By Landing Ceesay
The High Court of the Gambia Judge Justice B. V. P Mahoney earlier Friday quashed part of the Kanifing Municipal Council (KMC) Commission of Inquiry established by the Minister of Lands, Regional Government and Religious Affairs.
The KMC filed an application to the High Court against the Minister of Lands, Regional Government and Religious Affairs Hon. Musa Drammeh, (1st respondent) seeking the court to quash the Commission of Inquiry set up by the Minister to look into allegations of fraud and malpractice at the Council and connected matters.
The lawyer for the applicant (KMC) is Y. Senghore; while the 1st and 2nd respondents were represented by Counsel Mr. Binga and Counsel S. L. Jobarteh, and the case is presided over by Hon. Justice B. V. P. Mahoney.
In delivering his judgment, High Court Judge Justice Mahoney said there is no provision in the Local Government Act or any other law giving the power to the Minister to give power of a High Court Judge to a commission or to order the police to provide protection or to order the Attorney General to provide counsel.
“The Respondents (Minister of Lands Musa Drammeh and Attorney General) rely on the Commission of Inquiry Act for the power of the Minister to give power to the commission to examine witnesses. But the Commission of Inquiry Act as well as the Constitution only relates to commissions established by the President. They do not apply to a commission of Inquiry set up by any other person,” he said.
Justice Mahoney stated that in the absence of an enabling legal provision to give the power vested in a High Court Judge to the Commission, such power is ultra vires and made in excess of the power given to the Minister.
“The Act says institutes a commission of Inquiry to look into (a) matter and that is all the power the Commission has,” he informed.
The High Court Judge said it is established that where the offending or bad part of the decision under review by way of certiorari proceedings is severable from the good, certiorari may be granted to quash the bad only.
“In Consequence of the above, I shall not quash the whole decision of the 1stRespondent, as I have held that the 1stRespondent could by law institute a commission of Inquiry but only in accordance with the law identified above. It is only Section 3, 4 and 5 of Legal Notice 37 of 2021 published in the Gambia Gazette No. 58 dated 31st December 2021, that were made in excess of the powers conferred by law, and are to be quashed as having been made ultra vires and are hereby quashed,” he delivered the judgment.
However, Justice Mahoney said for the avoidance of doubt, the remaining sections (that is sections 1, 2, 6 and 7) of Legal Notice 37 of 2021 establishing the Commission of Inquiry into allegations of fraud and malpractice at the Kanifing Municipal Council and for connected matters are valid and effective.
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