decision of the Supreme Court, but I disagree with the decision,” Mr. Darboe said.
Asked whether the plaintiffs would seek a review of the judgment before the Supreme Court, Mr. Darboe explained that such an application was unlikely because the ruling had been unanimous.
“The decision was unanimous by the five-member panel,” he said, adding that his legal team would instead consult with their clients on the possibility of pursuing the matter before the ECOWAS Court of Justice.
The judgment means that the Commission of Inquiry (Amendment) Act, 2023 remains in force, preserving the President’s legal authority to grant amnesty to individuals disqualified from holding public office following the findings of a commission of inquiry.
The decision is expected to have significant implications for constitutional governance, the separation of powers, executive discretion and the future operation of commissions of inquiry in The Gambia.
