A Stream Can Rise No Higher Than Its’ Source!
By Gambian Outsider!
Dr. Baba Galleh Jallow’s first of a series of articles titled “Managing the Narratives” raised a fundamental issue of constitutional law. The Dr.’s explanation of why Yankuba Touray has been arrested is erroneous, misleading, and goes against “The Rule of Law” that he and many others, including myself, preached daily in the pulpit called cyberspace. The Dr.’s position is identical to an answer the Attorney General gave in an interview when he was asked the reason for Yankuba Touray’s arrest and subsequent detention. My response to Dr. Jallow’s article is also directed at the Attorney General.
The Dr. said many things in that article that I agree with. My issue is that part of the article where he says: “Some of those who insist that the TRRC must have Edward Singhateh arrested cite the case of Yankuba Touray to emphasize their point. If the TRRC could have Yankuba arrested they argue, why not Edward? The answer is that the TRRC had Yakuba Touray arrested because he was subpoenaed, reluctantly appeared before the Commission, but refused to testify, earning himself the charge of contempt. He was not arrested because he lied to the Commission. And the TRRC did not recommend or participate in the subsequent charges of murder brought against Yankuba Touray. That again, was done by the Ministry of Justice exercising its prerogative. If Edward Singhateh was subpoenaed, appeared and refused to testify, the TRRC would have certainly ordered him arrested and charged with contempt for the Commission. Whether he would then subsequently be charged with murder would have been at the discretion of the Ministry of justice.”
To make plain what the Dr. is saying is this: Yankuba Touray was arrested solely because he refused to testify before the TRRC. What an absurd thing to say. The Dr. did not base his explanation on any authority whatsoever, but on his own. I will use a three-prong approach: (1) legal history, (2) the current state of the law in democracies worthy to be so called, and (3) logic; to dissect, cut to pieces and bury forever, the Dr.’s explanation for the unconstitutional arrest and detention of Yankuba Touray based solely on the reason the Dr. has given.
The so-called Due Process of Law as one eminent writer explains, “is a constitutional guarantee that prevents governments from impacting citizens in an abusive way.” The Due Process of Law concept has its origin in chapter 29 of King John’s Magna Carta, which provides that “no freeman will be seized, dispossessed of his property, or harmed except ‘by the law of the land’.” Legal historians have it that the phrase “due process of law” first appeared as a substitute for Magna Carta’s the law of the land in a 1354 statute of King Edward III that restated Magna Carta’s guarantee of the liberty of the subject. To put it in another way, during the rule of King Edward III, Parliament enacted six statutes to clarify the meaning and scope of the liberties that Magna Carta guarantees. Those statutes interpreted the expression the law of the land, as the judicial procedures that protect a citizen’s liberties. One of the statutes introduced the term due process of law the first time that phrase appeared in Anglo-American law. The Due Process Clauses of both the Fifth and Fourteenth Amendment to the Constitution of the United States are traced to Magna Carta.
In 1537 John Lambert, a priest and fellow of Queen’s College, Cambridge, five years before his death was summoned to Lambeth Palace for an inquisition into his religious beliefs. Lambert was suspected of having become a convert to Protestantism. He had to answer by sworn affidavit to forty-five “articles,” or charges. The charges were framed in such a way as to expose Lambert’s doctrinal convictions. He refused to answer the first charge, pointing out that, “… for it is written in your own law ‘Nemo tenetur prodere seipsum” in English “No man is bound to bewray [accuse] himself [or herself].” Lambert’s claim was not to disclose to ecclesiastical judges information that would place him in criminal jeopardy. At Lambert’s time, the right against self-incrimination was still more than a hundred years away.
About a century later, John Lilburne, was tried by a jury before an Extraordinary Commission of Oyer and Terminer. After the indictment had been read, Lord Keble, the presiding judge, asked Lilburne to plead guilty or not guilty. Instead, he requested permission to give a speech, but the court insisted that he plead. He replied that, “By the laws of England, I am not to answer to questions against or concerning myself.” Lord Keble said in reply, “You shall not be compelled” acknowledging the right to remain silent to incriminating interrogatories.
(2) The Current State Of The Law in Democratic Societies Worthy Of That Name!
The Privilege Against Self-Incrimination is one of the clauses of the Fifth Amendment of the United States Constitution. The privilege is older than the “Freedom Speech” clause. The privilege against self-incrimination when invoked in America, it is commonly referred to as “taking the fifth”. The privilege not to incriminate oneself as understood of the Fifth Amendment of the United States Constitution can be asserted by any witness (not just the defendant) in a criminal trial, and by any witness in a civil trial, grand jury, legislative hearing, or other government proceedings. In all democratic societies worthy of being called such, a witness cannot be compelled to give testimony that could be used against him or her in a present or future criminal case. As the Miranda right is understood in the United States, it prohibits the government from admitting compelled statements in a subsequent prosecution of the suspect. The key word is “compelled” because where statements are voluntarily given, the Miranda right does not apply. The Fifth Amendment privilege not to incriminate oneself is not only to protect a criminal defendant from compelled self-incrimination, but also to ensure that no one is made “worse off” by asserting the Fifth than by not asserting it. See Griffin v. California (1965); Gardner v. Broderick (1968); Kastigar v. United States (1972).
Some may protest that what I am writing about is Anglo-American law and hence does not apply in Africa and specifically, in The Gambia. To make such a protest is like having one’s head in the sand! In Osarodion Okoro V. The State (1988) SC (Part II) 83 the Nigeria Supreme Court said: “The right to silence permits the accused person’s silence on question against or concerning him [or her]. It is one of the civil liberties in our legal and judicial system, even one of the fundamental human rights of an accused person under the constitution. No person tried for a criminal offence shall be compelled to give evidence at the trial.” The right to silence is the right to refuse to answer questions that may implicate a person in a present or subsequent proceeding.
Is such a right recognized in The Gambia? The answer is a resounding yes! Where can it be found? Please take a look at: Section 24(8) of The Gambia Constitution. That section says: “ No person charged with a criminal offence shall be compelled to give evidence at the trial.” There you have it as clear as the noonday sun!
It is important to keep in mind that, Yankuba Touray seems to have what appears to be two rights under the constitution regarding giving testimonies. Yankuba Touray has a constitutional right not to answer any questions from the TRRC, in court, or any other quasi-judicial body; and that right is found under section 24(8). A “cursory” reading of section 232 under Schedule 2 subsection 13(1), also seems to give him immunity which in pertinent part says as follows: “No member of the Armed Forces Provisional Ruling Council, any person appointed Minister by the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.” Yankuba Touray chose to invoke section 232(13)(1), which applies to him because he was a member of the AFPRC rather than his right to silence under section 24(8). However, I have my doubts whether Yankuba Touray can invoke section 232(13)(1) but that is for another day.
Some have made the argument that section 232 (13)(1) is an entrenched clause. It is not at all. I am not clear what The Gambia Supreme Court’s position is on section 232 (13)(1), but if the Court has ruled that it is an entrenched clause that is absolutely not true! Two points need to be made in opposition to those who argued that section 232(13)(1) was put into the constitution illegitimately or rather it was put into the constitution without going through the processes set out by the constitution regarding amendments. First, those who make this argument must show that what they are saying is actually true. The burden is on them to show that what they claimed to be the case is in fact the case. Until then, the presumption is and must be that section 232(13)(1) is legitimate. This presumption is rebuttable though. Second, for the sake of an argument, let’s grant that section 232(13)(1) did not follow the procedures set out by the constitution and therefore is unconstitutional. Yankuba Touray still have section 24(8) to protect him from being arrested for contempt.
You see, section 24(8) applies to any Gambian who is called before a court of law, civil court or any quasi-judicial proceeding to refuse to answer questions if his or her answers may be used against him or her in a future prosecution. Section 232 (13)(1) is not available to all Gambians. Section 24(8) can be overcome by the grant of immunity. For example, the TRRC can say that, if a person comes before it and answers questions, those answers will not be used against that person in court. If immunity is granted to that person, then he or she cannot refuse to testify. One of two kinds of immunities that may be granted are: Transactional Immunity and Use and Derivative Use Immunity. You guys can look up the difference between these two kinds of immunities. The grant of immunity cannot overcome section 232(13)(1), because it is an immunity provision already! Immunity is not granted to those who already have it. If you are wondering whether section 232(13)(1) can be overcome; my answer, as I alluded to above, is that, it can be overcome by principles of construction and interpretation and not arguments that have no basis in law or fact or both. A careful reading of section 232(13)(1) reveals this to be the case. It is the job of the AG’s office to figure out how to overcome 232(13)(1) through construction and interpretation. That’s why they are paid the big bucks!
What is clear so far is that, we know where the concept of Due Process originated. We know where and how the right not to self-incriminate comes from. We also know that the right not to self-incriminate oneself is not limited only to the jurisdictions of America and England, but also in Nigeria and The Gambia, and in all democratic societies worthy to be so called. It is now time to bring the third prong – the logical basis- to bear on what the Dr. said about why Yankuba Touray has been arrested and in detention.
In the Dr.’s own words: “Some of those who insist that the TRRC must have Edward Singhateh arrested cite the case of Yankuba Touray to emphasize their point. If the TRRC could have Yankuba arrested they argue, why not Edward? The answer is that the TRRC had Yakuba Touray arrested because he was subpoenaed, reluctantly appeared before the Commission, but refused to testify, earning himself the charge of contempt. He was not arrested because he lied to the Commission. And the TRRC did not recommend or participate in the subsequent charges of murder brought against Yankuba Touray. That again, was done by the Ministry of Justice exercising its prerogative. If Edward Singhateh was subpoenaed, appeared and refused to testify, the TRRC would have certainly ordered him arrested and charged with contempt for the Commission. Whether he would then subsequently be charged with murder would have been at the discretion of the Ministry of justice.”
The Dr. is saying that (1) Yankuba Touray was arrested not because he lied to the Commission but because he refused to testify and therefore he was held in contempt. (2) That if Edward Singhateh had refused to testify like Yankuba Touray did, he too would have been held in contempt, arrested and detained. Before showing the fallacy in the Dr.’s argument, one might asks why the Dr. needed to mention that Yankuba was not arrested because he lied to the Commission. How could that have been when he never testified anyway? The issue of Yankuba lying or not to the Commission is irrelevant and has no bearing on what is done to him because he never testified. In other words, the opportunity for Yankuba to have lied never presented itself simply because he never testified. You know, in a proceeding, one has to testify in order to lie. Where no testimony is given, one cannot lie.
To put in logical construct what the Dr. said about Yankuba’s arrest, here is the syllogism in its suppressed form:
(1) Yankuba Touray came before the TRRC and refused to testify;
(2) Therefore, he was arrested for contempt of the TRRC.
The full form of the syllogism is this:
(1) All who come before the TRRC and refused to testify will be held in contempt and arrested;
(2) Yankuba Touray came before the TRRC and refused to testify;
(3) Therefore, he was arrested for contempt of the TRRC.
In case you missed it, you should have noticed that in the full form of the syllogism, as expressed, the Dr. never said anything about premise number (1) in the full form. To break down the full form of the syllogism: Premise number (1) is the major premise, number (2) the minor premise and number (3) the conclusion. The rule, according to The Philosopher, is that if you accept numbers (1) and (2), then number (3) necessarily follows. In other words, you cannot accept premises (1) and (2) and reach a conclusion other than as expressed in number (3), the conclusion
In its suppressed form as the Dr. put it in his argument, the major premise is suppressed because it is the weakest premise and easily to be defeated. There is, however, more than one way to suppress a syllogism. For example, the Dr. could have said:
(1) All who come before the TRRC and refused to testify will be held in contempt and arrested (major premise)
(2) Therefore, Yankuba Touray was arrested for contempt of the TRRC (conclusion)
In this suppressed form, the minor premise, Yankuba Touray was held in contempt of the TRRC, is suppressed, meaning not expressed. Here is one more example of a suppressed syllogism using the same premises:
(1) Yankuba Touray was arrested for contempt of the TRRC. (conclusion).
(2) Because Yankuba Touray refused to testify before the TRRC. (minor premise).
I said above that the Dr. suppressed the major premise: All who come before the TRRC and refused to testify will be held in contempt and arrested. I cannot tell with certainty whether the suppression is deliberate or ignorance. However, that does not take away from the absurdity of the Dr.’s argument. For the Dr. s’ argument to be valid, the major premise must be true. But the major premise is NOT true because if accepted, it would contravene section 24(8), and “possibly” 232(13)(1). If the statute that created the TRRC Act gave the Commission the power to arrest people who refuse to testify when they come before the TRRC then the statute is repugnant to section 4 of The Gambia Constitution. The statute that created the TRRC Act cannot be supreme over a constitutional provision because it is only an act of the National Assembly and not a constitutional provision. If the Dr.’s position is correct (but it is not), then the TRRC Act not only contravenes sections 4, but it would also be supreme over sections 24(8) and 232(13)(1). That cannot be, hence, the Dr. is way off the mark!
Another point worth mentioning because it is an important one is that, the prohibition of section 24(8) encompasses the right to remain silent. If no person can be COMPELLED to give evidence, it follows that anyone can refuse to testify without any retaliation whatsoever. If someone can be punished for invoking the right to remain silent then what is the use of the provision? The provision is in the constitution for a reason and cannot be ignored.
The Dr.’s confusion is this: He either could not distinguish or failed to see the difference between “Refused to Appear” vs. “Refused to Answer Questions.” It is legitimate for the TRRC to have the power to have people arrested who refused to appear before it when subpoenaed to do so. However, it is unconstitutional and therefore illegal to have those arrested who come before the TRRC but refused to answer questions if their answers will put them in jeopardy of prosecution. To refuse to appear before the TRRC is one thing and to refuse to answer questions before the TRRC is another matter altogether.
On the point that the Attorney General has the prerogative to have people arrested who are accused of committing crimes, the Dr. is correct. However, it is illegal for the Attorney General to have anyone arrested without probable cause. The elephant in the room is, what is the evidence sufficient to have Yankuba Touray arrested and charged with murder? I have demonstrated that if Yankuba’s arrest was based solely on his refusal to testify before the TRRC then his arrest was unconstitutional and illegal. On the other hand, if his arrest was based on the testimonies of those yahoos (Junglers or Jungulers) who put him at the place and time where and when Koro Ceesay was murdered then not only the yahoos who testified to those facts, but everyone else who was present at that place and time should also be arrested. But this is the argument that the Dr. rejected. Yet, neither the Dr. nor the Attorney General have said what the evidence is that warranted Yankuba Touray’s arrest and charged with murder other than the testimonies of the yahoos. For the sake of an argument, let’s grant that Yankuba Touray’s arrest for contempt is constitutional. How did an arrest for contempt lead to a charge for murder? Where is the evidence that brought this charge? Has anyone testified that Yankuba Touray was the only person who murdered Koro Ceesay? If evidence exist that warrants the arrest of Yankuba Touray and charged with murder, it also must warrant the arrest of all who were present and participated in the murder. There is something arbitrary here! Why is it that Yankuba Touray alone is arrested and charged with the murder of Koro Ceesay at this time of the TRRC proceedings? Unless these questions are answered, then the arrest of Yankuba Touray was simply because he refused to testify before the TRRC. If that is the case, and I believe that to be the case, then his arrest was unconstitutional and illegal, as I have demonstrated above.
One other thing about the yahoos; if they think they will not be prosecuted when the TRRC finishes its work then they are in for the shock of their lives. After openly admitted to crimes against humanity among other things, what defense can anyone of them use when their respective trials begin? This is just one of the many blunders the yahoos made by going to the TRRC without legal counsel. Every crime the yahoos admitted can and will be use against them and they cannot do anything to prevent such evidence from coming in.
Whether Yankuba Touray is guilty of murder is not for me to say. There is a process in place to determine who is guilty or not of a crime in a court of law. My concern, and it is a great one, is that the process Yankuba Touray has been dragged by, offends the constitution of The Gambia. If such a process is allowed without being challenged, it then becomes precedent. Based on what I have read and heard so far, there is little difference between the abuse of the legal system during the dictator and what has been done to Yankuba Touray by this administration. And if anyone beleives Yankuba Touray’s arrest is not a means to compel him to testify then that person is living in another universe. Yankuba Touray’s arrest and detention is a tactic used by the government to threaten, intimidate, and compel testimonies from people who may not want to testify. The TRRC is telling those who are to appear before it that if they do as Yankuba Touray did, they too will be arrested for contempt. So, it should not be a surprise to anyone when the Dr. said if Edward Singhateh did what Yankuba did, he too would have been arrested for contempt of the TRRC.
The Dr.’s explanation for the arrest of Yankuba Touray is based on his own authority. It s a terrible argument, unconstitutional and illegal and must be buried not six feet deep but thrice that, thirty-six feet deep!
Editors note: The author’s views do not represent the position of the Freedom Newspaper. Thanks for your attention.