Court Refuses AG’s Attempt To Remove MCA From AKI Case

Court Dismisses Attorney General's Attempt to Remove MCA's Name in AKI Case (66 babies death of paracetamol syrup) By Kexx News The Attorney General attempted to remove the name of the Medicine Control Agency (MCA) in the suit file by 19 families of victims of Acute Kidney Infection, but Justice Ebrima Jaiteh of the Banjul High Court dismissed the application, saying MCA could be sued. He said the application lacked merit and he dismissed it. The 19 Families of Acute Kidney Injury (AKI) Victims filed a lawsuit against Maiden Pharmaceutical, Atlantic Pharmaceuticals Company, Medicines Control Agency, Ministry of Health and Attorney General seeking justice for the tragic demise of their children caused by cough syrup manufactured by the Maiden Pharmaceutical Company. By a motion dated and filed on 7 October 2024, the Attorney General on behalf of the MCA, Ministry of Health and his behalf (referred to in this article as Applicants) through State Counsel Binga D, the Director of Civil Litigation at the Attorney General’s Chambers asked the court to pass an order dismissing the suit against MCA. It is the submission of Binga D (applicants) that they are not liable to be sued in tort unless sovereign immunity has been waived and, therefore, the court lacks subject matter jurisdiction over the claim. Also, he argued that actions and omissions of the State and its officials in the exercise of discretionary functions, or its role as a regulator, are immune from civil liability. The safety policies of the State are discretionary regulatory and are immune from civil liability; Binga said the core policy decisions by the State are immune from tort liability in general and negligence in particular because they are fundamental constitutional and institutional roles vested in the executive and not subject to the judiciary’s private law oversight. He added that the separation of powers doctrine precludes the judiciary from adjudicating and/or imposing liability on either the executive or legislative branches of government based on the performance mandates; of their core constitutional institution matters. It is his case that there is no waiver of sovereign immunity in matters of activities involving the exercise of core constitutional and institutional roles or mandates by the State, and the claims or disputes involving the State policies are not justiciable and not capable of adjudication in civil litigation. He concluded that the victims’ families have failed to identify any applicable waiver of the state sovereign immunity. In moving his application, Binga D Counsel for the Applicants submitted that prayer 3 on the writ of summons cannot be granted pursuant to sections 17 (2)&(4) of the State Proceedings Act and also referred the court to the case of Yakumba Jaiteh versus the Clerk of the National Assembly and Others. Counsel Binga further referred the court to case law authorities from the Common Law Jurisdiction of England without providing the said authorities to the Court. It is his submission that the actions of the Applicant as a statutory body are not open to civil action and further argued that the actions of the Respondents against the Applicants and its agencies do not grant the families the right to sue the State as the State is not liable in tort. In responding to the application on points of law, Senior Counsel Yassin Senghore for the families referred the court to section 7 of the 1997 Constitution of The Gambia and submitted that it binds this court and also refers this court to the case of Yakumba Jaiteh at page 21. She stated that the court cannot grant an injunction against the State; however, the court can make declaratory orders and determine any act. Counsel Yassin Senghore further submitted that what the families are seeking are declaratory orders, which are provided for under the State Proceedings Act without recourse to a fiat. Counsel Yassin Senghore refers this court to sections 3, 4(1) (3), 10, and 17(2) (4) of the State Proceedings Act. She argued that the court has the power to hear the case. She argued that the Medicine Control Agency is a corporate body that can sue and be sued and was established by the Medicines and Related Product Act of 2014. Counsel Yassin Senghore further argued that the Common Law authorities cited are not binding on this court and section 211 of the 1997 Constitution is irrelevant to the issues before the court. She urged the court to dismiss the case. In his ruling, Justice Jaiteh said it is important to state that the right to sue the state is provided under Part Il of the State Proceedings Act, which provides “A claim against the State may, subject to the provisions of his Act, be enforced as of right and without any fiat, by proceedings taken against the State for that purpose in accordance with the provisions of this Act.” The Import of section 3 above is that a suit can be filed against the State subject to other provisions of the State Proceedings Act, which means that the application of section 3 is subjected to other provisions of the said Act. Section 4 of the State Proceedings Act (supra) deals with the liability of the State in tort. “The State as a party is subject to all the liabilities in tort as if it were a private person of full age and capacity and this I shall hold as a fact,” Justice Jaiteh said. Justice Jaiteh said the MCA was established under section 3(1) of the Medicines and Related Products Act of 2014; that the Agency is a statutory body corporate with perpetual succession and may sue and be sued in its corporate name. “It, therefore, implies that the Medicines Control Agency can sue and be sued by any party, and this I shall hold as a fact,” Jaiteh said. Justice Jaiteh said the requirement of seeking the consent of the State or Sovereign Immunity does not apply in this jurisdiction and is of no moment. “It is as of right that any person who is aggrieved and has a claim against the State can sue the State without seeking the State’s consent to do so and can be enforced as of right,” he said. “Consequently, Sovereign Immunity as argued and submitted by Binga D. Of Learned Counsel is immaterial and inapplicable in this jurisdiction,” he added. He held that the Medicines Control Agency, the Ministry of Health and the Attorney General are liable to be sued in tort, and no sovereign immunity is required in law. “State policies are justifiable and capable of adjudication in civil litigation if they give rise to cause of action in tort against the servant or agent of the State,” he said. On the issue of whether the separation of powers doctrine precludes the judiciary from adjudicating and/or imposing liability on either the executive or legislative branches of government based on the performance of their core constitutional or institutional mandates and not subject to the judiciary’s private law oversight. Justice Jaiteh said it is important to state that the term judiciary, in essence, denotes the branch of the State, popularly known as the third arm of the State that is constitutionally responsible for interpreting the laws and administering justice. He added that the primary role of any court is to do justice. “A court of law is enjoined to dish out justice to parties to any proceedings in consonance with the law. A court of law is not allowed to jettison or turn a blind eye to sacred prescriptions of legislation in the guise of doing justice, be it substantial justice. That would be akin to abdication of its sacred official duty,” he said. He said the court, in execution of its core mandate of adjudication, is obligated to interpret and administer justice according to law. “Where the executive or the legislature is a party to a proceeding, the court is obligated to interpret and administer the law and is not precluded liability on the executive or legislative branches of government based on the law where that performance has given rise to a cause of action in tort,” he said. @highlight Follow Everyone Following #CourtReporting #thenationeye #factualnews

Judge Asked Sheriff of High Court Allow Paulo Djabi Access His Money

Justice Ebrima Jaiteh of the Banjul High Court ordered the Sheriff of the High Court to allow Paulo Djabi to have access and be allowed to receive 25% of the monies seized from him by the Drug Law Enforcement Officer (DLEAG) The Judge said the payment is for his reasonable living expenses with his family and litigation fees for defending the criminal charges or proceedings against him. Djabi is facing 21 criminal charges relating to dealing with prohibited drugs and money laundering. His money, vehicles and motorcycle were seized from him. The money was deposited with the Sheriff of The Gambia as ordered by the High Court on 31 October 2023. He made this order in a ruling delivered in relation to a motion dated 4 June 2024 and filed on 5 June 2024. In that motion, Lawyer Sheriff Marie Tambadou for Paulo Djabi asked the court to vary its orders dated 30 April 2024; in the alternative to allow him to have access and be allowed to receive 50% of the monies belonging to him and deposited with the Sheriff of The Gambia. The motion of notice is supported by an affidavit of 8 paragraphs sworn to by Paulo himself and also attached five (5) documents exhibited and marked as "PJ1" to "PJ5 respectively. The State opposed the application and filed an affidavit in opposition of 10 paragraphs sworn to by Fatou Waggeh, a clerk at the Attorney General's Chambers and the Ministry of Justice. There was 1 document attached to the opposing sworn statement. Paulo filed an 11-paragraph affidavit in reply sworn by himself.

In moving his application, Senior Lawyer S.M. Tambadou for Paulo relied on the averments in the supporting affidavit and the affidavit in reply. It is his submission that the application is brought pursuant to the Anti-Money Laundering and Terrorist Financing Act, Order 25 Rule 11 of the Second Schedule of the High Court Rules and Order 6 Rule 2 of the First Schedule of the High Court Rules. It is the submission of Counsel Tambadou that the court made an order on 31 October 2023 for six (6) months pending the outcome of the investigation. Counsel Tambadou argued that section 51(8) of the Anti-Money Laundering Act limits when the order can last and no more. Counsel Tambadou argued that when the Court made an order on the 30 April 2024, extending the order of the court for two months was ultra vires. Counsel Tambadou argued that at the time the application for an extension of two months was made, there was no charge before the court and there was no need for the extension of the restraining order. Counsel Tambadou refers this court to section 51(6) of the Anti-Money Laundering 8 Terrorism Financing Act, which gives the court the power to make an order for provision for reasonable living expenses and to defend criminal charges against an accused person. Counsel submitted that this is a court of equity and refers it to Order 6 Rule 2 of the High Court Rules of the First Schedules. Counsel Tambadou refers this court to paragraph 5 of the supporting affidavit and submitted that the facts are not denied and the punishment prescribed for drug offences does not exceed D50,000 the properties listed under money laundering charges are all located in The Gambia and the Applicant is innocent until proven guilty. Counsel Tambadou urged this court to grant the prayers sought and in the alternative, to make order for reasonable expenses.

In responding to the arguments and submissions of the Applicants' counsel, Lamin Jarju of Counsel for the Respondents relied on the paragraphs of the affidavit in opposition. He argued that the Lawyer Tambadou misconceived section 51(6) of the Anti-Money Laundering Act. It is the submission of Counsel Jarju that Paulo did not disclose the amount of money he was seeking for reasonable expenses for his upkeep. Counsel Jarju submitted that section 51(6) (supra) refers to funds held under investment or business and allows the Applicant to have access to provide feeding, school fees and other expenses. Counsel Jarju submitted that Paulo has no bank account and the cash in foreign currency seized is €69,000 and $5000.00, including CFA; however, the seized money is the subject matter of charges in the bill of indictment. Counsel argued that the medical report contravenes section 45 of the Evidence Act and is inadmissible, and Exhibit PJ4 is invoiced. Counsel Jarju submitted that the affidavit in reply should be struck out as Counsel Jarju is not the deponent and the averments are direct attacks on him. Justice Jaiteh said the import of section 51(1) (6) is that a person who has been investigated and charges filed against him or her is entitled to receive payment out of the money for reasonable living expenses and to defend the criminal charge or any other proceedings against him. He added that a criminal bill of indictment has been filed against Paulo and has engaged Counsel to defend him therefore he is entitled to receive payment from the money seized to defend the criminal charges levelled against him and this is provided under section 51(6) (2) and Counsel has attached an invoice of D250, 000 as legal fees. “This fact is not denied and the court can take judicial notice of the appearance of counsel in the matter.” Follow Everyone @highlight #CourtReporting #factualnews #thenationeye

Ndongo Sillah The Unsung Hero

Ndongo Sillah: A True Activist and Champion for Democracy and Human Rights. The unsung heroes of the Gambian struggle and resistance against the dictatorship of Yahya Jammeh, fighting to restore human rights and democracy without seeking entitlement to positions or jobs. Alagi Yorro Jallow Realizing the inner self is the moment one understands that fear is unnecessary. This wisdom has been imparted by those who have truly known themselves. Mohammed Lamin Sillah, also known as Ndongo, has been actively involved since July 1994. He didn't just join the cause; he led it, battling against oppression and impunity. As a survivor of torture, he stands as a hero for democracy and human rights. Furthermore, even these teachings have been manipulated to instill fear, which, regrettably, leads to suffering. Fear is our greatest adversary, and transcending it represents the ideal state of being. It arises when we refuse to learn and rediscover our purpose on earth as the true children of the supreme God.

Do not believe that a single individual can enslave the world, for imagination cannot be restrained. Tyrants like Hitler, Stalin, or Yahya Jammeh have coerced men into accepting their rule through fear, but once people cease to fear, they cease to be controlled. The moment you are unafraid, you are free. Thus, fear not. This is the narrative of humanity. Our economy thrives on fear: the fear of war, peace, and market instability. Ndongo was an individual without fear, guided by a conscience that adhered to rational principles in harmony with the essence of human dignity. Records exist of vocal critics who opposed dictator Yahya Jammeh's oppressive regime. These individuals paid the ultimate price, paving the way for the democracy that allows today's Gambians to exercise their rights and freedoms. Many now claiming to be champions of democracy and human rights were once allies of the dictator, complicit through their silence or active support. Some sought refuge in self-imposed exile or secured positions with international organizations like the African Union, United Nations Agencies, and the World Bank. They actively worked against the democratic movement to end the dictatorship. Their actions, driven by political and financial gain, are forgotten as they now posture as defenders of democracy and opponents of corrupt rule. For a detailed account of these turncoat heroes, one should refer to "The Last 100 Days of Yahya Jammeh," which exposes the behavior of those who have now positioned themselves as democratic saints under President Adama Barrow's government.

These individuals often act unscrupulously, lying and feigning virtues to curry favor, trading integrity for personal benefit. Their deceit is not overlooked by divine judgment. History and evidence show their lack of commitment to the genuine struggle for democracy and human rights in The Gambia. The true fight for these values ended in 2016; what remains is a mere shadow of the original cause. It is crucial for Gambians to recognize the unsung heroes of democracy and human rights who fought and sacrificed for the nation's second liberation. Among them are those who truly deserve to be honored. For those of us who have worked and collaborated with Ndongo, he is not the type to question, "Where were you?" I can tell you where Ndongo was. He was certainly neither a hypocrite nor an enabler. The fight against Yahya Jammeh was prolonged and difficult, yet Ndongo Sillah was at the forefront. As Yahya Jammeh started to turn on his supporters and henchmen, who had previously mocked Ndongo and his human rights colleagues as "losers and irrelevant," Ndongo humorously remarked, "The revolution is consuming its own children." Ndongo was there from the very beginning. He didn't just join the movement; he led it, battling oppression and impunity. He is a survivor of torture and a champion of democracy. On October 22, 2001, the infamous NIA arrested Muhammed Lamin Sillah, coordinator of the Coalition of Human Rights Defenders and Secretary-General of Amnesty International's domestic chapter, following his interview with the BBC's Focus on Africa program on October 21. Ndongo Sillah informed the BBC that the country's human rights situation was unsatisfactory and required improvement. Without fear, he declared, "There is too much congenital injustice, demonic oppression, ruthless dictatorship, and agonizing poverty in this country today. Until these destructive vices of governance are eradicated from this country, neither continuous imprisonment nor even threats of assassination will deter me from the people's cause." This was the statement of Mohammed Lamin Sillah, Amnesty International, Gambia, on global media when many Gambians were too frightened to criticize or denounce the regime.

In another interview granted to the Independent newspaper on October 30, 2001, he was detained incommunicado after criticizing and denouncing the Jammeh regime's human rights violations to both local and global media. Nevertheless, he was released on bail for $18,000 (300,000 dalasis) after his case was taken to the High Court. for a habeas corpus hearing.The NIA charged Sillah with inciting genocide, causing confusion, and attempting to overthrow the government; however, Sillah refuted these claims as baseless. Ndongo Sillah stood at the vanguard of the Human Rights movement at a time when many Gambians were too fearful to speak up, or chose silence out of self-interest or self-preservation. Ndongo Sillah has wielded the pen to educate, enlighten, and motivate. He has established himself as a paragon of activism, a man deeply knowledgeable about democracy and human rights. He has vividly recalled history for us, sharply connected the dots, bridged the gaps in our collective memory, and led us on journeys of freedom and human emancipation, infusing his work in human rights activism with beauty and elegance. Every Gambian engaged in the democratic struggle admired his writings, where history, philosophy, law, and political science converged to celebrate his esteemed lineage, cultural pride, and sharp intellect. He expressed himself with freedom, ease, and effectiveness.

2 CAF Officers Completed Training In China

The Gambia Armed Forces (GAF) welcomes home Captain John Jatta and Captain Abdoulie Secka who recently returned from an 11-month military training course in the People’s Republic of China. The two officers underwent the Junior Infantry Commanding Officers’ Course at the prestigious Chinese Army Infantry College in Shijiazhuang and the Armoured Elementary (Junior) Command Programme at the Chinese Army Academy of Armoured Forces in Bengbu respectively.

During the period, Captain Jatta learnt the Basic Chinese language in addition to infantry modules such as Small Arms, Military Topography, Arms Techniques and Tactical Employment, Element of Combat readiness, Squad and Team Tactics, Company and Platoon Tactics, amongst others.

On the other hand, Captain Secka, an armoured trained Officer studied Elementary Chinese together with modules such as, Knowledge of Service and Arms, Armoured Forces Commanding Information System, Tank Weapon Development, Tank Communication, driving and firing, Armoured Elementary Tactics amongst others. It might be instructive to state that the two Officers who were rated Qualified in their various areas of study graduated with their heads high. The Gambia Armed Forces High Command congratulates and welcomes them home after such an outstanding performance. This training, in addition to many others, underscores the importance the High Command attaches to the capacity building, welfare and development of its personnel in line with the Security Sector Reforms.

Sergeant Yaya Sanyang Excells At Staff College In Nigeria

Staff Sergeant Sanyang Yaya of the Gambia Armed Forces (GAF) recently returned home from a Drill and Duty course held at Drill and Duties Wing of the Armed Forces Command and Staff College in Nigeria. Staff Sanyang was the first GAF senior Non-Commissioned Officer (NCO) to attend such training at the prestigious military training institution located in Jaji, Kaduna State. The month-long intensive course exposed participants to various aspects of Drill and Duty and other maneuvers that are performed by military personnel on a daily basis. They were taught on Foot Drill, Sword Drill, Cane Drill, Colour Drill, Pace sticking Drill, Rifle Drill, Regimentation and a host of others. It is gratifying to state that the senior NCO, who is an instructor at the GAF Training School excelled in all these subjects in addition to an exercise dubbed exercise “Sanyang” which was named after him. He graduated as a qualified Drill and Duty Instructor.

Drill and Duties is a key module in the military as it instills discipline, regimentation and psychologically develops a sense of teamwork and self-control in the soldier while enhancing performance under stressful conditions. The Gambia Armed Forces (GAF) Command felicitates Staff Sergeant Sanyang Yaya on this milestone achievement and heartily welcomes him home. Kudus Staff Sergeant Sanyang Yaya!!!

Former Guinean Head of State Sentenced To 20 Years In Prison

Guinea's former military ruler Moussa "Dadis" Camara fled into exile after he survived an assassination attempt several months after the 2009 massacre. / Photo: AA A Guinea court on Wednesday sentenced former junta leader Moussa "Dadis" Camara to 20 years in prison after finding him guilty of crimes against humanity in the 2009 stadium massacre by the military that killed at least 157 people and left dozens of women raped. Guinea's Criminal Court convicted Camara and seven other high-ranking officials on Wednesday after a prolonged trial on charges of murder, kidnapping and rape that were reclassified as "crimes against humanity". Four other accused were acquitted. More than 100 survivors and victims' relatives testified in the trial that started in November 2022, more than a decade after the massacre and under pressure from families and activists demanding justice. 'Uncontrolled' elements

The demonstrators at the stadium in September 2009 were protesting Camara's plans to run for president when soldiers opened fire on them and raped dozens of women. The then-military leader had staged a coup the previous year. The junta at the time said "uncontrolled" elements of the army carried out the rapes and killings. But Camara's top aides were at the stadium and did nothing to stop the massacre, a Human Rights Watch report said. Many of those killed at the stadium protest were shot, crushed or knifed to death while some of the women were dragged out from hiding and gang-raped by uniformed men over several days, witnesses said. Many could not flee the gunfire after Camara's presidential guard surrounded the stadium and blocked the exits, survivors said. 'Asleep' It took several days before the families of the victims were allowed to come and collect the bodies, they said during the trial. Many, though, never found the bodies of their relatives. Camara fled into exile after he survived an assassination attempt several months after the massacre but returned to Guinea more than a decade later. "If I'm here before you it's because of my patriotism, otherwise I would not have agreed to come," he said on his first day in court to face trial in 2022, adding that he was asleep as the massacre unfolded. While in jail late last year, Camara was released by gunmen who stormed the country's main prison but was back in custody hours later as his lawyer said he had been kidnapped. TRT AFRiKA