As High Court Tosses Contempt Charges 

Yankuba Touray shortly before his arrest at the TRRC in June

Gambia’s Attorney General and minister of Justice, Abubacarr Tambadou,  has suffered another humiliating defeat in his feud with Yankuba Touray, a former minister in the previous government of Yahya Jammeh.

Mr Touray is in state custody after his arrest in June for refusing to give self-incriminating evidence at the truth and reconciliation commission probing alleged atrocities committed by former leader Yahya Jammeh.

Minister Tambadou had reacted with fury at Touray’s refusal to testify at the commission, describing it as contemptuous and disrespectful and vowed to vehemently an example in him so that those ‘who are even imagining that they could do something like this and get away with it will think twice about it’.

Making good of his threats, the minister filed contempt charges against Touray at a special criminal court. He also indicted him with the murder Koro Ceesay, a former Finance Minister in 1995.

Tambadou who is leading the prosecution team, argued in court that the commission has powers similar to that of the high court and Touray’s refusal to give evidence was therefore contemptuous.

But in a ruling on Tuesday, Justice Sainabou Wadda-Ceesay tossed the case on the grounds that the minister and his prosecution team did not follow proper procedure in the filing the charges against the former minister.

The judge said: ‘The failure to follow the procedure for the commencement of an action divests the court of jurisdiction and renders the suit incompetent.

“In the instant case the particulars of the parties, in particular, the name, description and address of the person sought to be committed is not featured on the face of the referral process. Clearly the high court is required to hear the matter afresh and such hearing must be commenced in the manner prescribed by state or rules of court.”

Touray’s attorney, Lawyer A. Sissoho, had earlier applied for the case to be struck out arguing that the charges against his client did not comply with court rules and provisions of the country’s criminal procedure code.

Tambadou in his response argued that the referral of the contempt case against the former minister to the court is not a proceeding he had started in his capacity as Attorney General.

Minister Tambadou has taken a personal responsibility to prosecute Yankuba Touray

He also argued that the provisions referred to by Touray’s attorney made no reference for the Attorney General to initiate criminal proceedings, which clearly would have required an originating process pursuant to the criminal procedure code.

He said the provision of the criminal procedure code is intended to allow the truth commission to relieve itself of the additional burden of contempt proceedings so that it can focus on its primary fact-finding inquiry rather than deal with the legal technicalities of contempt which should be reserved for the courts.

However Justice Wadda-Ceesay disagreed stating that the referral proceedings did not fall under any one of the forms of initiating civil and criminal proceedings.

She said it is trite that a court of law cannot entertain an inference, which runs contrary to the express provision of an act of parliament.

she added: “I am of the considered view that the referral process is founded on whether or not some provisions of the TRRC Act have been violated by Mr. Touray.

“With respect to the learned Attorney General, I cannot accept an interpretation of section 15(2) of the TRRC Act that substantially limits the scope of the constitution and the powers of the court and contravenes the constitutional and statutory provision of the (right to fair hearing) audi alteram partem.

“The principles of natural justice are enshrined in our constitution. Permit me to say emphatically that when the citizens are vested with rights, a court of law must resist any attempt to deprive a citizen the enjoyment of that right conferred by law.”

Despite his latest victory, Touray will remain at the Mile Two Prisons pending the determination of the murder charge against him.

Justice Minister Tambadou who is leading the prosecution on that case too has revealed his intentions to bring more charges against Touray.

This is not the first time Mr Touray had score legal victory against Mr Tambadou.

In March this year, Mr Tambadou ordered the arrest of the former minister after he was accused by the commission of tampering with its witnesses. He was later charged with witness tampering but the charges were dropped this month after the state was unable to proof the case against him in court.