Fakebba John Darboe
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IMPUNITY SHOULD NOT BE ENTENCHED IN OUR CONSTITUTION
The substance of a matter that is sub-judice should not be a subject of comment for any legally-oriented person. I am therefore on a short leash in my attempt to bring to light the legal truth or otherwise of the purported blanket imunity enshrined in the 1997 Constitution. Bearing this in mind, the recent pleadings by Yankuba Touray's lawyer, seeking to rely on paragraph 13 of the Transitional and Consequential Clauses of the second Schedule to the 1997 Constitution has launched a conscience-attack on the fair minded people of the Gambia.
The nation being on the verge of recovering from the recent past rejection of the draft new Constitution is least expecting another legal rigmarole. For the rejection of the draft did not only show the dearth of political will amongst our parliamentarians but also showcased their tendency and stubbornness in standing still while the rest of the world moves on.
The truth without apology is that no constitution is perfect. Legal perfection is at best idealistic or utopian, and in practical terms it is a reservoir that needs to be constantly filled. Despite our mortal flaws or incapabilities in enacting and consecrating a constitution that will pass the test of time, we cannot rest in our struggle for justice and fair play.
To the point, the 1997 Constitution having been hastily passed, which is a historical fact, it had lacked the virtues of a properly scrutinized constitution and more so the informed consent of the Gambia people. The by-products of this fundamental flaw was the transportation of some 'unconstitutional' provisions through the back door and into the 1997 Constitution.
Some of the bastardized decrees of the AFPRC were made part and passel of the laws of the Gambia. And Chiefly paragraph 13 of the Transitional and Consequential Clauses which porports to give constitutional imunity to the members of the AFPRC or any of their appointees for any act or omissions done during their tenure.
Impunity should not be entrenched in any constitution. And the final analysis is that, the 1997 Constitution hinges on the principles of fairness and accountability. Paragraph 13 therefore is in totality against the spirit of accountability ensouled in the Constitution. The Supreme Court therefore, whenever the situation arises, should declare it a nullity.
Fakebba John Darboe
In a democracy, people always question the capability of the leader to lead the nation. The real question to be asked is the capability of the demos (the people) to elect a capable leader.
Like the meteorologist does the weather, a lawyer must be able to predict the outcome of litigation. Case laws are not studied for the pleasure of it. Every case embodies a principle - a rule of law - according to which a good lawyer may not only know the expected standard of behavior, but also predict judgements of the court, ergo, law is prediction per excellence!
- Fk John Darboe
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