Gambia High Court refers murder case of ex-junta member to Supreme Court
Banjul, Gambia (PANA) - A High Court in Banjul on Monday referred the protracted murder trial involving Retired Capt. Yankuba Touray, a member of the defunct Armed Forces Provisional Ruling Council (AFPRC) that brought Yahya Jammeh to power in The Gambia in July 1994, to the Supreme Court for interpretation on the constitutional immunity earlier raised by the defence lawyer.
He is being tried on a single charge in connection with the death of Ousman Koro Ceesay, a former minister of finance, during the reign of the junta in 1995.
Touray denied any wrongdoing and since then has been detained at the state central prison at mile two.
Touray had refused to recognize the country's first truth commission, a problem that earned him an arrest, a detention and murder charge in July 2019.
He refused to testify before Gambia’s Truth, Reconciliation and Reparation Commission (TRRC) last year.
However, the TRRC ordered the arrest and detention of Touray for refusing to testify and questioning the legitimacy of the commission.
Monday's ruling came after two weeks of heated debate between the defence lawyer and the principal state counsel as to whether Touray should is immuned to prosecution based on the West Africa nation 1997 constitution and his status as a former member of the defunct Armed Forces Provisional Ruling Council (AFPRC).
However, Justice Ebrima Jaiteh, who has been presiding over the case since its inception in June 2019, went through the arguments and submissions of both parties who both contended that the matter is not for referral or interpretation of the law by the Supreme Court.
Justice Jaiteh observed that he has listened keenly to the arguments and submissions of both parties with great interest for proper determination of the defence application for constitutional immunity.
According to the trial judge, there is only one issue to be determined and that is, whether the High Court has jurisdiction to invoke paragraph 13 of the second schedule of the 1997 Constitution of The Gambia.
The presiding judge noted that the 1997 Constitution confers on the Supreme Court the exclusive original jurisdiction to interpret or enforce any provision of the constitution except the provisions provided under Sections 18 to 33 and Section 36(5) which are reserved for the High Court and deals with the fundamental rights and freedom.
“I strongly disagree with the submissions of both counsel for defence and the state that paragraph 13 of the Constitution is not about interpretation or enforcement, rather it is about invocation. It is my strong view that a court of law cannot invoke or enforce a provision of the constitution without interpretation. I hold the strong view that any attempt by this honourable court to invoke, interpret or enforce any provision under paragraph 13 thereof will tantamount to an academic exercise in futility hence this court has no jurisdiction to entertain the issue of Constitutional immunity under paragraph 13 of the Constitution,” Justice Jaiteh observed.
Justice Jaiteh further went on to rule that the issue of Constitutional immunity brought pursuant to paragraph 13(1), (3) and (5) of the second schedule of the 1997 Constitution is hereby referred to the Supreme Court for determination, the proceedings in the trial are hereby stayed pending further orders and/or directives of the Supreme Court in the matter and that the principal registrar of the High Court is also directed to forward a copy of the ruling and arguments of counsel in respect of the Constitutional matter from the record of proceedings to the Supreme Court of The Gambia.
In trying to establish a prima facie case, the state prosecutors presented nine witnesses before the closure for their case while the defence called three witnesses, including the accused himself.
-0- PANA MSS/VAO 2Nov2020
