Constitutional Commissions of Inquiry and Statutory Commissions: Understanding the Distinction

By Abdoulie Fatty

Recent public discussion surrounding the qualifications for appointment to the office of Chief Justice has prompted comparisons with the appointment of the Chairperson of the Truth, Reconciliation and Reparations Commission (TRRC). Some have asked whether the constitutional scrutiny applied to one office should also have applied to the other.

This article is seeks to explain a constitutional distinction between a Commission of Inquiry established under the Constitution and a specialised statutory commission created directly by an Act of the National Assembly.

The distinction is more than technical. Public institutions may exercise similar functions, bear similar names and even possess comparable investigative powers, yet derive their authority from entirely different legal sources. Once that distinction is appreciated, much of the present discussion becomes easier to understand.

Nor is this unique to The Gambia. Across the Commonwealth, legislatures have frequently created specialised commissions to address exceptional national circumstances while leaving intact the ordinary constitutional framework governing commissions of inquiry.

The constitutional framework

The starting point is sections 200 to 204 of the 1997 Constitution.

Together, these provisions establish what the Constitution describes as a Commission of Inquiry. Section 200 empowers the President to appoint such a commission whenever it appears necessary to inquire into a matter of public importance. Section 201 prescribes the qualifications of the sole commissioner or chairperson, while the succeeding provisions regulate the Commission’s powers, procedure and the legal consequences of its report.

At this point, one important observation should be made. The Constitution is regulating a particular constitutional institution. It is not attempting to prescribe the legal framework for every commission Parliament may establish in the future.

That understanding becomes even clearer when the constitutional provisions are read alongside the Commission of Inquiry (Amendment) Act, 2023.

The Amendment inserted a new interpretation section defining a “Commission of Inquiry” as “the commission issued under section 200 of the Constitution of the Republic of The Gambia, 1997.”

That definition is significant.

Parliament did not define a Commission of Inquiry as every commission exercising investigative powers. Nor did it adopt language broad enough to encompass every statutory commission established by legislation. Instead, it tied the expression directly to section 200 of the Constitution.

The significance of that amendment has since been recognisedby the Supreme Court. In Coalition of Progressive Gambians v Attorney General, the Court earlier this month observed that the insertion of section 2A links every Commission of Inquiry issued under the Commission of Inquiry Act directly to section 200 of the Constitution, thereby bringing the statutory framework into conformity with the Constitution. The Court also explained that section 200 constitutionalised a mechanism that had historically existed under statute. That observation is important because it confirms the constitutional identity of a Commission of Inquiry today without suggesting that Parliament has lost the power to establish different statutory institutions where circumstances require them.

Against that background, a separate question naturally arises. When Parliament enacted the Truth, Reconciliation and Reparations Commission Act, 2017, did it invoke the constitutional mechanism created by section 200, or did it establish a different statutory institution governed by its own legal framework?

The answer lies in the legislation itself.

Unlike a Commission of Inquiry issued under section 200, the TRRC was established, not through the constitutional mechanism but statutory mechanism. Parliament instead enacted dedicated legislation creating the Commission directly.

The language of the Act is revealing. It declares that “there is established the Truth, Reconciliation and Reparations Commission.”

That choice of language is not incidental. Throughout Gambian legislation, the National Assembly commonly uses the phrase “there is established” when creating a new statutory body with its own legal identity. Here, the National Assemblywas not activating the constitutional framework governing Commissions of Inquiry. It was creating a specialisedinstitution to address the particular demands of truth-seeking, reconciliation and reparations in the aftermath of authoritarian rule.

Once the Commission was established, the Act itself proceeded to regulate its composition, appointments, powers, functions and administration. The legal framework governing the TRRC is therefore found principally in the statute that created it, while remaining, like every Act of the National Assembly, subject to the Constitution.

That legislative choice is neither unusual nor constitutionally suspect. Parliament regularly establishes statutory bodies to discharge specialised public functions. The legal character of each institution depends upon the legislation that creates it.

That, in turn, explains why the constitutional qualifications applicable to the chairperson of a Commission of Inquiry do not automatically extend to every statutory commission subsequently created by Parliament. Whether they do depends upon the legislation establishing the particular institution.

The Gambian approach is by no means exceptional.

The Commonwealth experience

The distinction drawn by the Gambian Constitution and the TRRC Act is not unusual. Comparable approaches can be found across a number of Commonwealth jurisdictions, particularly those that established truth and reconciliation mechanisms following periods of political upheaval or conflict.

Ghana offers perhaps the closest constitutional comparison.

Articles 278 to 280 of the 1992 Ghana Constitution establish the constitutional Commission of Inquiry and prescribe the qualifications of its chairperson. Ordinarily, the Commission is chaired by a Justice of the Superior Court, a former Justice or a person qualified for appointment as such, although the Constitution also permits the appointment of a person possessing special qualifications relevant to the subject matter of the inquiry.

Those constitutional requirements apply because the Commission derives its authority directly from the Constitution.

When Ghana later embarked upon its programme of national reconciliation, however, Parliament chose a different course. Rather than relying on the constitutional Commission of Inquiry provisions, it enacted the National Reconciliation Commission Act, 2002 (Act 611). That Act created a separate statutory commission and prescribed its own framework governing appointments, composition and qualifications.

The significance of that legislative choice should not be missed. Ghana retained its constitutional Commission of Inquiry while, at the same time, creating a distinct statutory institution to deal with the country’s reconciliation process. Although both bodies performed investigative functions, they operated under different legal regimes because they derived their authority from different legal sources.

A similar pattern emerges in South Africa.

Following the end of apartheid, Parliament enacted the Promotion of National Unity and Reconciliation Act 34 of 1995, establishing the Truth and Reconciliation Commission. It did not invoke the ordinary constitutional framework governing commissions of inquiry. Instead, it created a specialised statutory institution designed to address the country’s unique transition to constitutional democracy.

The Commission was chaired by Archbishop Desmond Tutu. He was neither a serving judge nor appointed under the constitutional provisions regulating ordinary commissions of inquiry. That presented no constitutional inconsistency because his eligibility fell to be determined under the legislation establishing the Truth and Reconciliation Commission rather than under the constitutional provisions governing ordinary commissions of inquiry.

The same legislative approach is evident elsewhere. Sierra Leone established its Truth and Reconciliation Commission under the Truth and Reconciliation Commission Act, 2000, while Kenya enacted the Truth, Justice and Reconciliation Act, 2008 to establish a specialised statutory commission with its own composition, qualifications and mandate.

These jurisdictions differ in many respects, but they illustrate a common constitutional principle. The existence of a constitutional framework governing ordinary commissions of inquiry does not prevent Parliament from creating specialisedstatutory commissions where national circumstances require institutions with a different mandate or structure.

Constitutional commissions of inquiry and specialisedstatutory commissions may share certain investigative functions, but they are not necessarily governed by the same legal rules. Their legal character depends upon the instrument from which they derive their existence.

That distinction is the key to understanding the relationship between sections 200 to 204 of the Constitution and the TRRC Act, 2017.

Why the distinction matters

The purpose of drawing this distinction is not to elevate one legal framework above the other. Constitutional Commissions of Inquiry and specialised statutory commissions each serve important public purposes. The former provides a constitutional mechanism for investigating matters of public importance. The latter enables Parliament to design institutions capable of responding to particular national circumstances. They are different constitutional tools, each intended for a different task.

The TRRC was established to help The Gambia confront an exceptional period in its history. Its mandate extended well beyond the traditional role of a Commission of Inquiry. It was tasked not merely with investigating events, but with establishing an historical record, promoting reconciliation, identifying victims, recommending reparations and proposing institutional reforms aimed at preventing future abuses. Parliament was therefore entitled to create a bespoke statutory framework suited to those objectives.

This explains why the legal analysis begins, not with the powers exercised by the Commission, but with the source of its legal existence. Institutions may perform similar functions while deriving their authority from different legal instruments. It is the legislation creating the institution—not simply the work the institution performs—that determines the legal framework governing its establishment, composition and operation.

The position adopted in The Gambia is consistent with the broader Commonwealth experience. Ghana, South Africa, Sierra Leone and Kenya all demonstrate that constitutional commissions of inquiry and statutory truth commissions have been treated as distinct legal institutions, notwithstanding the investigative functions they share. That consistency across jurisdictions is not accidental. It reflects a common understanding that constitutions often establish general institutional frameworks while leaving Parliament with sufficient flexibility to legislate for exceptional national needs.

Recent public discussion has understandably focused attention on constitutional qualifications for public office. In doing so, however, it has also highlighted the importance of identifying the legal framework applicable to the institution under consideration before drawing comparisons with another. Institutions that appear similar are not necessarily governed by the same constitutional or statutory provisions.

Ultimately, constitutional interpretation begins with the constitutional text, considers the legislation enacted pursuant to it and asks a straightforward question: what legal instrument created the institution in question? The answer to that question will often determine the legal framework that follows.

That, in my respectful view, is the position in relation to the TRRC. The Commission derived its existence from the Truth, Reconciliation and Reparations Commission Act, 2017, just as a constitutional Commission of Inquiry derives its existence from the framework established under sections 200 to 204 of the Constitution. The two institutions may share certain investigative characteristics, but they are not the same constitutional institution, nor should they automatically be treated as though they are.