By Ousman Saidykhan and Yusef Taylor
The Interim party leader of the Alliance for Patriotic Reorientation and Construction (APRC) has alleged that the appointment of the Gambia’s Truth, Reconciliation and Reparations Committee (TRRC) Chairperson is illegal according to provision 200 and 201 which focuses on the formation of a Commission of Enquiry. However, Civil Society Advocate Madi Jobarteh has argued that provision 200 and 201 does not apply as the TRRC was enacted through provision 100 which focuses on the Legislative Powers of the National Assembly.
TRRC Chairperson Dr Lamin J. Sise was sworn into office by President Adama Barrow in October 2018 after the TRRC Act was passed by Gambian Parliamentarians in 2017.
APRC’s Fabakary Tombong Jatta made these allegations during an APRC protest held on Monday 26th July 2021 against the TRRC’s imminent report. The Gambia’s TRRC was enacted to investigate the human rights violations of former President Yahya Jammeh and his regime from 1994 to 2016. Former President Jammeh who is still considered the supreme leader of the APRC fled to Equatorial Guinea after he lost the December 2016 Presidential elections.
Protestors held banners reading “TRRC A PLATFORM FOR POLITICAL AND JUDICIAL PROSECUTION OF APRC” and “TRRC AND NOT POPULARITY CONTEST FOR PRESIDENT”. The demonstration started at the iconic Arch 22 and ended at the Ministry of Justice where their petition was handed over. Speaking at the end of the protest the former Majority Leader stressed that “the appointment of Dr Lamin Sise is illegal”.
Mr Jatta highlighted that “the 1997 Constitution guides any operations of Government; it is the Supreme Law of the land”. Citing Constitutional Provisions 201 Mr Jatta says “a person shall not be appointed a sole Commissioner or the Chairmen of a Commission of Inquiry unless; (a) he or she is, or has been, a judge of a superior court, whether in The Gambia or outside it; (b) or he or she is qualified to be appointed a judge of a superior court”.
However, well-known Advocate Madi Jobarteh opines that “the comment by Fabakary Tombong Jatta that the appointment of the TRRC Chairperson is unconstitutional is false.”
According to the outspoken advocate Mr Jobateh, “the TRRC was not set up under Section 200 of the 1997 Constitution which has spelt out the criteria for the appointment of a Chairperson of a Commission of Inquiry”. Instead, he argues that “the TRRC was set up by an act of the National Assembly under section 101”. “The TRRC Act has set out its functions, powers, structures and processes. Furthermore, the act spelt out the mode of appointment and qualifications of its Commissioners. Hence the appointment of the Chair and all other Commissioners are in line with the Constitution and the TRRC Act 2017” said Mr Jobarteh.
Making reference to another Commission Mr Jobarteh says Fabakary Tombong Jatta should “realise that it was the Janneh Commission that was created by section 200 of the Constitution. Therefore let Fabakary stop misleading the public and misinterpreting the [1997] Constitution”.
Still on his point that the TRRC Chairperson was “illegally” appointed Mr Jatta quoted provision 139 of the 1997 Constitution which stipulates the qualifications for the appointments of Judges.
According to Mr Jatta, his party conducted investigations which revealed that “Dr Lamin Sise, with all his expertise and experience, is not qualified, among many qualified people to take up that responsibility”. However, Mr Jatta failed to substantiate his allegations that Dr Sise was not qualified to be a judge.
Gainako made some inquiries into Dr Sise resume and was informed that he is a seasoned lawyer, however, at the time of publishing Gainako couldn’t confirm if Dr Sise was called to the Gambian Bar or qualifies to be appointed as a judge of superior court.
Seeking advice from a seasoned legal practitioner Gainako was informed that “the only eligibility or qualification criteria under the TRRC Act 2017 for the position of Chairperson is under section 5 (3) (a)” which disqualifies persons “known to be actively involved in a political party (b) bankruptcy (c) conviction of a felony”.
According to the legal advice received “the TRRC is a creature of a statute and not a Presidential Commission set up under section 200 of the constitution”. However, according to provision 4 of the 1997 Constitution which focuses on the Supremacy of the Constitution, the 1997 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”.
This raises the question of the consistency of provision 200 of the 1997 Constitution and the TRRC Act 2017. One would have expected the Ministry of Justice which tabled the TRRC Bill and the National Assembly that approved the TRRC Act would have made sure that the TRRC Act 2017 is consistent with the 1997 Constitution.
