Why Commissions are Dangerous in a Republic
10 October 10, 2019
By Capt. Ebou Jallow rtd
Commissions of inquiry are dangerous in a republic because they polarize our society. They can obviously be exploited for political advantage and in the process weaponizing the rule of law into an instrument of selective justice and mass persecution. The national assembly should never allow itself to be manipulated into a rubber stamp sidekick of an executive that is led by a clueless president, and advised by a mischievous attorney general. The decision setting up the Janneh Commission and to some extent the TRRC, were all inevitably political reflecting the comparative strengths of those in power today and those removed from power. The Janneh Commission was demonstrably political and the TRRC obviously quasi-legal.
The section 200 of Gambia Constitution that empowers the president to set up a commission purely based on his “opinion of the public good” ought to be amended. Rather, a commission of inquiry must be based on an independent external audit of the Gambia’s finances as it may be. However, this was never the case with the Janneh Commission. When one paraphrases the prescience in Federalist No. 65, Alexander Hamilton predicted that a commission’s adverse finding “will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side, or on the other; and in such cases, there will always be the greater danger, that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
And TRRC’s lead counsel made a public display of his partialities, animosity, interest and ignorance of law by invoking the Kelsen theory of grundnorm [basic law] twice out of context (during the testimony of Lawyer “Abubakarr” Ousainou Darboe; and during an interview with Kerr Fatou); both demonstrating a regression from clarity into some quasi-juridical re-litigation of the AFPRC and APRC 22 years in government. The factional bias is in plain display and the political calculation for future malicious prosecutions of their perceived enemies is also in play throughout the TRRC process- they (Essa Faal and Ba Tambedou) interpret the law based on their own childish and neurotic understanding of the Gambian Constitution. The AFPRC was established by Decree Number 1 in 1994 which effectively abrogated the 1970 Constitution, and most importantly established the sovereignty of the AFPRC in a state of exception in the period between the 1970 and 1997 constitutions. Even by Kelsian standards, which Essa Faal always yaps about, this decree presupposes the legal validity of the subsequent 1997 Constitution which President Barrow swore an oath to protect, and which also authorizes the TRRC Act today: The AFPRC decree was the authorizing norm (grundnorm) which has not been authorized by any other norm… However, listening to Essa Faal’s tortured understanding of the law one should just take a leap of faith from the present political status quo and jump over the state of exception during the AFPRC transition period back in time to the 1970 constitution in order to relitigate his own prejudices. The Transitional and Consequential clause of the 1997 Constitution sets out to exactly avoid such legal obfuscations and juridical conundrums that both the Ministry of Justice and the TRRC find themselves in today. When a legal chain of validity comes to an end, such as the abrogation of the 1970 constitution and the AFPRC transition period, then an “ought” needs to be presupposed such as to establish a new legal order. If there were no transitional provisions in the 1997 Constitution then the Gambia would have still ruled by decrees, and the deliberate attempt to ignore this fact is a crisis of fidelity to the rule of law and a harbinger for a civil war in the Gambia.