Supreme Court Upholds Commission of Inquiry Amendment Act, Rejects Challenge to Presidential Amnesty Provisions

The Supreme Court has unanimously upheld the constitutionality of the Commission of Inquiry (Amendment) Act 2023, ruling that the National Assembly acted within its constitutional authority when it introduced provisions allowing the President to commute bans imposed on individuals barred from holding public office following adverse findings by commissions of inquiry.

In a judgment delivered on July 8, 2026, Justice A. Bah, writing for a unanimous five-member bench, dismissed a constitutional challenge brought by the Coalition of Progressive Gambians and journalist Kemeseng Sanneh, widely known as Kexx Sanneh. The court held that Sections 19, 20, and 21 of the amendment do not conflict with Sections 200 to 206 of the 1997 Constitution and do not exceed the legislative powers of Parliament.

The case tested the constitutionality of a law enacted in 2023 that created a mechanism through which individuals serving bans arising from commission of inquiry findings may seek presidential amnesty after serving at least three years of the ban and remaining free of criminal convictions during that period.

The plaintiffs argued that the amendment unlawfully introduced an executive power that the Constitution does not contemplate. They maintained that the Constitution provides only one avenue for challenging adverse commission findings: an appeal to the Court of Appeal under Section 204(2). They further contended that the President’s constitutional prerogative of mercy under Section 82 is limited to criminal convictions and cannot be extended by ordinary legislation to administrative sanctions imposed by commissions of inquiry.

Represented by lawyer L.J. Darboe, the plaintiffs argued that permitting the President to commute bans effectively undermines the constitutional framework governing commissions of inquiry and intrudes upon powers reserved for the judiciary.

The Attorney General and the Clerk of the National Assembly, represented by M.D. Mballow, Principal State Counsel, alongside A. Gibba, Senior Counsel, defended the legislation, arguing that Parliament was acting within its authority under Section 100(1) of the Constitution. They maintained that the amendment does not overturn commission findings or interfere with judicial powers but merely allows the executive to mitigate the consequences of an existing ban.

The Supreme Court agreed with that position.

Justice Bah distinguished between the findings of a commission of inquiry and the sanctions flowing from those findings, concluding that the amendment affects only the latter.

“The President has no power to overturn any such finding,” Justice Bah wrote, adding that the amendment “by any stretch of the imagination or interpretation” does not confer such authority.

Instead, the court said, the legislation creates an administrative process through which a ban may be reduced or lifted while leaving the commission’s findings intact.

The judgment emphasized that the statutory amnesty process neither replaces nor diminishes the constitutional right to appeal. Individuals who receive adverse findings remain entitled to challenge those findings before the Court of Appeal under Section 204(2), while those who choose not to appeal—or whose appeals fail—may still seek commutation of their bans under the amendment.

According to the court, the two remedies are complementary rather than mutually exclusive and may operate independently or sequentially.

The court also rejected the argument that the President’s constitutional prerogative of mercy is confined exclusively to criminal matters.

Justice Bah acknowledged that Section 82 specifically addresses criminal convictions but said the Constitution contains no provision prohibiting Parliament from authorizing executive clemency in administrative matters.

“The Constitution grants the President only a prerogative of mercy which cannot remove a conviction; it merely pardons its effect,” the judgment recalled, citing the Supreme Court’s 2019 decision in Amadou Sanneh v. The State.

The court held that the same principle applies under the Commission of Inquiry (Amendment) Act. A grant of amnesty does not erase or invalidate an adverse commission finding but merely relieves the applicant from continuing to serve the ban attached to it.

Section 21(2) of the amendment expressly reinforces that distinction by providing that a commutation “shall not expunge the findings pursuant to which the ban was made.”

Before addressing the substantive constitutional questions, the Supreme Court affirmed its own authority to review Acts of Parliament and declare legislation unconstitutional where appropriate.

Rejecting arguments that striking down legislation would violate the separation of powers, the court held that judicial review is an essential constitutional function.

“The doctrine of separation of powers does not preclude this; rather, it underlies it,” Justice Bah wrote. “The judicial function is to interpret laws and enforce the Constitution.”

The court further explained that there is no practical distinction between declaring legislation unconstitutional and striking it down. Under Section 4 of the Constitution, any law found to be inconsistent with the Constitution automatically becomes void.

The judgment also reaffirmed the longstanding presumption that legislation enacted by Parliament is constitutional unless proven otherwise.

Citing earlier Gambian and Privy Council authorities, the court described the burden on anyone challenging an Act of Parliament as “a heavy one” and concluded that the plaintiffs had failed to demonstrate that the amendment violated the Constitution.

Justice Bah also rejected the contention that the Commission of Inquiry Act of 1903 became obsolete following the adoption of the 1997 Constitution.

The court held that the Act remains valid existing law under Section 7(c) of the Constitution and noted that the 2023 amendment brought it into closer alignment with the constitutional framework by expressly defining a commission of inquiry as one established under Section 200 of the Constitution.

The judgment observed that the constitutional and statutory provisions governing the establishment of commissions are “virtually identical” in describing the President’s authority to appoint commissions of inquiry.

Although the court ultimately determined the case on its merits, it questioned whether the plaintiffs had demonstrated that they possessed a legally enforceable interest affected by the amendment.

Justice Bah noted submissions that no individual is currently serving a ban imposed under the 1903 Act because commissions have been established under the Constitution rather than the statute. If that were so, he observed, the challenge appeared to raise an abstract constitutional question rather than a dispute involving an affected party.

The court stopped short of dismissing the case on that basis but remarked that actions brought solely to vindicate the Constitution in the abstract, without demonstrating a legal interest at stake, may be incompetent.

The Supreme Court unanimously declared that Sections 19, 20 and 21 of the Commission of Inquiry (Amendment) Act 2023 are constitutional, were validly enacted by the National Assembly and remain in force.

The court made no order as to costs.

The unanimous judgment was delivered by Justice Bah on behalf of a five-member panel comprising Justices A.D. Yahaya, C.S. Jallow, A. Bah, E.F. M’Bai and O.M.M. Njie.