M.A KHARAFI & SONS LIMITED V THE ATTORNEY GENERAL CIVIL APPEAL NO. GCA 046/2020

M.A KHARAFI & SONS LIMITED V THE ATTORNEY GENERAL CIVIL APPEAL NO. GCA 046/2020

Delivered 1st June 2020

Court of Appeal of The Gambia GCA 046/2020

 CORAM

THE HON JUSTICE A. BAH PCA

THE HON. JUSTICE O.M.M. NJIE JCA

THE HON JUSTICE B.V.P MAHONEY

 Subject Matter: Commission of inquiry

Introduction

By a Notice of Appeal filed on the 26th June 2019, the appellants/applicants seek to challenge the adverse findings of the Commission of Inquiry into the Financial Activities if Public Bodies, Enterprises and Offices as regards their dealings with former President Yahya A.J.J Jammeh and connected matters.

 The specific provisions of the Constitution concerned is sections 200, 204(1), (2) & (3) which deal with Commissions of Inquiry set up in The Gambia.

 Issues

The issues identified by the Court itself are these:

1.     Whether the adverse findings of 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.

2.     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.

Summary of Submission by Counsel for the appellants/applicants

On the issue 1, Counsel for the appellants/applicants submitted that the adverse findings or recommendations of a Commission of Inquiry can indeed be executed with or without a White Paper and that there is no requirement under the Constitution that a White Paper ought to be published before a Commission’s report can be executed, referring to the Ghanaian case of Republic v Charles Wereko-Brobbey &Kwadwo Okyere Mpiani AC/2010. Counsel further submitted that the requirement that is stipulated on the Constitution is for a report to be published by the Government after the Commission of Inquiry submit its report to them.

 On the sub-issue of whether or not a Government White Paper is a legal document, Counsel for the applicants submitted that it is a Government Notice issued pursuant to Section 203 of the Constitution in that Section 3 of the Interpretation Act Cap 4:01 Volume 1 Revised Laws of The Gambia 2009 provides as follows:

 “A Government Notice means any public announcement not of a legislative character made by or by command of the President or by a Minister or public officer”

 Counsel also referred to Sections 202(1) and 203(a) of the Constitution. He submitted that the legal status of a White Paper is to show recommendations made by a Commission and went on to rely on the Ghanaian case of Quayson v AG [1981] CA GLR 295.

 On the second issue identified by the court as to whether an application for stay of execution ought to come to the Court of Appeal as an original as opposed to a repeat application, Counsel for the applicants referred to Section 202(2) and 204 of the Constitution and Rule 32 of the Rules of the Court of Appeal submitted that although a Commission of Inquiry is not a court of law, for the purposes of the said provisions it may be regarded as a court in fulfilment of the conditions mentioned in the said section 202(2) and Rule 32.

 Counsel submitted that because the Commission of Inquiry had a limited life span and is now non-existent, the provisions of Rule 32 on repeat application cannot apply to the findings. Counsel for the applicant also made the point that the by virtue of section 204 of the Constitution making Commission of Inquiry appealable to the Court of Appeal, applications for theirs stay of execution should, as of right, be made to the Court of Appeal as well.

 Summary of Submission by Counsel for the respondent

On whether the adverse findings or recommendations of a Commission of Inquiry can be executed, Counsel for the respondent/ Attorney General answered that the adverse findings or recommendation of a Commission of Inquiry cannot be executed without a White Paper, placing reliance in Sections 203 and 204 of the Constitution.

 Counsel further submitted that the adverse findings or recommendations are merely advisory and not binding and he cited the case of The State v Abdoulie Conteh [2002-2008] 1GLR 150 at 177 where it was stated thus:

 “The report of the Commission of Inquiry is not a decision but consists of recommendations only. The inconclusiveness of the findings and recommendations of the Commission of Inquiry arise from the fact that the proceedings were investigatory, and that Government still has to decide whether or not to take action on them.”

 Counsel for the Attorney General made the clarification that the findings of a Commission of Inquiry are treated as a judgement only for the purpose of an appeal. He further relied on the Supreme Court case of Feryale Ghanem v Attorney General, Civil Suit No. SC 001/2018, wherein it was held that a Commission of Inquiry being a creature of the executive is not an adjudicatory body; its findings and recommendations are subject to Government approval as the outcome of its work is determined by a reaction of the President of the Republic.

Therefore, for Counsel for the respondent, the findings or recommendations of a Commission of Inquiry are subject to the publication of a White Paper and cannot be acted upon or executed without it.

On 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, Counsel for the respondent/ Attorney General, referring to Rules 31 and 32 of the Rules of the Court of Appeal submitted that an application for stay of execution of the findings or recommendation of a Commission of Inquiry ought to come to the this court as an original application, the reason being that once a Commission submits its report, it ceases to exit.

 Counsel for the respondent/Attorney General also made reference to the Court of Appeals recent decision in the case of Toni Ghatas v The Attorney General, Civil Appeal No. 046/2019, a ruling delivered on the 4th March 2019 and where an original application for stay of execution of the findings of the same Commission of Inquiry that is under consideration here was granted by another panel of this Court.

 Decision

1.     That adverse finding or recommendations of a Commission of Inquiry under the Laws of The Gambia are not judgements or orders. The court relied section 200 of the 1997 Constitution which deals with the functions of a Commission of Inquiry, section 7 of the Commission of Inquiry Act and the case of Feryale Ghanem v. Attorney General Civil Suit No. SC: 001/2018, where Hon Chief Justice Hassan B. Jallow enunciated that:

 “The Commission is nor a law-making body; it has no legislative powers and does not fall within the legislature; it is an investigative fact finding body which makes findings and recommendations that are subject to the approval of the government. Whilst the Commission has the duty to act fairly, impartially and independently it is nonetheless not an adjudicatory body. It is not a court of law, superior or otherwise.”

 As such, what a Commission of Inquiry comes up with at the end of its mandate is that it makes finding and recommendations that are subject to the Government of the day. Thus, a Commission of Inquiry does not and legally cannot render a judgement or a final order.

2.     That the application for a stay of execution cannot legally be brought in respect of Commission of Inquiry’s recommendation or finding as same, with or without a White Paper, is not a judgement or court order lawfully capable of being executed.

3.     In view of the same positions, the court deemed its futile to deal with the courts second issue of whether an application for stay of execution of an adverse findings and recommendations of a original as opposed to a repeat application since either way such application would legally be incompetent. The application for stay of execution is thereby dismissed.

4.     No order as to costs.

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