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Subject:
From:
MOMODOU BUHARRY GASSAMA <[log in to unmask]>
Reply To:
The Gambia and related-issues mailing list <[log in to unmask]>
Date:
Sun, 6 Feb 2000 11:27:17 +0100
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Hi Hamjatta & Gambia-l!
                                    As the Indemnity Clause has been the subject of so much debate, I thought I'd type it and send it to the L for everyone's benefit. (Note: This is taken from the draft Constitution but I think the quoted sections are part of the approved Constitution.) If there are any mistakes, they are my typo faults and I apologise.Here it goes:


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13. (1) No member of the Armed Forces Provisional Ruling Council, any person appointed Minister by the Armed Forces Provisional Ruling Council, or other appointees of the Armed Forces Provisional Ruling Council shall be held liable either jointly or severally for any act or omission in the performance of their official duties during the administration of the Armed Forces Provisional Ruling Council.

   (2) After the coming into force of this Constitution, it shall not be lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of The Gambia or any person acting under the authority of the Government of The Gambia, or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty second day of July 1994, in respect of any act or omission  relating to, or consequent upon:

(a) the overthrow of the government in power before the formation of the Armed Forces Provisional Ruling Council; or

(b) the suspension or abrogation of the Constitution of The Gambia 1970; or

(c) the establishment of the Armed Forces Provisional Ruling Council; or

(d) the establishment of this Constitution.

(3) For the avoidance of doubt, it is declared that no action taken or purported to have been taken in the exercise of the executive, legislative or judicial power by the Armed Forces Provisional Ruling Council in the name of the Armed Forces Provisional Ruling Council shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or tribunal to make any order or grant any remedy or relief in respect of any such act.

(4) The provisions of subparagraph (3) shall have effect notwithstanding that any such action as is referred to in that subparagraph was not taken in accordance with any procedure prescribed by law.

(5) It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council, or a member thereof, and alleged to be in contravention of any law, whether substantive or procedural, in existence before or during the administration of the Armed Forces Provisional Ruling Council.

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That was the end of the Indemnity Clause. The basis for not entertaining any actions to challenge any fines or recover any properties confiscated by the Armed Forces Provisional Ruling Council lies in the section titled " Preservation of Confiscation and Penalties imposed by the Armed Forces Provisional Ruling Council". It states:

"Any confiscation of any property or other penalties imposed by the Armed Forces Provisional Ruling Council or the Chairman shall not be questioned or reversed by any Court or other authority under this Constitution or any other law."

I hope you've found this useful. Have a good day.
                                                                                            Buharry.


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