The High Court Dismissed KMC’s Application to Stay “suspend” the Commission of Inquiry.

Tuesday, the 25^th January at the supreme court, Justice Basiru V.P. Mahoney dismissed the Kanifing Municipal Council’s (KMC) application seeking to stop the proposed Commission of Inquiry by the minister of local Government to investigate allegations of corruption and malpractice at the KMC and for connected matters.

KMC, in its application to stop the proceedings of the Commission, stated that it received a letter from the Minister of Lands in January 2022 informing it that the Ministry had established the Commission acting pursuant to the power under section 151 (1) (a) of the Local Government Act and that the Council believes that the setting up of the Commission is in excess of the powers contained in the said section hence the application for Certiorari to quash the establishment of the Commission.

KMC alleged that the Commission has not been established under due process of law. The lawyer for the Council submitted that the Council will be prejudiced if it will have to participate in proceedings that it is challenging the legitimacy of the Commission.

The Lawyer of the respondent Binga D. on the other hand, in their affidavit in-opposition presented that the Minister acted within the powers conferred on him by section 151 subsection 2 paragraph (a) of the Local Government Act. They ( the respondent) submitted that the application for a stay of proceedings of the Commission is a mere attempt to delay the proceedings of the Commission and submitted that the application is a squash a decision of a judicial body. He further said that the application for stay does not apply in certiorari cases.

Binga furthered submitted that there is a presumption that the establishment of the Commission was done in line with the law unless proved otherwise as held in the case of Ya Kumba Jaiteh versus the Clerk of the National Assembly on the subject of presumption of regularity of official acts.

The court held that the Minister exercised his powers under the Local Government Act, rightly or wrongly, and is presumed to be regular until determined otherwise in the main suit.

“Going by the Supreme Court decisions in Ya Kumba Jaiteh versus The Clerk of the National Assembly and Gambia Participates versus the Clerk of the National Assembly, no court can restrain the performance of the power exercised by the State,” Justice Mahoney said.

He said in this case KMC wants to restrain the performance of the official act of the Minister, which cannot be granted. He added that the court is bound by the Supreme Court decisions mentioned above.

“This court is bound by the decision of the Supreme Court and as the facts in the instant matter fall within the presumption of regularity of official acts for which the law prohibits the granting of an injunction to prevent the act being performed, the application for a stay of proceedings of the Commission of Inquiry pending the determination of the main suit cannot be granted and is dismissed,” the Judge ruled.

The court urged both parties to file their arguments in the main suit latest Friday and the court will preside over it on Monday, 31st January.

Source : Kexx Sanneh