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

It is the special beauty, sanctity and inviolability of the Muslim Holy Book that Allah, the Most Wise, has provided the means for its protection in the very verses of the Quran itself. Therefore it is most gratifying that the Mother of all books itself speaks thus about itself in verse 28, of Surah Zumar: An Arabic Quran without any crookedness, that they may guard (against evil).

In Verse 40 of Surah Fussilat is a warning most stern and scary for anyone with an inkling of consciousness about the Mighty Creator of the Universe: “Surely they who deviate from the right way concerning Our communications are not hidden from Us. What! is he then who is cast into the fire better, or he who comes safe on the day of resurrection? Do what you like, surely He sees what you do.”

How then can one who calls himself a leader of a community of Muslims in the matter of faith be so bold in the pursuit of crookedness and worldly gain that he makes an attempt to justify a most foul, deviant behaviour, strange to even the basest of animals, using the Quran? Of all evil human behaviours Allah has been most stern in His condemnation of homosexuality. Therefore, to see an Imam make any close attempt to justifying this evil act is really traumatising for any serious Muslim.

Yes, Allah (subhaanahu wa ta’aalaa) says in His glorious Quran:

“And surely We have honored the children of Adam, and We carry them in the land and the sea, and We have given them of the good things, and We have made them to excel by an appropriate excellence over most of those whom We have created.”

This Quranic proclamation is most definitely a fact. But rather than meaning to make this verse a justification of false rights, this sublime proclamation is actually one of the reasons why the children of Adam, so honoured by the Creator should not debase themselves to levels, unseemly even for animals. Homosexuality is not a right for humans, it is a deviance and a corruption of human nature most foul. It should never be encouraged.

Coming to the other fragment of a verse of the Quran the misguided pseudo-scholar tries to use to justify his defence of homosexuality; when the Quran says that every owner of a right should be accorded their right, those rights are endowed to the created beings by their Creator. Neither the Holy Bible, nor the Quran, recognises sexual deviance as a right for human beings. So where on planet earth does this man come from with his crooked interpretation of scripture?

The problem we face in our country is that anyone who speaks the Arabic language is regarded as a potential Imam and Islamic scholar, and this is so dangerous a fallacy. This has created a lot of problems in our society, emanating from either deliberate or inadvertent misinterpretation of scripture, thereby misleading the public. Yet the supposedly innocent masses do not have much of an excuse. No one would take their sick child to an engineer for treatment. Therefore, why should a community of educated people choose an electric engineer for an Imam, no matter how eloquent such a person may be in the use of the Arabic language?

Our laissez-faire attitude towards religion is but a manifestation of our materialistic ethos, whereby we prioritise matters of our physical reality far and above our faith and all things of spiritual import. This malaise must be cured in our society if we are to find peace and enduring success in both this world and the hereafter.

The Quran, and the religion it explains, are vast oceans of knowledge, some parts are quite easy to understand and then there is another portion so complex that it is only for trained scholars from recognised authorities to venture into in terms of trying to derive rulings for the public. This situation is amply alluded to in Verse 7 of the third Surah of the Quran:

“It is He who has sent down to you, [O Muhammad], the Book; in it are verses [that are] precise – they are the foundation of the Book – and others unspecific. As for those in whose hearts is deviation [from truth], they will follow that of it which is unspecific, seeking discord and seeking an interpretation [suitable to them]. And no one knows its [true] interpretation except Allah. But those firm in knowledge say, “We believe in it. All [of it] is from our Lord.” And no one will be reminded except those of understanding.”

And now let us compare the so called Islamic scholar’s selective reading of the Quran with the preaching of Sheikh Hamma Jaiteh who did a brilliant talk on the matter at hand during the most recent episode of the GRTS’s programme called Exploring Islam. With no attempt to encourage lawless persecution of homosexuals, the Imam was fearless and unequivocal in his condemnation of this horrendous attitude of homosexuality. It is unacceptable and unconscionable to make this deviant sexual practice fashionable in our society, and we should never legalise it in our judicial and social systems.

With clear reference to authentic science and both the Christian and Muslim Holy books, Sheikh Hamma makes it clear that homosexuality is out of order with human nature and that it should never be condoned in our society. In the Holy Bible he refers us to chapters 18 and 19 of Genesis; and in the Holy Quran, he reminds us about verses 80 to 84 of Surah Araaf:

“And [We had sent] Lot when he said to his people, “Do you commit such immorality as no one has preceded you with from among the worlds? Indeed, you approach men with desire, instead of women. Rather, you are a transgressing people.”But the answer of his people was only that they said, “Evict them from your city! Indeed, they are men who keep themselves pure.”So We saved him and his family, except for his wife; she was of those who remained [with the evildoers].And We rained upon them a rain [of stones]. Then see how was the end of the criminals.”

Add to the foregoing, the preachings of such a luminous authority as Shiekh Dr. Mbaye Kebba Kah who reminded us in a Khutba(sermon) yesterday that Allah condemns homosexuality and admonishes us against it on 10 separate occasions in the Holy Quran.

Therefore, in conclusion, it is beyond the power of the human being, no matter how articulate that person may be, to use the words of Allah to deceive people regarding what is right and what is wrong. Our Holy Book asserts its own inviolability and its God-ordained incorruptibility in the end part of verse 41 and the whole of verse 42 of Surah Fussilat: “and most surely it is a Mighty Book: “Falsehood shall not come to it from before it nor from behind it; a revelation from the Wise, the Praised One.”

Momodou Sabally

Former Presidential Affairs Minister, Founder-President, Sabally Leadership Academy (SLA).

Please allow us “Rising Against Racism” to respond to Mr. Nyang´s accusation. This is something that we don´t want to be dragged in to, however, we feel it necessary to correct his baseless and illogical accusation aimed to discredit our efforts and it is detrimental to any progressive society. Otherwise, we would not have given him the public relevance he is dearly looking for.

To start with, there are people in this movement who did what they could possibly do to some of the incidents you have mentioned. What have you done? What has stopped you from doing it?

For, retrogressive individuals even whereas you dance in the middle of a river, they will still accuse you of throwing dust on them. They cannot initiate any meaningful ideas. However, they are against everything. These are the pandemics of every developing and progressive society.

In his argument, he said: “ In The Gambia we have very painful stories that requires the same amount of attention as the show that is just put out today for George Floyd, but it was never done for our fellow brothers.”

He went ahead to mention some names and incidents. In fact, he should have stretched his list up to the time of the first republic or beyond. Now, going by his analogy, no one should ever protest of anything in the Gambia. Because all what we are witnessing today, a similar thing had happened. Therefore, hence no one had protest about it, we should allow the trajectory to remain. Is this the type of people a society wants? We doubt! Everything must start somewhere. There are certain incidents that triggered something to happen or come to being.

For Mr. Nyang, we are doing this for the people of America, that shows how ill inform he is. A Gambian happens to be a casualty of a similar incident. This thing is beyond George Floyd or Lamin Sisay despite we will continue to grieve with their families. Now, it is for all blacks regardless of where you live. A saying, a pregnant cat, and a pregnant rat, if the parents escaped each other their spouse would not.

If anyone think you are safe because you are not living in United States, you need to think twice. Your spouse or relatives might be there for studies, holiday or whatsoever.

Who gave you that moral authority to determine what people should demonstrate on and what they failed to demonstrate about? You need to understand that in society there are several things that people can condemn and demonstrate about. Some have passion for child right and they only protest when it comes to the issue of child. Are the children only the human beings? Likewise, women, disable, animal and environment.

But people of your kind, if you see people protesting about environment you will argue why not human rights. Such people even God cannot satisfy them, and they are enemy of every progressive society.

By Rising Against Racism

By Ebrima Nyang

What happened to George Floyd and Lamin Ceesay is a sad story that no one wishes to happen because they both deserve to live like any other American citizens. I condemn racism in the strongest term possible, because it does not promote diversity of the human kind.

In as much as I hate to see black people being subjected to racism around the world. The just ended Protest organised by few Gambians is nothing but a discriminatory one.

In The Gambia we have very painful stories that requires the same amount of attention as the show that is just put out today for George Floyd, but it was never done for our fellow brothers.

What puzzle me about the today’s protest is, what the protesters cannot do for their own citizen brothers is what they had done today for an American citizen.

Haruna Jatta was killed and no one spearheaded a protest to give him a justice

In the Faraba incident at least three youth were killed for claiming their land and nothing was done or organise for them by the George Floyd protesters.

A Garawol man was shot by the Senegalese’s force in The Gambia and he was abducted to Senegal and no one protested for him too.

Despite our political differences, Solo Sendeng puts his life for this country and no group of protesters ever organise one to demand justice for his death.

All these mentioned above are real in The Gambia and are all against human rights but were never protested upon to give them justice.

As I am speaking more than $20m is so far raise for the Floyd’s family. The million dollar question is what have we ever done in the name of the people we lost?.

If our own brothers are killed in our own country and there is nothing we can do for them, but prefer to request for a permit for an American to demand justice for his death. The question is where does our nationalism lies?

The death of Lamin Ceesay is a very unfortunate one just like the death of our other Gambian brothers.

All Gambians deserve equal call for justice as all lives matter to our nation.