Supreme Court to Decide On Constitutionality of Indemnity Act


The Independent (Banjul)

December 3, 2001
Posted to the web December 3, 2001

Omar Bah And P.k. Jarju
Banjul, the Gambia

The constitutionality of the Indemnity Amendment Act 2001, which
indemnifies all security officers from any act they purportedly committed
in the April 2000 student unrest have been challenged in the Supreme Court
of The Gambia.

The issue of the constitutionality of the Indemnity Act began when in the
libel suit involving Ousman Sabally and the state, the latter advanced the
indemnity act to establish their defense, arguing that the Indemnity Act
immunes all security officers affected by the report of the Commission of
Inquiry from prosecution.

State security officers allegedly tortured Ousman Sabally a teacher at the
Saint Augustine's Senior Secondary School in Banjul during the student
unrest thereby causing him grievous bodily harm. He then sued the state
claiming up to D500, 000 for damages.

During the proceedings of the case before the High Court, Mr. Sabally's
counsel, Mrs. Awa Sisay-Sabally argued that the Indemnity Act is
unconstitutional and that it's coming into force retroactively affects the
rights of individuals.

The High Court however ruled that it doesn't possess the jurisdiction to
question the constitutionality of the Act. It therefore stood down the
matter while the act was referred to the Supreme Court for interpretation,
which it said, is the only court that has the jurisdiction to interpret
statutes.

There is only one question before the Supreme Court which is the
constitutionality of the act vis a vis the rights of individuals that
existed before it came into force which it retroactively affects.

Upon the commencement of the sittings of the Supreme Court, Mrs. Sabally
informed the court that she had already filed her briefs. The state
represented by Oja Olulana also informed the court that they have filed a
reply to Mrs. Sabally's briefs. He however made an application to the court
in order to make some additions to his briefs. During their arguments on
Wednesday, November 28, Mrs. Sisay-Sabally argued that the National
Assembly was wrong in enacting an act which she said retroactively affects
the rights of individuals, including Ousman Sabally, her client. She
further challenged its legality, adding that it seizes the rights of
individuals. She cited Section 100 (2) © of the constitution which provides
that " the National Assembly shall not pass a bill to alter the decision or
judgment of a court in any proceedings to the prejudice of any party to
those proceedings, or deprive any person retroactively of vested or
acquired rights, but thereto, the National Assembly may pass bills designed
to have retroactive effect".

The matter was adjourned to December 5 for ruling.

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