A Commission is not a criminal court and witnesses keep High Court privileges.
Under the 1997 Constitution, a Commission of Inquiry is mandated to “conduct a full and impartial investigation,” not to prosecute.
Its findings are reviewable, and its witnesses are expressly entitled to “the same immunities and privileges as if [they] were a witness in proceedings before the High Court.” That includes privilege against self-incrimination.
Privilege against self-incrimination applies, especially where prosecution is hinted.Gambian law recognises the long-standing privilege against self-incrimination.
In a recent High Court proceedings, the court addressed the privilege with reference to section 165(c) of the Evidence Act 1994, underscoring that a witness may resist questions that would tend to incriminate them (subject to the court’s control of questioning).
Where a lead counsel signals the witness “has a case” or adopts an adversarial posture, the witness is more, not less, entitled to guard against self-incrimination. Expecting the witness to “own up” on the record, without counsel, is not virtue, it is legally reckless.
The Constitution requires commissions to act fully and impartially. When questioning turns combative or appears outcome-driven, that clashes with the Commission’s fact-finding role.
In Mayor Bensouda’s recent appearance, even the Chair restated the fact-finding mandate and acknowledged the witness’s right to be assisted by a lawyer, reinforcing that a witness need not navigate potentially incriminating questions unrepresented.
Precision in answers is not “semantics”, it’s evidence law.“I did not receive the money; it was deposited into my account”.
In financial/evidentiary terms “receipt” can imply knowing acceptance or control. A third-party deposit may occur without solicitation or contemporaneous knowledge.
Clarifying how funds entered an account and what control was exercised is exactly the kind of precision a prudent witness uses to avoid unintended admissions about knowledge, intent, or benefit. That’s responsible testimony, not evasion.
“I don’t write letters; it was written and I signed it.”
In public bodies the drafter (author) and the signatory may be different. A signature attests to issuance by the office; it does not prove the signatory personally authored the contents or had full factual knowledge beyond what was put before them.
Cross-examination is precisely where counsel must establish the signatory’s knowledge and purpose at the time not assume it.
“I just wrote ‘approved’, a suggestion, not authorising.”Whether “approved” equals authorisation turns on the legal scheme of delegation. The Local Government financial manuals and practice distinguish between recommendations (or political/committee oversight) and the authority to incur expenditure, which rests in management under thresholds (typically the CEO and finance director under the approved manual/council thresholds).
Recent coverage from the LGC has underscored that point: “The authority to incur expenditure is vested in Council through budget approval,” and operational authorisation follows thresholds and the CEO’s sign-off. That makes it entirely plausible that a mayor’s “approved” records policy/oversight, not a binding procurement authorisation.
Cross-examination standards cut both ways.Cross-examination permits leading questions, but it does not permit badgering, mischaracterising answers, or pressuring a witness to surrender legal privilege. The task is to test reliability and credibility within the guardrails of privilege, relevance, and fairness, not to secure self-incriminating sound bites.
Where a witness is told, directly or by implication, that counsel “has a case” against them, insisting on counsel and answering with legal precision is exactly what the Constitution’s fair-hearing protections contemplate.
Commissions may make adverse findings on a civil/administrative standard, and those can be challenged. What they cannot do is convert fact-finding into compelled self-prosecution.
If wrongdoing exists, it should be proved by independent evidence (documents, minutes, bank records, procurement files, witness testimony) not by pushing an unrepresented witness to incriminate himself on the record. That is the rule-of-law way to “hold leaders accountable”.
Demanding that an unrepresented witness “admit” legally loaded conclusions in a live inquiry, particularly amid signals of adversarial intent is not a standard of leadership; it is an invitation to violate basic evidentiary protections.
The Gambia deserves accountability and due process. Those are not opposites; they are twins under our Constitution.
So to those saying that the Lord Mayor, should have accepted responsibility, I say to you, that self- incrimination is not same as taking responsibility nor is it synonymous to accountability.
Now before you take a position that am against lead-counsel, please go on my timelime to see where I was almost a lone voice defending him during the Bob Keita trial when a video recoding of him appeared and showing him in the home of one of the witnesses.
I do not take sides. I hate injustice of any sort no matter how it is dressed.
M R R.
