Judges Do What Is Necessary

By

Issa Achigbue - 01/10/19

Last year I composed a poem titled “Existence” for my contribution in the UTG Law
Journal, this year I decided to try another but on somewhat different lines, a more
interesting legal topic. I thought of composing another poem but couldn’t think of a plot,
or writing a short story but felt it would look awkward in a law journal for I’ve always
preferred fact over fiction. So after a long pensive mood I turned to law, the noble
profession though many might disagree based on multiple reasons. The most common
being that lawyers are liars! Or that lawyers are talkative and any talkative would make a
good lawyer… Nay! This I dispute. Ever since lawyers have been going to court the
layman’s perception has always been exactly one of the above, but if you could
remember some centuries ago it was Plato who said that “empty barrels make the most
noise.” Though many credit Plato for bringing “empty barrel” into the vernacular: “An
empty vessel or barrel makes the loudest sound,” by which he means that those who have
the “least wit are the greatest babblers.” Some however believe that the proverb is
of Jamaican origin, while others credit it as Spanish. Even Shakespeare in Henry V
borrowed from Plato where he writes “I did never know so full a voice issue from so
empty a heart. But the saying is true: ‘The empty vessel makes the greatest sound’…” So
if you’re a talkative, then you’re an empty vessel and in light of the above, being
loquacious or renowned for loquacity has little to do with being a good lawyer but rather
I would assume, perspicacity!

Indeed, perspicacity is what makes a good lawyer; the quality of having a shrewd or
ready insight into things and if I may borrow from Emmanuel Akomaye Agim, the ability
to “isolate an abstract principle of law in the vehemently pragmatic application of that
abstraction to the facts of a case is one of the most highly prized legal skills in the
Common Law System.” My point being that not every loquacious person has a vocation to
be a lawyer. In my choice of a legal topic I have chosen a topic very much concerned
with the practical working of the law, that is, an illustration on “the right to fair trial
being central to the rule of law: as it upholds the due process of the law” with the help of
the recent contempt of court case of Yankuba Touray initiated by the Chairman of the
Truth Reconciliation and Reparation Commission (TRRC) under Section 15 (2) of the
TRRC Act and Section106 ( C ) of the Criminal Code via a referral letter dated 1 st July,
2019, and attached was an affidavit in support of the referral and a pen drive as an
exhibit. One of my protégés at the law faculty in her freshman year first brought this
topic to my attention, it had been given to them by their constitutional law lecturer miss
Marie Saine as continuous assessment. I venture to call this discourse “Judges Do What
Is Necessary,” and by this title I mean to debunk the generally held notion that it is the
Executive branch of government or any other bureaucrat, or that National Assembly
(Parliament) making laws or engaged in a piece of law reform, etc. are the ones that can
see all round whereas judges see only one side. This I strongly dispute because S. 120 of
the 1997 Constitution vesting interpretative jurisdiction on them to interpret laws as
applicable into society is no coincidence, they have better sight and longer sight than
those other bodies, most especially in the practical working of the law and safe-guarding
of individual freedom and liberty. The climax with respect to the above notion came in
the recent TRRC suit against one of the members of the Armed Forces Provisional Ruling
Council (AFPRC) and junta member of the July 1994 coup Yankuba Touray, facts to
which I now turn.

One must travel back in time to the inception of the Armed Forces Provisional Ruling
Council’s (AFPRC) rise to power after a successful coup hitherto in order to have a better
understanding of how it all started. If I may borrow from Robert Graves, an incident that
has been the subject of every variety of misrepresentation, not just then but likewise in
succeeding times, so much so that all transactions of preeminent importance are now
wrapped in doubt and obscurity. While some hold for certain facts the most precarious
hearsays, others turn facts into falsehood, and both are exaggerated by posterity. I
solemnly confess for I too did it, being a product of that posterity envisaged years ago
when the incident transpired, I’ve always told friends and protégés about this incident
with the apocryphal that ‘One of five of the insurgent group member Sanna Sabally
pointed his pistol at his colleague Yahya Jammeh saying: Alas! You are the chairman
now (AFPRC)’ to which Yahya Jammeh shortly answered in the affirmative ‘You are the
vice-chairman now…’. After the promulgation of the TRRC Act, Sanna Sabally was
summoned and in his proceeding shed light on all matters concerning the 1994 July
incident or rather coup as I would call it. Turns out I have been disseminating a lie
hitherto! Without further dwelling on that particular incident I shall now turn to the focal
point of this write-up which was during Yankuba Touray’s TRRC proceeding, or as I
would like to call it, the point of “golden predicament” for multiple reasons. One being
because almost every witness testimony portrayed him to be “the plug” or rather main
perpetrator, and also his refusal to testify to me was one of the first real formidable
challenge for the Commission. The second challenge was the proceeding before Justice
Sainabou Wadda-Cisse to which I now turn.

It was a very busy day for the Commission, one of the main perpetrators Yankuba
Touray had been summoned and he showed up. The venue was filled up with spectators
and to their disappointment and surprise, Mr Touray had other interesting plans different
from what many anticipated, I know this. Counsel upon asking Mr Touray a question
concerning incidents in relation to the coup was flabbergasted after he reluctantly refused
to answer, invoking immunity accorded to members of the AFPRC by virtue of the 1997
Constitution, in which he was one. From the looks of it he was a very obstinate man and
if engaged with in a heated exchange he could be very rude to counsel at the bar. He was
later then to be committed for contempt as condign punishment for his refusal to answer
questions asked by counsel. Counsel Essa M. Faal without hesitation later ordered for his
remand pending contempt proceeding at the High Court. His evacuation from the venue
by the police was a dramatic one. I describe the crowd that threatened Mr Yankuba
Touray: people from all over livid with anger impatiently waited outside the venue to
pounce on him. A more ferocious sect of the angry public could be visibly seen on one
corner trying to burn an effigy of him. They were imbued with Gambian fervor. And his
response to them: ‘Justice shall prevail’. To which I nostalgically reminisced of Lord
Mansfield’s response to the angry crowd that threatened him after affirming for the black
slave James Somerset ‘We must not regard political consequences; how formidable
soever they might be: if rebellion was the certain consequence, we are bound to say “fiat
Justitia, ruat caelum” (i.e. let justice be done though the heavens fall) … the air of
England is too pure for any slave to breathe. Let the black go free’. The implication of
the above judgement was to abolish and put an end to slavery in England in the
superseding years. After a few days later without delay, the contemnor Mr Yankuba
Touray was brought before High Court judge, Justice Sainabou Wadda-Cisse for his
arraignment and according to her when the matter first came up before the court on 2
July, 2019, the court ordered counsels to file written addresses on the propriety of the
referral instrument, having regard to the fact that there was no originating process before
the court on which the referral was premised.  She added that the referral was rather an
off-shoot of a case that originated from the proceedings of 26 June, 2019, of the TRRC.
She further added that the process of referral borne out of the facts before the court was
novel in the jurisdiction, noting that in that regard it was imperative that the court gives
dispassionate consideration to the issues raised. “Such dispassionate consideration
remains the same and does not change according to the status or disposition of either the
contemnor or the complainant involved, neither does it change according to the public
perception in respect of the offence or the contemnor,” she told the court. At this point,
the dominant issue up for consideration before the female judge was whether the suit
filed vide a letter dated 1th day of July, 2019 by the TRRC was commenced under due
process of law. To that effect, she elucidated on what constituted the phrase ‘contempt of
court’ and cited the authority of Oswald on Contempt of Court (3rd edition) to support
her ruling. For the benefit of the layman, by due process I do not mean just the rules and
procedures of court or initiating a civil or criminal suit which were the basis of the
arguments of Counsels before Justice Wadda-Cisse. By due process I mean all the
measures authorized by law so as to keep the streams of justice clear and pure, that trials
are fairly conducted, unnecessary delays are eliminated, injunctions are made readily
available, etc.

Appearing for the state when the case was first called was state Counsel M. Koita, a
very effective advocate who represented the Attorney General Abubacar Baa Tambadou.
The Attorney General later stepped in. A very resourceful man, seemed well versed in the
intricacies of rules and procedures of court. Representing the contemnor was Counsel
Sissoho, very persuasive and seemed very well equipped with the necessary legal savvy.
He assumes a disarming air of diffidence like Hallifa Sallah as if to say ‘Please help me’,
and of course, he was indeed helped. Justice Wadda-Cisse quoted his argument that “All
originating processes filed at the High Court must comply with the Second Schedule,
Rules of the High Court, particularly, ORDER II, ORDER XXVII and ORDER L, and
the letter dated 1st day of July, 2019, did not conform with any of the requirements as
provided by the Rules governing practice as provided by law in The Gambia or in the
commonwealth.” She further added that “Section 15 (2) of the said Act is a criminal
offence and therefore any step to make a referral to the High Court, there must be full
compliance with the Criminal Procedure Code, particularly Sections 175A, 175B and
175C.” In a counter argument, the Attorney General submitted that the referral by the
TRRC chairman to the High Court is not a proceeding commenced by the Attorney
General. He argued that section 15(2) makes no reference for the Attorney General to
initiate criminal proceedings which clearly would have required an originating process
pursuant to the Criminal Procedure Code. He put forward that it was the intention of the
legislator to dispense with this requirement under section 15(2). The Attorney-General
told the Court that the referral mechanism is intended to be an exception to the general
rule of initiating criminal proceedings through an originating process and is not
inconsistent with the Criminal Procedure Code. According to him, it is an “additional
avenue of instituting criminal proceedings before the High Court and its application is
clearly limited to the category of contempt offences at the TRRC,” and also that section
15(2) was intended to allow the TRRC to relieve itself off the additional burden of
contempt proceedings for the courts to handle so it can focus on its primary fact-finding
inquiry rather than deal with the legal technicalities of contempt. The facts were clearly
not his friend and with regards to this referral letter I exploded with laughter. To
understand the magnitude of this procedural blunder, one must understand that at any
rate, the various methods of initiating civil proceedings before the High Court are by writ
of summons, by petition, by originating summons and by originating motion. Also
relevant to the procedure for the commencement of criminal proceedings before the High
Court, is the filing of information in the form of an indictment by virtue of Section 175C
of the Criminal Procedure Code. So the possibility of a referral process successfully
invoking the jurisdiction of the High Court is laughably remote. However, the clear and
incontrovertible fact here is that the jurisdiction of the court was being invoked by a
referral process and this is what Justice Wadda-Cisse had to say about it. Her judgement
is so full of sense that I will take exactly from one of her eloquent pages without much
embellishment to it where she stipulates that ‘it is trite that a court of law cannot
entertain an inference which runs contrary to the express provision of an Act of
parliament’ and that ‘it is apparent that the procedure by which the referral to the High
Court could be made for ‘trial and punishment’ is not specified in the TRRC Act’… ‘I am
of the considered view that the referral process is founded on whether or not some
provisions of the TRRC Act have been violated by the contemnor (Mr. Touray). With
respect to the Learned Attorney General, I cannot accept an interpretation of section
15(2) of the TRRC Act that substantially limits the scope of the constitution and the
powers of the court, and contravenes the constitutional and statutory provision of audi
alteram partem (i.e. the right to fair hearing),’ Let me distill the implication of what was
said in the above ruling. From her judgement, she ruled that the referral proceedings did
not fall under any one of the forms of initiating civil and criminal proceedings. According
to the Learned judge, there was no doubt that contempt proceeding falls within the
competent jurisdiction of the court. However, it is the duty of the court to ensure that
actions before it is commenced appropriately in accordance with due process to clothe the
court with jurisdiction. She said that the failure to follow due process ‘divests the court of
jurisdiction and renders the suit incompetent’ because improper commencement of an
action is not just a mere irregularity but also destructive to the rule of law and
fundamental to the core. For indeed, the right to fair trial is central to the rule of law as it
upholds the due process of law and such being the order of the day she upholds the
contemnor’s sacrosanct right to a fair hearing adding… ‘the principles of natural justice
are enshrined in our Constitution. Permit me to say emphatically that when the citizens
are vested with rights, a court of law must resist any attempt to deprive a citizen the
enjoyment of that right conferred by law.’

There is a lesson to be learnt from this recent case, a lesson very appropriate at this
present time considering the nation-wide cognitive dissonance prevalent in contemporary
Gambian society with regards to democracy and other intrinsic democratic values which
embodies legal matters that needs to be addressed. One of which is specifically, the legal
precept of being innocent until proven guilty. A precept enshrined in our so cherished
Constitution and also channeled by some of the Acts of the National Assembly which sets
out our municipal laws such as the Evidence Act, etc. a wonderful symbiosis between our
laws. Not to mention how the Constitution prescribes itself as the supreme law of the land
in our corpus juris. Therefore, I apologize not, if in my next few words I am venturesome
enough to recount the above precept with go towards guaranteeing due process and safe-
guarding of individual liberty our authorities are constantly in flagrant violation of. It is
still an enigma to me and one might find it thought provoking too that the TRRC can
order the remand of any subject in the country depriving him or her off their liberty upon
the belief that they’ve committed a crime without proper due process just as Mr. Touray
was arrested pending his arraignment, and is still incarcerated as at this moment even
when he has not yet been declared guilty by any competent court of the land. Yet it is our
cardinal belief that ‘One is innocent until proven guilty’… lo! What cognitive
dissonance! And the mere excuse that a subject would abscond for fear of prosecution
should the above precept be given stringent adherence cannot counterbalance what our
Constitution has declared i.e. ‘that you’re innocent until proven guilty’ under section
24(3)(a). Yes, it was about contempt of court but even contempt charges require due
process before a judge or jury before incarceration. Speaking of the law of contempt the
question inevitably comes into play in one’s mind that what type of contempt was it, was
it contempt in the face of court to have warranted summary punishment of the TRRC
panel’s own motion? The phrase ‘contempt in the face of the court’ has a quaint-old
fashioned ring to it i.e. of all the places where justice is to be upheld and maintained, it is
here in the courts of law. Nay! But the TRRC proceedings are not court proceedings. Yes,
there is a legal professional who serves as Deputy Executive Secretary, yes there is a
legal professional who serves as Director of Research and Investigations, yes there is a
legal professional who serves as Deputy Director of Research and Investigation, and yes,
there are legal professionals and lawyers who serve as Lead Counsels to the Truth
Commission, able to take on the unenviable and daunting task of cross-examination, able
to ascertain their truthfulness and veracity despite the concomitant ordeals of having to
give evidence, able to stick to the relevant and avoid the irrelevant or superfluous
information. But lo! It is not a court but rather a body corporate, and Parliament has
declared it so irrespective of its quasi-judicial setting pursuant to section 3(3) of the
TRRC Act. At any rate, the flagrant violation of due process was unwarranted and I know
for a fact that once upon a time due process under the Constitution with regards to the
former regime was nothing more than an ink on paper. Those proscribed and
unconstitutional ways of former president Yahya Jammeh is dead and gone and must
never be revived, its remains can now be interred with its bones.
 One of the tenets I live by is to conceptualize something and then make the case for
how I want that thing to be, therefore, I shall, and let me be venturesome once more. I
shall recommend that a judge be added to the TRRC panel and proceedings be given the
jurisdictional status of Sui generis. I shall recommend that such a judge or judges
depending on their number be given the power of summary punishment with respect to
the law of contempt like any other courts of first instance in our wealth of a legal system.
Lord Russell of Killowen CJ in R v. Gray [1900] has regarded it a necessary power given
to maintain the dignity and authority of a court in ensuring a fair trial and is to be
exercised with scrupulous care only when the case is clear and beyond reasonable doubt.
My learned colleagues would understand but for the benefit of the layman, I pause to say
that by “inferior” I do not mean inferiority in the doing of justice nor with respect to the
male and female Justices who man these courts, nor in the advocates who plead in them.
By inferior I mean they try cases of a lesser order of importance though these cases are
often of equal concern to the public and parties involved. In line with Lord Russell’s
proposal however, a necessary power given to maintain the dignity and authority of the
Truth Commission’s proceedings as a way of ensuring due process afield beyond the
confinements of the orthodox courts of the land.

With all these safeguards implemented and put in place, at this juncture I shall venture
to call it the sobriquet an ‘exclusive brethren’ i.e. of the traditional old-fashion orthodox
courts. I mean if these principles worked and were good for the old they should be good
for the new. If I might add, there is just as much need, to my mind at least, for the TRRC
to maintain authority and its dignity like other orthodox courts in The Gambia. The
judges to be incorporated into the TRRC proceedings recommended above would not
then hesitate to exercise such great powers of summary punishment and to channel the
erudite Lord Denning, insults are best treated with disdain, save when they are gross and
scandalous. Refusal to answer with admonishment, save where it is vital to know the
answer. On that note such an instance requires and must be visited with immediate arrest
and remand in custody, then arraignment before a judge. If it can be arranged, surely it
must be arranged for section 24 of 1997 Constitution demands it, representation by
Counsel in accordance with due process. If it comes to a sentence, let it be such as the
offence deserves with the comforting reflection that, if it is in error, there can then be an
appeal to a Higher Court as an originating process or by way of trial de novo if warranted
rather than by way of a referral letter in flagrant violation of rules and procedures of
court, which is the current tendency. In so doing, I’m certain Justice Sainabou Wadda-
Cisse will not think ill of the Attorney General’s method of trying to initiate a criminal
suit at the High Court again.

The Author

ISSA ACHIGBUE is a final year law student at the

Faculty of Law, University of The Gambia (UTG).
It is my humble view and think it highly necessary, that one must have a teachable spirit for we
do not always know it all. So to my reader, tell me what you think on: issa_10@icloud.com.