Understanding the Constitutional Immunity for AFPRC Members: Lessons for TRRC

While it is indeed painful to witness a key perpetrator like Yankuba Touray easily walk out of the TRRC it is necessary to point out that indeed the Constitution, from sections 13 to 17of the Second Schedule have protected members and other persons acting in the name of the notorious AFPRC from accountability. In their criminal minds the junta seemed to have considered that a day of reckoning would one day arrive and therefore they crafted these entrenched clauses to protect themselves. However, it must be noted that these AFPRC members shall not escape justice for long hence Yankuba was ill-advised to invoke those provisions.

What did those sections say?

Section 13(1) clearly protects members of the AFPRC or their ministers or appointees from answering before any ‘court or authority or under the Constitution or any other law’ for anything they did or failed to do in the ‘performance of their official duties’ in the name of the junta. While torture and murder are indeed not an official duty, however the drafters of the Constitution smartly covered up this matter with subsection 4 which states that even if such action was taken not in ‘accordance with any procedure prescribed by law’ it cannot be questioned.

These actions have been listed in subsection 2 as actions leading to or subsequent upon the July 22 military coup which includes the overthrow of the PPP Government, suspension of the 1970 Constitution or the establishment of the AFPRC. Section 13 went further to state in paragraph 3 that no person acting on behalf of the AFPRC shall be questioned for any act in any proceedings and therefore no court or tribunal shall have the power to make any decision on account of these acts. Furthermore, under paragraph 5 it stated that no court or tribunal shall ‘entertain an action’ against any person acting on the instructions or authority of AFPRC even if such action violates any law during the tenure of the AFPRC.

To further concretise their protection from accountability the Constitution went ahead in Section 17 to state that even the National Assembly ‘shall have no power’ to amend or repeal Section 13 and other sections which seek to prevent any court to challenge the decisions of the commissions of inquiry set up by AFPRC (Section 11) or Section 12 relating to the succession of AFPRC to the properties of the former government or Section 14 which also relates to preventing anyone challenging the confiscation of properties or penalties imposed by AFPRC. Only a referendum can amend or repeal these provision!

In light of the above one can see that Yankuba has a firm ground to refuse to testify as that would mean an ‘authority’ or a ‘proceeding’ is questioning his actions and inactions as a member of the AFPRC. While the TRRC is essentially a fact-finding exercise, and not a court or tribunal, as set out in its objectives in Section 13 of its Act, it must be noted that such inquiry focuses on the actions and inactions of individuals who might be members of AFPRC or their ministers or appointed persons. The recommendations of the TRRC are indeed decisions that would may lead to other decisions being subsequently taken by any authority on the actions or persons connected with AFPRC.

Section 14 of the TRRC Act states one of its functions as investigation of human rights violations that took place between 1994 and 2017. These violations indeed would definitely be actions or inactions committed by AFPRC persons who are already protected by Section 13 of the Constitution from being questioned by anyone. The powers of the TRRC under Section 15 of its Act further emphasise the extent to which it can go to investigate including forcing a person to testify as they did with Yankuba Touray by subpoenaing him.

Section 19 of the TRRC Act gives the power to the Commission to recommend amnesty for perpetrators who apply for such. This means where the TRRC does not give amnesty to a perpetrator then such a person stands the risk of prosecution. Therefore, in view of Section 13 (2) of the Constitution this means the actions or inactions of an AFPRC member or minister are potentially subject to question or decision by some authority contrary to the Constitution.

The question now is what is to be done?

We must bear in mind that a review of Section 13 of the Constitution focuses only on acts and omissions ‘relating to, or subsequent upon’ four events. These are the overthrow of the PPP Government before the formation and after the establishment of the AFPRC and the suspension of the 1970 Constitution as well as the establishment of the 1997 Constitution. This means therefore actions beyond 1996 are not covered by the Constitution for which AFPRC members, ministers and appointed persons do not enjoy any constitutional immunity.

In my view therefore TRRC should focus on the period after 1996 for those AFPRC members who refuse to cooperate by invoking Section 13 of the Constitution. This is one option for TRRC to consider. Otherwise arresting these individuals would be unconstitutional and certainly difficult to prosecute. It will serve to derail the Commission and potentially lose its cool. We must avoid that.

The other option would be to challenge the constitutionality of the immunity clauses in Section 13. I do not think this is also a wise option as Section 13 is indeed part of the Constitution as an entrenched clause. Consequently, it would be strange to question the constitutionality of a provision of the Constitution. Constitutional experts may wish to interrogate the idea of how the Supreme Court could question a provision of the Constitution against the Constitution. What I know is that the Constitution is the basic law and therefore it is other laws and actions or omissions by natural and legal persons that are interpreted in their relation to the constitution. But to question the constitution against the constitution would be a contradiction in terms in my view.

Having said that it is important to highlight that after all AFPRC persons cannot escape justice. This is because sooner than later the 1997 Constitution will be repealed as we usher in a new constitution for the third republic. That dispensation therefore opens the floodgates to now prosecute AFPRC persons without any hurdles. This is where Yankuba would now come to realise, albeit too late though that his actions before the TRRC were ill-advised.

I wish to therefore urge the TRRC to order the release of Yankuba Touray and rather subpoena him to testify on other issues beyond 1996. Failure to testify for those issues would directly violate the TRRC Act as he would have no constitutional immunities. Therefore, the Commission would have a legitimate ground to seek his arrest and prosecution of he refuses to testify.

As citizens there is no need to despair or act unlawfully because of the unfortunate actions of Yankuba. Anywhere Yankuba goes in this world he cannot escape justice because he has indeed committed crimes that are against humanity hence international crimes. That Yankuba Touray would act in such a way must not be found surprising. Such actions by perpetrators are a normal occurrence in truth commissions around the world.

For that matter no one would have any reason to question or doubt the power, competence, integrity or relevance of the TRRC. This unfortunate action cannot in any way prevent other witnesses from testifying. I am sure many such persons would rather advise themselves properly to realise that it is in their own personal interest to come forward to testify as we saw how Sanna Sabally, Alagie Kanyi, Alagie Martin and others did.

For the Gambia Our Homeland

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Madi Jobarteh

One Comment

  1. The AFPRC was an illegal government that got into office through illegal means. So whatever mechanisms they put in place whether constitutional amendment or constitutional over haul does not matter. It is illegal and not recognizable under the eyes of international law. This illegal team of bandits later transform themselves into so-called civilians and continued ruling illegally. An illegal government cannot prosecute or give immunity to anyone. Yanks you were misled by your legal adviser who does not know more than you.