Jammeh v Attorney-General (2002) AHRLR 72 (GaSC 2001)

Jammeh v Attorney-General (2002) AHRLR 72 (GaSC 2001)

Jammeh v Attorney-General

Supreme Court, 29 November 2001    

Judges: Lartey CJ, Jallow JSC, Wali JSC, Ogwuegbu JSC and Amua-Sekyi JSC         

Previously reported: [1997-2001] GR 839       

Challenge on the constitutionality of a Constitution Amendment Act passed by the National Assembly

 Locus standi (8-11, 51, 53, 54)         

Constitutional supremacy (21-28, 32)          

Political participation (amendment of Constitution, 25-28, 31)           

Severability (36-40, 62, 63, 65, 66)  

Jallow JSC

[1.] The plaintiff filed in and caused to be issued out of this Court in the exercise of its original jurisdiction pursuant to sections 5 and 127 respectively of the 1997 Constitution a writ of summons against the Attorney-General as the defendant. The reliefs sought in the writ are firstly, a declaration that the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001), passed by the National Assembly on 15 May 2001 and assented to by the President on 25 May 2001, was made in excess of the powers conferred on the National Assembly and the President; and secondly, a declaration that the said Amendment Act, ie 6 of 2001, is by reason thereof null and void and of no effect.

[2.] At the hearing of the suit, counsel for the Attorney-General raised a preliminary objection to the suit, to wit, that the honourable court lacks jurisdiction to entertain this matter as the action is incompetent'. The grounds of the objection were threefold: that the writ of summons allegedly not having been signed by counsel as required by rule 45(1) of the Rules of the Supreme Court 1999, there was no writ proper commencing the action in the Court; that the plaintiff is not competent to challenge the validity of a legislation which he, as a member of the National Assembly, participated in making'; and that the plaintiff has no locus standi to seek the reliefs.

[3.] After hearing argument of counsel on the preliminary objection, the Court invited the parties to proceed to address it on the merits, having reserved its ruling on the objection to be incorporated in the judgment.

[4.] Rule 45(1) of the Rules of the Supreme Court, 1999 provides as follows:

Except as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of the Court shall be commenced by writ in form 27 set out in Part III of the Schedule to these Rules which shall be signed by the plaintiff or his counsel.

[5.] While the rule imposes a requirement of signature by counsel or the plaintiff on the writ, form 27 in the Schedule to the Rules itself makes no provision for the signature of either. Instead, it requires the writ of summons to be signed by a justice of the Supreme Court. Neither the rule nor form 27 indicates precisely where on the writ the signature of counsel or the plaintiff should be affixed. As a matter of fact, the writ has been backed in the normal way with the signature of counsel for the plaintiff thereto. It is also signed by a justice of the Supreme Court. In my view, the requirements of rule 45(1) have thus been substantially complied with in respect of signature. No miscarriage of justice has been occasioned to the defendant nor has the object of the rule, which is to provide authentication of the document, been defeated. Accordingly any lapses in this respect would be curable by the application of rule 73 of the Rules of the Supreme Court, 1999.

[6.] Counsel for the Attorney-General has, in canvassing his second ground of objection, urged this Court to follow the judgment of the Supreme Court of Nigeria in the case of Adesanya v President of Nigeria (1981) NSCC 146. In that case, the plaintiff, who was a member of the Senate of the National Assembly, sought a declaration from the courts to the effect that the appointment of the second defendant by the first defendant as the chairman and member of the Federal Electoral Commission was unconstitutional and null and void in that, the second defendant, at the time Chief Judge, was by reason thereof, disqualified from the membership of such a commission. The appointment had, in accordance with the provisions of the Nigerian Constitution, been the subject of confirmation proceedings in the Senate in which the plaintiff as a senator had participated, even if his own views had not at the end of the day prevailed. The Supreme Court per Fatayi-Williams CJN held (as stated in the headnote at page 147) that the complaints of the plaintiff did not concern his

... civil rights and obligations as person. They pertain to him not as an individual exercising his civil rights and obligations, but as a Senator (a political representative) exercising his rights to vote in the confirmation proceedings in the Senate.

[7.] To that extent, therefore, the plaintiff senator having participated in the proceedings and not having had his will, would not be permitted to carry the political debate in the legislature to the court. He was held to be incompetent to bring the action on this ground. That decision, which is of course not binding on this Court, must be viewed against its own peculiar facts and circumstances.

[8.] According to the statement of the plaintiff's case (paragraphs (1) and (3)), the plaintiff is a politician and the Minority Leader in the National Assembly. He participated in the debate on the Bill in the National Assembly and actually voted against the measure which the majority eventually adopted. These allegations are admitted by the defendant in paragraphs (1) and (2) of his statement of case. Does the status of the plaintiff as a Member of the National Assembly and his participation in the National Assembly's debate on, but in opposition to the Bill render him incompetent to challenge the constitutional validity of the Constitution of the Republic of The Gambia 1997, (Amendment) Act, 2001, hereafter referred to as the Amendment Act? I do not believe it does. On the contrary, it would appear that his status as a member of the institution in which the legislative authority of the Republic is partially vested by virtue of section 100 of the 1997 Constitution, imposes a greater responsibility in ensuring that such legislative measures do not contravene the Constitution. The cause the plaintiff is pursuing is not a political one internal to the proceedings in the National Assembly and peculiar only to his status as a legislator.

[9.] Every citizen of The Gambia is competent, subject only to express restrictions and limitations, to seek redress in the courts against alleged violations of the constitutional order: see United Democratic Party v Attorney-General, Supreme Court, 14 February 2001. That competence vested in the general citizenry is not diminished by one's status as a legislator. The situation might have been different if the plaintiff had voted in favour of the measure; for he cannot then be allowed to mount a legal challenge to what he has expressly supported and approved as legislator. The plaintiff has, however, been consistent in his opposition to the measure and before these courts his challenge is based on legal and constitutional, not political, grounds. I find no merit in this ground of objection.

[10.] The defendant's third ground of objection is essentially that the plaintiff has no interest peculiar to himself to pursue this case and that he is a stranger who lacks locus standi to institute the proceedings. A similar objection had been raised in the case United Democratic Party v Attorney-General (supra). I held in that case that:

The law cannot regard the ordinary citizen, who wishes to assert his right to challenge in a court of law what he perceives to be a contravention of the Constitution, as an interloper, a stranger to the case, busybody who is meddling with what does not concern him. It does, indeed, legitimately concern him and unless there are express statutory limitations, such as I have already referred to in relation to section 37 of the Constitution concerning the enforcement of fundamental rights and freedoms, a person's interest as a citizen is legally sufficient to vest him with the competence to institute legal proceedings to challenge alleged contraventions of the Constitution with a view to ensuring respect for constitutional order.

[11.] Thus a citizen does not need to demonstrate any particular interest peculiar to himself in order to vest him with locus standi to institute such proceedings. The plaintiff falls within that category. As a matter of fact, the judgment of Fatayi-Williams CJN cited by counsel for the Attorney-General provides ample support for such a proposition. Fatayi-Williams CJN in the case of Adesanya v President of Nigeria posed the question of locus standi in relation to allegations of constitutional contravention in these terms at page 156 of the Report:

If, in a developing country like Nigeria with a written Constitution, a legislative enactment appears to be ultra vires the Constitution or an act infringes any of its provisions dealing with Fundamental Rights, who has locus standi to challenge its constitutionality? Does (or should) any member of the public have the right to sue? Or should locus standi be confined to persons whose vested legal rights are directly interfered with by the measure, or to persons whose interests are liable to be specially affected by its operation, or to an Attorney-General who is a functionary of the Executive Branch?

Having posed the question, the learned Chief Justice of the Federation answered it thus at page 157:

To deny any member of such a society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions or our Constitution, or that any law passed by any of our legislative Houses, whether Federal or State is unconstitutional, access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organised disenchantment with the judicial process.

His Lordship declared further at pages 159-160:

To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of sections 1 and 4 of the Constitution which I have enumerated above to be able to go to court and ask for the appropriate declaration and consequential relief if relief is required. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigerian Constitution. Indeed, it is his civil right to see this is so. This is because any law that is inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of sections 1 and 4 to which I have referred earlier (The emphasis is mine).

[12.] It was for these foregoing reasons that I dismissed the preliminary objections of the learned Attorney-General and proceeded to hear the case on the merits.

[13.] I now turn to the merits of the case. The plaintiff in his statement of case filed pursuant to rule 46 of the Rules of the Supreme Court together with the writ claims that the Amendment Act (6 of 2001) purports to amend section 1(1) of the Constitution, which is an entrenched provision, without complying with the procedure set out in section 226(4) of the Constitution in respect of such entrenched clauses, to wit, no referendum had been held to approve the amendment. Secondly, the plaintiff claims that the Amendment Act also purports to amend paragraph 13(1) of Schedule II to the 1997 Constitution when paragraph 17 of that schedule categorically prohibits the amendment or repeal of that paragraph. He submits that these contraventions render the amendments, indeed the whole Bill, null and void.

[14.] The defendant Attorney-General filed a statement of his case on 9 July 2001 in which he averred by way of defence that the National Assembly complied with the necessary provisions in amending the above sections of the 1997 Constitution' (paragraph (5) of statement of case). He pointed out in paragraph (4) of his statement that the Amending Act amended several sections other than the ones in question and that the assent of the President to the former is valid (paragraph (4)).

[15.] The Amendment Act (6 of 2001), which the plaintiff prays the Court to invalidate, provides in a schedule for a numbered of amendments to the Constitution of the Republic of The Gambia, 1997. The Act declares the amendments as having been made in accordance with the provisions of section 226(2) of the Constitution'. I shall be reverting to that issue later.

[16.] Although the plaintiff seeks the wholesale invalidation of the Act, his quarrel with it is, essentially, only in relation to the purported amendments to section 1(1) of the Constitution and paragraph (13) of Schedule II to the Constitution.

[17.] Learned counsel for the Attorney-General conceded at the hearing that no referendum had been held to seek the approval of the populace for the amendment of section 1(1) of the Constitution. He also conceded that paragraph 17 of Schedule II to the Constitution prohibits the National Assembly from amending or repealing, inter alia, paragraph 13 of the said Schedule. The conclusions to be drawn from these admissions are inescapable.

[18.] In a country without a written constitution but nonetheless governed by constitutional conventions as in the United Kingdom, the sovereignty and legislative supremacy of Parliament is the norm. By this supremacy is meant that there are no legal limitations upon the legislative competence of Parliament'. (See Wade & Philips - Constitutional and Administrative Law (9th ed) by AW Bradley at page 57. The editor of this well-established treatise on British constitutional practice cites Dicey as drawing from such supremacy the fact that Parliament has under the English Constitution' the right to make or unmake any law whatever; and further that no person or body is recognised by the Law of England as having a right to override or set aside the legislation of Parliament.

[19.] The treatise describes the doctrine of parliamentary supremacy as consisting essentially of a rule which governs the legal relationship between the courts and the legislature namely that the courts are under a duty to apply the legislation made by Parliament and may not hold an Act of Parliament to be invalid or unconstitutional

[20.] Erskine May in his Parliamentary Practice (19th ed, Butterworths) stresses the same point that the British Constitution' has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction'. He cites Sir Edward Coke who opined that the power of Parliament is so transcendent and absolute, as it cannot be confined either for causes or persons within its bounds'.

[21.] In The Gambia, with a written constitution based on the separation of powers, the position is different. Supremacy reposes in the Constitution, whether or not such is expressly declared by that instrument and not with the National Assembly or any other organ of state. Section 4 of the 1997 Constitution provides for the Constitution as the supreme law of the land. It reads as follows:

This Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.

[22.] Section 5 empowers a person who alleges that an act of the National Assembly or any action or omission of any other person or authority is in contravention of the Constitution to seek a declaration from a competent court to that effect.

[23.] Thus whole section 100(1) of the Constitution vests the legislative authority jointly in the National Assembly and the President, exercised respectively through the passing of Bills and the assent thereto. The exercise of such authority is subject to the restrictions and limitations imposed by the Constitution. Such limitations arise in a number of ways. Firstly, under section 4 of the 1997 Constitution, any enactment which is inconsistent with the provision of the Constitution is void to the extent of that inconsistency. Thus in relation to the 1970 Constitution and in the case of Attorney-General of The Gambia v Jobe (1985) LRC (Constitutional & Administrative) 556, the Judicial Committee of the Privy Council, in an appeal from The Gambia ruled section 8(5) of the Special Criminal Court Act (10 of 1979) invalid, null and void as it was ultra vires and a plain and flagrant violation of the right to a presumption of innocence guaranteed under section 20(2) of the 1970 Constitution. Similarly this Court by a four to one majority decision (Amua-Sekyi JSC dissenting) in the case of Jeng v Gambia Commercial & Development Bank Ltd, delivered on 7 December 2000, has ruled that section 23 of the AMRC Act 1992 (23 of 1992), by purporting to limit the rights of appeal of aggrieved parties not to extend beyond the Court of Appeal in proceedings involving that corporation, is ultra vires section 128(1)(a) of the 1997 Constitution guaranteeing a right of appeal to the Supreme Court and therefore null and void and of no effect. The said section 128(1)(a) of the 1997 Constitution provides for appeals to the Supreme Court as of right ... (a) from any judgment of the Court of Appeal on an appeal in any civil or criminal cause or matter from a judgment of the High Court in the exercise of its original jurisdiction.

[24.] Some limitations on the legislative authority are of a procedural nature. A special procedure is provided for effecting amendments, where they are permissible, to the Constitution. The special nature of such a procedure is justified by the fact that the Constitution is not akin to any ordinary law. It is the supreme law and the source of validity of all other laws and the authority for all public actions. Thus section 226(2) of the Constitution requires every Bill for the amendment of the Constitution to be published in two issues of the Gazette with an interval of not less than three months between the two publications and an interval of not less than ten days between the last publication and the introduction of the measure into the National Assembly. In order to pass the Assembly for assent, the Bill must be supported by the votes of not less than three quarters of all the members of the National Assembly.

[25.] Section 226(4) of the Constitution provides a further condition in relation to what is referred to as entrenched' clauses of the Constitution. Section 226(7) lists those clauses. Among them is section 1 of the Constitution which was purported to have been amended by the Amendment Act (6 of 2001). Any alteration of an entrenched clause - whether by way of repeal, addition, amendment, etc - must, in order to be valid, in addition to the requirements of section 226(2), satisfy the following conditions:

(a) the Bill must be referred by the Speaker to the Independent Electoral Commission (IEC);

(b) the IEC must within six months of the reference hold a national referendum on the Bill;

(c) at least fifty per cent of those qualified to vote at the referendum must vote at the referendum; and

(d) at least seventy-five per cent of those voting must have supported the Bill.

[26.] The Attorney-General has conceded that no referendum has been held to seek the approval of the electorate for the Bill in accordance with section 226(4) of the Constitution. And the Amendment Act (6 of 2001) complained of, declares that it was enacted by the President and the National Assembly and assented to by the President on 25 May 2001.

[27.] All these requirements are conditions precedent to the valid alteration of any provision of the Constitution which has been entrenched by section 226(7) of the Constitution. Failure to comply with these conditions renders such a purported amendment of the Constitution and assent thereto invalid, null and void and of no effect. It is clear, however, from a reading of the chapeau to section 226(4) of the Constitution, that no measure to alter an entrenched provision can be validly passed by the National Assembly or validly assented to by the President unless the aforesaid conditions precedent are satisfied. Section 226(5) further emphasises this point by the requirement that the Independent Electoral Commission must certify compliance with these conditions and ensure that the certification(s) shall be delivered to the President when the Bill is presented for assent'.

[28.] In the instant case, the Bill was passed by the National Assembly, presented to and assented by the President before one of the conditions, namely, the holding of a referendum had been complied with. Accordingly, I find and do so hold that the purported amendment to section 1(1) of the 1997 Constitution contained in the Schedule to the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001) purporting to substitute for that section a new one declaring that The Gambia is a sovereign Secular Republic' is ultra vires the Constitution, null and void and of no effect, by reason of non-compliance with the provisions of section 226(4) of the Constitution.

[29.] The legislative authority is further limited by the Constitution by way of prohibitions against the exercise of its legislative functions in respect of certain specified matters. Thus, for example, section 100(2)(a) of the Constitution declares that the National Assembly shall have no power to pass a Bill to establish a one-party state. Of immediate concern to this case is that paragraph 17 of the Second Schedule to the Constitution provides as follows: The National Assembly shall have no power to pass a bill to amend or repeal this paragraph or paragraphs 11, 12, 13, or 14, of this Schedule.'

[30.] Paragraph 13 of Schedule II to the Constitution, provides for immunity from legal proceedings of members of the Armed Forces Provisional Ruling Council or their appointees for acts or omissions in the performance of their official duties.

[31.] It is clear that the purported amendment to paragraph 13 of the Constitution contained in Act 6 of 2001 is ultra vires paragraph 17 of the Second Schedule to the Constitution which prohibits any such alteration, thus is null and void and of no effect. And I so hold.

[32.] It cannot be over-emphasised that, given the supremacy of the Constitution over all other laws and acts or omissions of public authorities, it is important for all those involved in the exercise of the legislative authority of the state to exercise due care and caution to ensure that such legislation is consistent with the provisions of the Constitution and that it is enacted in accordance with the requirements and procedures of the Constitution. Failure to comply with these legal requirements will attract the kind of consequences which have befallen the purported amendments to section 1(1) and paragraph 13 of Schedule II to the Constitution.

[33.] Although the plaintiff's real complaint is in relation to these purported amendments, the relief he seeks, and urged upon the Court by counsel, is that the Amendment Act (6 of 2001) should in toto be declared null and void as the whole Act is alleged by the plaintiff to have been made in excess of the powers conferred by the Constitution. Counsel argued that the requirement of section 226(4) is that the Bill itself containing the proposal to amend an entrenched provision should be submitted to a referendum. That not having been done in this case the whole Bill, should, he submits, be set aside. Counsel for the learned Attorney-General, however, argues that the Court should not, so to speak, throw the baby out with the bath water but should salvage the remaining provisions by severing from the bill those provisions which have been held by the Court to be ultra vires the Constitution and invalid.

[34.] At this stage it is necessary to indicate that the Act is not concerned solely with the two provisions which are specifically challenged by the plaintiff. It contains an extensive range of other amendments relating to unentrenched sections 9, 12, 50-60, 63, 88, 98, 125, 129, 131, 137, 141, 143, 145, 152, 164, 178-182, 184, 192, 195 and 198. These sections deal respectively with citzenship by birth; acquisition of dual citizenship by Gambians, the establishment of a Boundaries Commission charged with the delimitation of constituency boundaries; National Assembly elections; appointments to the offices of Chief and Alkalos; political parties; tenure of the office of President; the composition, meetings and dissolution of the National Assembly; the composition of the Supreme Court; the Court of Appeal and the High Court; the appointment of members of the Special Criminal Court; appeals from decisions of the Cadis courts; qualifications for appointment to the office of Chief Justice; tenure of office of judges; the office of Judicial Secretary; composition of the Judicial Service Commission; the preparation of the annual estimates and the laying of the same before their approval by the National Assembly; the appointment of the Ombudsman; matters relating to the Prisons Service and the Police Force; the establishment by Act of the National Assembly of a Land Commission; and National Youth Service Scheme and the National Council for Civic Education and the extension of the period within which the President may make provision for adjusting any existing law to bring it into conformity with the Constitution.

[35.] With respect to learned counsel for the plaintiff, the Amendment Act (6 of 2001) is not an enactment for amending an entrenched provision of the Constitution. The Long Title of the Act describes the measure as An Act to amend the Constitution of the Republic of The Gambia, 1997 under section 226(2) ...' (The emphasis is mine). Section 2(2) of the Act as well has stated expressly that: The amendments are made in accordance with the provisions of sections 226(2) of the Constitution.' Section 226(2) of the Constitution sets out the procedure and requirements for effecting an amendment to the ordinary, unentrenched provisions of the Constitution. There is no requirement for an amendment falling within this section to be submitted to a referendum. The Amendment Act (6 of 2001) did not require to be submitted to a referendum at least in so far as relates to those amendments which have not been challenged. The case of counsel for the plaintiff might perhaps have been different if the Amendment Act was declared to be an exercise undertaken in accordance with the provisions of section 226(4) of the Constitution. The Amendment Act is thus no more than an ordinary amendment of the Constitution undertaken in accordance with section 226(2). Its defect lies in erroneously purporting to amend other sections which are entrenched by the Constitution and which therefore ought properly to have been dealt with under section 226(4) of the Constitution.

[36.] The real issue, therefore, it seems to me, is whether those provisions of the Amendment Act which have been held to be invalid can be severed from the other provisions whose validity, at least on this score, has not been challenged and the latter allowed to stand on their own.

[37.] The question of severability was exhaustively considered by the Supreme Court of India in the case of Chamarbaugwaklla v Union (1947) SCR 930. The Court was there faced with the question whether the definition of a prize competition in the Prize Competitions Act, 1955, which was wide enough to cover both competitions of skill and gambling competitions could be limited, by a process of statutory construction, to gambling competitions. It was held that on a literal reading of the words of the statute, it could not be so limited and thus applied to both classes of competitions. The extension of the statute to competitions of skill was, however, held to be ultra vires the legislative authority of the Union Parliament and therefore invalid. In determining the issues whether such provisions could be servered from the valid provisions of the Act - an issue decided in the affirmative by the Court - the Supreme Court of India formulated the following guiding principles on severability:

(i) in determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor; the test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid;

(ii) if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety; on the other hand, if they are so distinct and separate that after striking out [what] is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable;

(iii) even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole;

(iv) likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety;

(v) the separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; it is not the form, but the substance of the matter [that] is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein;

(vi) if after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation; and

(vii) in determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it.

[38.] The test of severability has been concisely laid down by the Judicial Committee of the Privy Council in the Attorney-General for Alberta v Attorney-General for Canada [1947] AC 503. In that case, the Court held that certain provisions of the Alberta Bill of Rights Act, 1946, were in pith and substance' legislation relating to banking, a subject-matter within the exclusive legislative competence of the Parliament of Canada under head 15 of section 91 of the British North America Act, 1867, and, accordingly, beyond the powers of the Provincial Legislature to enact'. According to the headnote of the case, it was held in relation to the issue of severability that:

Further, Part 1 of the Act was not severable; the whole Act hung together and Part II being ultra vires there was nothing left which would have any effective operation and the whole Act was therefore invalid.

In reaching this conclusion, the Court set down the test for severability in the following terms:

The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometime[s], been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.

[39.] That test was reiterated with approval and applied by the Board of the Privy Council in the case of Attorney-General of The Gambia v Jobe [1985] LRC (Constitution and Administrative) 556 at 567 when their Lordships held that section 8(5) of the Special Criminal Court Act (10 of 1979) found to be ultra vires the Constitution and therefore invalid, was severable from the rest of that Act.

[40.] Applying the test as elaborated by their Lordships of the Judicial Committee and the Indian Supreme Court with which I agree to the case at hand, it is clear that the offending provisions of the Amendment Act (6 of 2001) have no linkage whatsoever with the other extensive provisions which I had referred to earlier. The latter are independent of the former. What remains is not bound up, inextricably or otherwise, with what has been struck down. Indeed, the National Assembly could have, and perhaps should properly have, separately legislated for the amendments to the entrenched provisions on the one hand, and the ordinary provisions of the Constitution on the other hand. What is left of the Amendment Act (6 of 2001) cannot be regarded as part of a single legislative scheme of which the invalid provisions are an inseparable component nor as the truncated and unenforceable remains of a statute. With the invalid provisions struck out, the remaining provisions retain their coherence and can be enforced without any necessity for alterations or modifications thereto.

[41.] I find and accordingly hold that the purported amendments to section 1(1) of the Constitution and paragraph 13 of the Schedule II to the Constitution respectively are severable and are hereby severed from the Amendment Act (6 of 2001).

[42.] The claim of the plaintiff is accordingly only partially allowed, to the extent that I find and hold that the purported amendments to section 1(1) of the Constitution and paragraph 13 of Schedule II to the 1997 Constitution contained in the Amendment Act (6 of 2001) were made in excess of the legislative powers conferred by the 1997 Constitution and are accordingly null and void and of no effect and are hereby severed from the Act.

 
Lartey CJ

[43.] I have also had the privilege of reading in advance the comprehensive and erudite judgment of my brother Jallow JSC, which sets out the full facts of this matter. I fully concur in the reasoning and conclusions which have just been read. In my respectful opinion, the plaintiff's claim should succeed only in part.

 
Wali JSC

[44.] I have had the privilege of reading in advance, the lead judgment of my learned brother Jallow JSC and I agree with his reasoning and conclusion for partially sustaining the plaintiff's claims.

[45.] My learned brother has ably set out the facts involved in this case and I adopt them. I wish to comment on the issue of locus standi of the plaintiff who, by a writ of summons filed in this Court seeks the following reliefs against the defendant:

(a) declaration that the Bill entitled the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001), passed by the National Assembly on 15 May 2001 and assented to by the President on 25 May 2001 was made in excess of the powers conferred on the National Assembly and the President; (b) a declaration that the Constitution of the Republic of The Gambia (Amendment) Act, 2001 (6 of 2001), is null and void and of no effect.

[46.] The capacity in which the plaintiff brought this action is as follows: The plaintiff is a politician and the minority leader in the National Assembly and as a citizen and member of the National Assembly, he has an interest in ensuring strict adherence to the 1997 Constitution by all persons and institutions irrespective of their position. The defendant is the Chief Legal Officer to the Government of The Gambia and is responsible for all governmental legal matters.

[47.] After filing and exchanging pleadings and statements of respective cases by the parties, the defendant, by way of preliminary objection dated 11 July 2001, sought to impeach the jurisdiction of this Court to entertain the action in that:

(1) there is no writ commencing this matter as required by rule 45(1) of the Rules of the Supreme Court, 1999; (2) Hon Kemesseng Jammeh is not competent to challenge the validity of a legislation which he as a Member of the National Assembly participated in making; and (3) the plaintiff lacks locus standi to seek declaration in reliefs (a) and (b) this action.

[48.] My learned brother has comprehensively dealt with the competence of the validity of the writ of summons and therefore the issue does not need any further comment by me.

[49.] On issue of locus standi of the plaintiff to bring the action, learned counsel for the defendant contended that since the plaintiff had participated in the deliberation and passing of the amendment Bill before it was finally signed into law by the President, he is estopped from litigation in court over the same issue and that he also does not fall within the category of persons contemplated under section 5 of the 1997 Constitution of the Republic of The Gambia.

[50.] But can that statement be correct? Sub-sections 5(1)(a) and (b) provide as follows:

A person who alleges that - (a) any Act of the National Assembly or anything done under the authority of an Act of the National Assembly; or (b) any act or omission of any person or authority, is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.

[51.] Section 5(1)(a) and (b) is clear and unambiguous and must therefore be given its literal meaning. The two sub-sections, in my view, widen the scope of the locus standi of a Gambian citizen to challenge in court with jurisdiction in such matters, a law enacted by the National Assembly which violates a provision of the Constitution or anything done under the authority of such unconstitutional legislation. Likewise a Gambian citizen is conferred with powers and locus standi to challenge, before a court with competent jurisdiction, any act or omission of any person or authority when such act or omission contravenes a provision of the Constitution.

[52.] The role of the court in interpreting and applying the Constitution is purely judicial and it will only play that role when it is called upon to adjudicate, on the legal rights of litigants in an actual and a justiciable dispute. There must therefore be:

            (1) a dispute or controversy between the parties;

            (2) that the dispute or controversy must be real and concrete, not academic or hypothetical;

            (3) that it must affect the legal relations or rights of the parties; and

            (4) that the action must be initiated by due process.

(See Flast v Comen, 392 US 94, Aetna Life Insurance Co v Hapworth 300 US 299; and Adesanya v President of Nigeria [1981] All NLR 1.)

[53.] The issue is whether a party needs necessarily to possess the same interest to give him locus standi to invoke the jurisdiction of the court in order to adjudicate in a constitutional case. A transgression or violation of the Constitution by the government is wrong committed against the whole country and its citizenry. Even the Supreme Court of the United States is noticed now to be shifting from the strict adherence to the locus standi rule to the liberal emphasis of the court's function as a protector of public interest in the enforcement of constitutional limitation and will no longer be deterred by the mere plea of locus standi from considering a challenge to violation or transgression of the Constitution: see Katzanback v Mcchang [1964] 379 US 294; Domorawski v Pfister 380 US 479 and Barrows v Jackson (1953) 346 US 349.

[54.] It is therefore my conclusion that based on section 5(1)(a) and (b) of the 1997 Constitution of The Gambia, the plaintiff in his capacity as an ordinary citizen of The Gambia, is enclothed with legal right and locus standi to institute the present action to challenge the legality and constitutionality of the amendments to section 1(1) and paragraph 13 of Schedule II to the Constitution of The Gambia as contained in the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001), which was assented to without complying with section 226(4) and paragraph 17 of Schedule II to the said Constitution. The amendments to that extent are hereby declared unconstitutional and are therefore null and void, with no legal effect whatsoever. The action therefore partially succeeds.

[55.] It is for these and the detailed reasoning contained in the lead judgment which I hereby adopt that I also hereby dismiss the remaining reliefs sought by the plaintiff.

 
Ogwuegbu JSC

[56.] I have also had the advantage of reading in draft the judgment earlier delivered by learned brother Jallow JSC and I entirely agree with his reasoning and conclusions.

[57.] The facts of the case have been fully set out in the judgment of my learned brother Jallow JSC and it is not necessary for me to set them out here. The plaintiff in paragraph (9) of his statement of case claims the following reliefs:

(a) a declaration that the Bill entitled the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001) passed by the National Assembly on 15 May 2001 and assented to by the President on 25 May 2001 was made in excess of the powers conferred on the National Assembly and the President; (b) a declaration that the Constitution of the Republic of The Gambia (Amendment) Act, 2001 (6 of 2001) is null and void and of no effect.

[58.] The plaintiff contended that:

(i) section 1(1) of the Constitution is an entrenched provision and its amendment must comply with the procedure set out in section 226(4) of the 1997 Constitution; and (ii) paragraph 13(1) of Schedule II to the 1997 Constitution in its paragraph 17 specifically prohibits its amendments or repeal.

[59.] It was the plaintiff's further contention that as result of non-compliance with the provisions of the 1997 Constitution, the entire Bill should be declared null and void and of no effect.

[60.] The defendant in paragraphs (4) and (5) of his statement of case averred as follows:

(4) In further answer to paragraphs (5) and (6) of the plaintiff's statement of case, the defendant avers that the Bill amended other sections, ie sections 9, 12, 50, 51 to 57, 58, 59, 60, 88, 98, 125, 129, 131, 137, 139, 141, 143, 145, 152, 164, 178, 184, 192, 195 and 198 of the Constitution; (5) Also in answer to paragraphs (5) and (6) of the plaintiff's statement of case, the defendant avers that the National Assembly complied with the necessary provisions in amending the above sections of the 1997 Constitution.

[61.] In his oral submission, Mr Olulana, learned Director of Civil Litigation, who appeared for the defendant, conceded that section 226(4) of the Constitution was not complied with in the amendment of section 1(1) of the Constitution and that paragraph 13(1) of Schedule II to the Constitution is a no go area by virtue of paragraph 17 of the said Schedule II. He urged the Court to sever the provisions which ran foul of the Constitution from those that complied with the constitutional requirements and declare the latter valid.

[62.] Section 226(4) of the Constitution provides that a Bill for an Act of the National Assembly containing any of the provisions referred to in section 226(7) thereof shall be subjected to a referendum among other requirements. Section 1(1) of the Constitution is one of such provisions. By paragraph 7 of Schedule II to the 1997 Constitution, the National Assembly shall have no power to pass a Bill to amend or repeal paragraph 13(1) of Schedule II. In the circumstances, the Bill purporting to amend the above two provisions of the Constitution is ultra vires the powers of the National Assembly and the President. I therefore declare the said Amendment Act (6 of 2001) null and void to the extent that it purported to amend the said section 1 (1) of the Constitution and paragraph 13(1) of Schedule II.

[63.] What becomes of the other provisions of the Amendment Act (6 of 2001) is to be determined. Those other provisions complied with section 226(2) of the Constitution. They are capable of maintaining a complete and independent existence capable of separate enforcement without regard to the provisions which I have also declared null and void; see Attorney-General for Alberta v Attorney-General for Canada [1894] AC 31. I do not agree with the contention of the learned plaintiff's counsel that the provisions are not separable.

[64.] The action, therefore, partially succeeds.

 
Amua-Sekyi JSC

[65.] The Constitution of The Gambia, 1997 (Amendment) Act, 2001 (6 of 2001), was enacted by the President and the National Assembly on 25 May 2001 and published as Supplement C to The Gambia Gazette no 6 of 4 June 2001. The Act amended various provisions of the 1997 Constitution, among them section 1(1) and paragraph 13 of Schedule II to the Constitution. Counsel for the Attorney-General concedes that to be valid, the amendment to section 1(1) ought to have been submitted to a referendum for approval under section 226(4) and that paragraph 17 of Schedule II had expressly declared that the National Assembly shall have no power to amend or repeal paragraph 13. It follows that the purported amendments to section 1(1) of the Constitution and paragraph 13 of Schedule II were ineffective. Counsel for the plaintiff is therefore right in asking that these amendments be declared null and void.

[66.] With regard to the other amendments, the only criticism made is that they were in the same Bill. I agree that this is no reason for declaring them a nullity