Shepherds Broadcasting Network

25/01/2022

The High Court Dismissed KMC's Application to Stay (suspend) the Commission of Inquiry.

Justice Basiru V.P. Mahoney today dismissed the Kanifing Municipal Council’s (KMC) application seeking to stay (stop) the proposed Commission of Inquiry.

The Minister of Local Government established a Commission of Inquiry to investigate allegations of corruption and malpractice at the Kanifing Municipal Council (KMC) and for connected matters.

KMC wanted the Court to stay the proceedings of the Commission pending the hearing and determination of the their case against the Minister challenging the legality of the Commission.

KMC filed their main application for certiorari and a motion on notice for stay of proceedings of the Commission. The Respondents filed an affidavit in-opposition.

KMC, in its application for stay of proceedings of the Commission stated that it received a letter from the Minister of Lands in January 2022 informing it that the Ministry had established the Commission acting pursuant to the power under saction 151 (1) (a) of the Local Government Act and that the Council believes that the setting up of the Commission is in excess of the powers contained in the said section hence the application for Certiorari to quash the establishment of the Commission.

KMC alleged that the Commission has not been established under due process of law. The lawyer for the Council submitted that the Council will be prejudiced if it will have to participate in proceedings that it is challenging the legitimacy of the Commission.

It is the position of the Council that there is no urgency in the Commission commencing its proceedings because the inspector whose investigation allegedly led to the establishment of the Commission finished their inspection sometime in August 2021 while the Commission was established in January 2022.

The Respondents, on the other hand, in their affidavit in-opposition presented that the Minister acted within the powers conferred on him by section 151 subsection 2 paragraph (a) of the Local Government Act. They submitted that the application for a stay of proceedings of the Commission is a mere attempt to delay the proceedings of the Commission.

Lawyer Binga D. for the Respondent’s submitted that an application for certi is to quash a decision of a judicial body. He said application for stay does not apply in certiorari cases.

Binga furthered submitted that there is a presumption that the establishment of the Commission was done in line with the law unless proved otherwise as held in the case of Ya Kumba Jaiteh versus the Clerk of the National Assembly on the subject of presumption of regularity of official acts.

In his ruling, Justice Mahoney held that stay of proceedings is a valid application in a Certiorari matter where the circumstances demand.

Justice Mahoney said there is one issue brought out by Counsel Binga which affects the court's discretion. That is the submission on presumption of regularity of official acts and the Supreme Court decision on the issue.

Justice Mahoney cited the Supreme Court decisions in Ya Kumba Jaiteh versus the Clerk of the National Assembly delivered on the 28 January 2020 and Gambia Participates versus the Clerk of the National Assembly as well as Section 17 subsection 2 of the State Proceedings Act that an interim injunction cannot be granted against the State.

The court held that the Minister exercised his powers under the Local Government Act, rightly or wrongly, and is presumed to be regular until determined otherwise in the main suit.

“Going by the Supreme Court decisions in Ya Kumba Jaiteh versus The Clerk of the National Assembly and Gambia Participates versus the Clerk of the National Assembly, no court can restrain the performance of the power exercised by the State,” Justice Mahoney said.

He said in this case KMC wants to restrain the performance of the official act of the Minister, which cannot be granted. He added that the court is bound by the Supreme Court decisions mentioned above.

“This court is bound by the decision of the Supreme Court and as the facts in the instant matter fall within the presumption of regularity of official acts for which the law prohibits the granting of an injunction to prevent the act being performed, the application for a stay of proceedings of the Commission of Inquiry pending the determination of the main suit cannot be granted and is dismissed,” the Judge ruled.

The court urged both parties to file their arguments in the main suit latest Friday and the court will preside over it on Monday, 31st January.

25/01/2022

Saul Badjie’s Lawyer Preliminary Objection on the Detention without charge dismissed by the court.

High court judge, Justice Zainab Jawara – Alami has dismissed the preliminary objection raised by General Saul Badjie’s lawyer, who argued that Badjie and others detention without charging them has no base in law.

Saul Badjie together with Major Landing Tamba and Warrant Officer Class 1 Musa Badjie are being held at Mile 2, with no criminal charges have been pressed on them.

However, the State obtained a court order to detain them at Mile 2 pending the hearing and determination of the application seeking to keep them in detention for 90 days.

The case came yesterday Monday 24th January for the second time before Justice Zainab Jawara-Alami of the High Court. General Saul Badjie, returned to the Gambia on the 24th or 25th December 2021 from Equatorial Guinea where they were with the former head of state, Yahya Jammeh.

It is the position of the State that these three should be kept in custody pending further investigation into their matter. The reason provided was that releasing the three would potentially threaten State security.

The State filed an application seeking a court order to keep Saul Badjie and the two others in detention for 90 days to permit and facilitate further investigation pending preferring formal charges.

The application is supported by an affidavit sworn to by Inspector Jally M.I. Senghore of The Gambia Police Force.

Senghore said these soldiers did not have the permission of the command of the Gambia Armed Forces to go on this journey and to remain for the duration of time they spent in Equatorial Guinea. He said the army at some time declared them as deserters.

Senghore said during the period of stay of these soldiers and others who were part of the es**rt team of ex-President Yahya Jammeh to Equatorial Guinea intermittently interfere with the internal politics of the country. He added that based on a number of security assessments posed and continues to pose threat to the country as a results of their past antecedents.

In 2018, the Gambia Government established a Truth Reconciliation and Reparations Commission (TRRC) and on the 25th November 2021 submitted their findings and recommendations to the Gambia Government.

On the 24th December 2021 the Government made public the findings and recommendations of the truth commission.
The TRRC report identified Saul Badjie and the two others as alleged perpetrators.

Senghore said the TRRC report recommended for further investigation to be carried out on the three detainees for alleged human rights violations that the Commission might not have been able to investigate.

Senghore said on the 24 and 25 December 2021 two groups of the es**rts of former President Jammeh came back to the Gambia and surrendered themselves to the security for screening. He mentioned that the three were part of the team.

Senghore said Saul Badjie during the screening exercised acknowledged that he was a member of the notorious Junglers group of the former head of state. He averred that General Badjie also disclosed knowledge of commission of some grave offences such as the burning of the Independent Newspaper and the murder of two Gambian-Americans, the killing of Chief of Defense Staff Colonek Ndure Cham.

Senghore said during the screening General Badjje informed them that he was in touch with two people in a plot to carry out attacks to disrupt the elections.

In the course of preparing the affidavit, Senghore said he was advised by State Counsel Kimbeng Tah that there is a need to launch an urgent wide investigation into the alleged crimes which do not form part of the TRRC's findings.

Senghore said he is also aware that there is a need to investigate the sojourn of Saul Badjie and the other two in Equatorial Guinea and as this may have potential of posing severe national security risks. He added that based on his experience, such investigation has to be in-depth and cross-border.

Senghore said Saul Badjie was the commander of the State Guard and de facto commanding officer of the Junglers hitsquad while the other two were members of the Junglers squad.

“Releasing them into the public while investigations are ongoing is counterproductive to the investigation and could pose a serious national security threat,” Senghore stated in the affidavit in-support.

He said the three suspects never appear before the TRRC to give evidence whereas there were some members of the Junglera who testified before the truth commission and they were subsequently released.

Senghore said it is in the interest of the investigation that the three suspects to be kept in custody pending the investigation which will take a minimum of 90 days.

“It is my assessment that releasing them into the public giving the past antecedents could pose threat to the security and it is not in the public interest,” Senghore concluded.

Lawyer Sheriff Kumba Jobe in his preliminary objection said the aapplication lacks a base in law.

“There is no legal basis for the application. There is no law to support the application,” Lawyer Jobe said.

Justice Jawara-Alami in her ruling on the preliminary objection dismissed the preliminary objection by Lawyer SK Jobe, but did not provide any reasons as to why she dismissed it. She promised to incorporate it in the ruling.

The ruling on the application will be delivered on the 4th February 2022.

25/01/2022

State Lawyer Binga, KMC Lawyer Senghore Argue Over KMC Motion Seeking to Quash Commission of Inquiry

Lawyer Binga D for the State and Lawyer Yassin Senghore for KMC today, 24 January argued over the Kanifing Municipal Council's motion challenging the legality of the proposed commission of inquiry.

The Council, KMC filed an ex-parte motion on the 15th January 2022 for the suspension of the establishment of the commission of inquiry into the council's activities because was not in accordance with the law, among other things.

After hearing the motion, Justice B.V.P Mahoney granted the ex-parte application and suspended the commission of inquiry until the court hears from the Attorney General and local government minister in respect of the order to stay proceedings.

Today, State Counsel Binga D. represented the Attorney General and made the argument on the motion.

Below are the arguments by both Counsels:

Lawyer Yassin Senghore:

In her submission, Lawyer Yassin Sanghore for KMC said the motion before the court is seeking the suspension of all investigation into the council pending the court decision.

Lawyer Sanghore said they are challenging the legality of the establishment of the commission of inquiry as the establishment of the commission of inquiry isn't in line with section 151 (1) of the local government Act.

"Before the establishment of a commission of inquiry, there are steps to be taken which the respondents (Minister) failed to do so". Senghor said.

"Section 151(2)(a) that provides for the creation of a commission of inquiry by the Minister. But before establishing the commission, Section 151(1) provides that the Minister has to first receive a report highlighting improper conduct in the Council.

Following this, the Minister may cause the Council to convene a meeting where he will point out the ‘irregularities found and give the Council any guidance necessary’.

Where the Council failed to address the irregularities or failed to follow the guidance of the Minister or if the Minister considers the matter to be grave, then that is the time the Minster can institute a commission of inquiry as per Section 151(2)(a).

The question therefore is, has the Minister received any such report first of all. Next, has the Minister caused a meeting of the Council to take place? Finally, has the Minister pointed out to the Council the irregularities or has he provided any guidance? These issues did not reflect in the letter of the Minister to KMC about setting up a commission," she argues.

She said there should have been an inspection done, then the Minister should have given guidance to the Council and if the council fails to take the guidance and recommendations of the Ministry then he can institute a commission of inquiry.

"In this case, the state didn't follow all the steps. No inspection, no visit, no guidance and no meeting," she said.

She said section 151 of the Local Government Act envisages a quasi commission.

"I submit that with the above issue the court has to make an order for the suspension of the commission pending the decision of the honourable court," she said.

She added: "Because in this case isn't only about commission but the Jurisdiction of the commission, procedure and rules."

"It will be ridiculous to allow the commission to proceed when there is an application challenging the legality and variety of the commission," she stressed.

She said the application before the court is competent.

She said the Minister should have waited to see the report of the inspection rather than establish a commission of inquiry.

Counsel Binga D for the Minister and Attorney General:

On the side of the state Lawyer, counsel Binga D. said the business of the day was the application before the court is dated 18th day of January 2022.

Lawyer Bingo D said they filed a 17- Paragraph affidavit in-opposition dated 20th January 2022. He submitted that they intend to rely on all the paragraphs in the affidavit.

On whether the commission was properly constituted, Counsel Binga D argued that the Minister properly constituted the commission in line with section 151 subsection 2 paragraph (a).
"
So, I will say the argument that the commission wasn't properly constituted is false," said Binga D.

Binga maintained that the Minister acted within his powers under section 151 of the Local Government Act.

The state counsel further argued that the person appointed as the chairman of the commission was properly done because he met all the qualification requirements under sections 201 and 139 of the Constitution.

"The applicant is just playing a tactic to delay the activities of the commission," he said.
Binga D pleaded with the court to throw out the case because it shouldn't have been brought by way of a motion instead it should have been through as a case of its own.

"This process is not known to the court and this practise shouldn't be entertained," He said.

Binga stressed that a mere motion cannot stale a commission, adding that there are other procedures that KMC could have utilised.

"The applicant has many ways to rely on but not through this motion", Binga said.
Binga emphasized that the court look should look into the reasons for the establishment of the commission of inquiry because it was set up to investigate the council's activities.

He contended that the commission was well established and that the court cannot stay the commission based on the reasons put forward by KMC. He added there was a gazette published for the establishment of the commission.

In conclusion, Binga said KMC is seeking to quash the commission of inquiry but has failed to provide the court with tangible reasons to warrant the court their prayers (request).

Judge Mahoney sitting as a high court judge after hearing from both parties adjourned the case for ruling tomorrow @ 14:00.

12/02/2019

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