QUESTION OF THE DAY
A Commission of enquiry speaks for itself and does not need any amplification from the executive. The TRRC should be totally independent of the Executive to which it should ultimately submit its preliminary and final reports. No member of the executive should issue press releases or statements on matters within the jurisdiction of the TRRC. Any such action would also constitute contempt of the TRRC. Law breakers have no authority to indict alleged law breakers.
Although section 15 (2) does make provision for the TRRC to send cases to the high court for contempt section 202 Subsection (2) of the Constitution has already given them the powers to handle such matters. Section 15 subsection (2) which reads as follows cannot oust the constitutional mandate:
“A person who –
(a) fails to answer a summons or subpoena issued by the Commission; or
(b) fails to answer questions of the Commission; or
(c) intentionally provides misleading or false information to the Commission, shall be deemed to be in contempt of court and may, be referred to the High Court for trial and punishment.”
On the other hand, The TRRC also has the powers of a high court in certain respects as stipulated in Section 202 Subsection (2) of the Constitution.
First and foremost, Section 202 Subsection (1) states,
“A Commission of inquiry shall-
(a) make a full and impartial investigation into the matter in respect of which the Commission is established; and
(b) furnish in writing a report on the results of the inquiry, including a statement of the reasons leading to the conclusions of the Commission.
“(2) A Commission of Inquiry shall have all the powers, rights and privileges of a judge of the High Court at a trial in respect of-
(a) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
(b) compelling the production of documents;
- c) issuing commission or request for the examination of witnesses abroad; and
- d) making interim orders.”
Hence , any witness who is alleged to be interfering with the process could also be summoned to appear and explain his or her side of the story and be cautioned if his or her action did not tantamount to any threat to use violence or other forms of intimidation which may require resorting to Section 36 of the TRRC Act. It states:
“A person who –
(a) threatens or interferes with an informant or a witness; or
(b) willfully obstructs or interferes with work of the Commission in the discharge of its functions,
commits an offence and is liable on conviction to a fine not exceeding one million dalasis or to imprisonment not exceeding three years or both a fine and imprisonment.”
These laws are not designed to be punitive. They are designed to restrain people from interfering with due process. Gambian people must bear in mind that a commission of inquiry is not a special criminal court. Those who are confessing are not compelled to make confession. There is no forced confession in criminal law. Hence, confession before a commission of enquiry is also a voluntary process. People should not be frightened to the point of shying away from making voluntary confession by intolerant remarks or behaviour. People should bear in mind that the commission is required to make incontestable findings. Their findings and recommendations alone would not automatically stand as the incontestable facts.
Section 204 of the Constitution does indicate that:
“(1) Where a Commission of Inquiry makes an adverse finding against any person, it shall, at the time of submitting its report to the President, inform such persons of the finding and the reasons therefore.”
It does not stop there.
“(2) A person against whom any such adverse finding has been made may appeal against such finding to the Court of Appeal as of right as if the finding were a judgment of the High Court, and on the hearing of the appeal the report shall be treated as if it were such a judgment
(3) An appeal under this section shall be made within three months of the appellant being informed of the adverse finding as provided by Subsection (1) or such later time as the Court of Appeal may allow.”
Section 205 further adds,
“A witness before a Commission of Inquiry shall be entitled to the same immunities and privileges as if he or she were witness in proceedings before the High Court.”
Hence those who wish to use the evidence taken before a commission of inquiry to commence cases should bear in mind that the evidence given before a Commission of Inquiry without any cross examination would go with cross examination in a court of law. How that would affect the status of the report of the Commission should be reviewed.
There is undue pressure on government officials to express opinion on the evidence being given. Justice requires fair hearing and must go hand in hand with due process, otherwise the quality of justice may not stand the scrutiny of the ECOWAS court.
We would like to remind Gambians that there are more skeletons in the cupboard and more people need to come out and speak the truth if they are not to be ostracized. Remember the interest is the beast that should be exorcised from each of our beings, otherwise we could plunge daggers in each other’s chest with smiling faces. Once one defines a person as an enemy one is capable of murdering the person without remorse.
How many people really feel the cold blooded shooting of Haruna Jatta? We do not want to scratch old wounds. Let us be stunned by the gruesome murders but let us also not become self–righteous. The traits of enmity which put daggers in chests are still with many of us, if not all of us. Let us together learn how to tame the monster in each of us then peaceful co–existence in liberty, prosperity and happiness shall be the price.