12 June, 2000.
Chief Justice,
High Courts of The Gambia,
Independence Drive,
BANJUL.
ON THE CORONER'S INQUEST AND THE COMMISSION OF ENQUIRY
An effective system for the dispensation of justice must embody the
existence of an impartial and independent tribunal or commission that looks
into allegations of injustice with the view to facilitate redress. Injustice
erodes confidence in public institutions. It creates distrust and promotes
insecurity.
Suffice it to say, when mechanisms exist for exposing and redressing
injustice, public confidence is restored, distrust eradicated and security
promoted. You would agree that injustice unredressed is justice denied.
It goes without saying that the Coroner's Inquest had been presented to the
Gambian people as a mechanism for pursuing the truth regarding the deaths of
the students who fell on 10 and 11 April 2000. It is reported that the
report of the Coroner has been submitted to the Attorney General's Chambers.
The report is still not made public. What is difficult to comprehend is that
the report is yet to reach your office.
You would agree with us that when reports which have awakened such profound
public interest gather dust on shelves, public confidence must become the
casualty.
It is rather surprising that the provisions of the Coroner's Act are yet to
be followed to the letter. Section 9, subsection (2) of the Coroner's Act
states categorically that:
"Subject to the provisions of section 11 of this Act, if before or at the
termination of any such inquiry a Coroner is of the opinion that the
commission of an offence by some known person has been disclosed, he shall
issue a summons or warrant for his arrest, or take such other steps as may
be necessary to secure his attendance to answer such charge. On the
attendance of the said person, the Coroner shall commence the inquiry de
novo and shall proceed in the manner provided in Part VI of the Criminal
Procedure Code for holding a preliminary inquiry into an offence."
Subsection (3) adds that
"If at the termination of the inquiry the Coroner is of opinion that an
offence has been committed by some person or persons unknown, he shall
record his opinion accordingly."
Subsection (4) further states that
"If at the termination of the inquiry the Coroner is of opinion that no
offence has been committed, he shall record his opinion accordingly."
What is of paramount importance is the role accorded to you as Chief Justice
by the Coroner's Act. Section 9, subsection (5) asserts that
"At the termination of the inquiry, the Coroner shall forthwith transmit the
proceedings or a certified copy thereof to the Chief Justice."
It is stipulated that the proceedings or a certified copy should be
forwarded to you without any delay. This is the verdict of the law and it is
incontrovertible.
Section 10 accords you the powers of review. It states:
"(1) The Chief Justice may examine the record of any such proceedings for
the purpose of satisfying himself as to the correctness, legality or
propriety of any finding or verdict and as to the regularity of such
proceedings."
Subsection (2) adds that
"Where the Chief Justice, by reason of such examination, is not satisfied as
to the correctness, legality or propriety of any finding or verdict he may,
after affording the Attorney General an opportunity of being heard therein,
exercise any of the powers conferred upon him by subsection (1) of section
11 of this Act."
Subsection (3) further states
"Where the Chief Justice, by reason of such examination, is not satisfied as
to the regularity of the proceedings, he may take such action not involving
an alteration of the finding or verdict, as he may think necessary to cure
such irregularity."
It is, therefore, abundantly clear that the opinions of the Coroner are not
final. The ultimate status of the proceedings are connected with, dependent
on and determined by your review. You have the power, after affording the
Attorney General an opportunity of being heard, to:
"direct an inquest to be reopened for the taking of further evidence, or
for the inclusion in the proceedings thereof and consideration with the
evidence already taken, of any evidence taken in any judicial proceeding
which may be relevant to any issue determinable at such inquest, and the
recording of a fresh verdict upon the proceedings as a whole;
"quash the verdict in any inquest substituting therefor some other verdict
which appears to be lawful and in accordance with the evidence recorded or
included as hereinbefore in this section provided; or
"quash any inquest with or without ordering a new inquest to be held."
What is absolutely essential now is for the report to be forwarded to you
for immediate review. The Coroner should transmit the proceedings or a
certified copy forthwith to you for review.
The law has made this a requirement because of the importance it gives to
your independence and impartiality. This is engraved in section 120,
subsection (3) of the Constitution which asserts that
"In the exercise of their judicial functions, the courts, the judges and
other holders of judicial office shall be independent and shall be subject
only to this Constitution and the law, and, save as provided in this
Chapter, shall not be subject to the control or direction of any other
person or authority."
It is anticipated that the appropriate measures will be taken with immediacy
to protect the independence, dignity and effectiveness of the process as
required of any instrument for conducting an inquiry into issues of public
concern.
Furthermore, we have received inquiries regarding the terms of reference of
the Commission of Inquiry into the events of 10 and 11 April 2000, as well
as its composition. We decided to contact the National Printing and
Stationery Corporation to get a Gazette so as to find out what is legally
prescribed as the terms of reference of the Commission. Unfortunately, we
were told that a Gazette containing such terms of reference has not been
published.
In this regard, we do not consider it responsible to make any comments even
if the intention is to make suggestions that are not designed to undermine
the integrity of the Commission of Inquiry. The manner in which the inquiry
is being conducted and the facts that are being reviewed are being followed
with much interest. We are not receiving the type of doubts that were being
expressed before regarding the significance of the Commission. However, the
law is the law and due process of law must proceed in accordance with what
is prescribed by law.
The Commission of Inquiry Act states under Section 17:
"All commissions under this Act, and all revocations of any such Commission,
shall be published in the Gazette, and shall take effect from the date of
such publication."
Needless to say, Section 200 of the Republican Constitution makes provision
for the establishment of Commissions of Inquiry. Section 200, subsection (1)
(d) covers the mandate of your Commission. It reads:
"The President may, whenever he or she deems it advisable, issue a
Commission appointing one or more Commissioners and authorising such
Commissioners to inquire into-
"(d) any matter whatever arising in The Gambia in which an inquiry would, in
the opinion of the President, be for the public good."
This means that the President may appoint Commissioners to make inquiries.
According to the Interpretation Act, such appointments are classified under
subsidiary legislation which means "any proclamation, rule, regulation
order, notice, by-law or other instrument made under any Act or by or under
any other lawful authority and having legislative effect".
Section 11 paragraph (d) of the Interpretation Act indicates:
"subsidiary legislation shall be published in the Gazette and shall have the
force of law upon such publication thereof or from the date named
therein:...."
It is, therefore, absolutely essential to ensure that the establishment of
the Commission is Gazetted for public notice. In this way, the claims and
counter claims can be objectively assessed and thus ensure a comprehensive
understanding of the mandate of the Commission.
While anticipating that you will give the opinions expressed their due
consideration, we remain,
Yours sincerely,
.......................................
Halifa Sallah
For: The Editorial Board.
cc: Attorney General and Secretary of State for Justice
Coroner, Coroner's Inquest Into the Deaths of 10 and 11 April
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