By Bruce Asemota ;
Amadou Sanneh, a former minister of the Coalition government who was pardoned by President Barrow after being convicted in 2013, will have to continue to fight for the total erosion of his conviction by the courts.
Mr Sanneh had filed an appeal seeking the Supreme court to erase it even though it was earlier determined that his appeal be thrown out since he was already pardoned by the President. However a panel of five judges headed by Chief Justice Hassan B. Jallow of the Supreme court has declared that Presidential pardon does not erase criminal conviction and therefore it will go ahead to entertain the appeal filed by Hon Amadou Sanneh.
Addressing the court, Supreme court judge Justice Sey revealed that on 5th December 2018, when the appeal came up for mention before the Supreme Court, State counsel M. Abubakar had applied for the appeal to be struck out on the basis that the appellant had been granted a pardon.
However, Ms. Mendy, counsel for the appellant, contended that the appellant wanted to proceed with the hearing of his appeal because the said pardon does not wipe away his conviction.
Justice Sey further revealed that the Supreme Court invited the parties to address the court on the sole issue as to whether the grant of a pardon to the appellant wipes away the fact of the conviction.
Justice Sey also indicated that the main thrust of the argument advanced by Ms. Mendy, counsel for the appellant, is that the Constitution does not give the President the prerogative of justice, but only a prerogative of mercy which cannot remove a conviction but only pardons its effect whilst State Counsel Abubacarr submitted that it is only the Court of Appeal and the Supreme Court which have the statutory power to quash the conviction.
Furthermore, Ms. Mendy submitted that the case of Olu Falae v Obasanjo (N0.2), relied upon by the respondent, can be distinguished from this case because the issue in that case was whether or not the pardon removes the civil liberties of a convicted person as to disqualify him from contesting for the Presidential elections.
Justice Sey noted that it was timely to look at the provisions of Sections 82 (1) of the Constitution which she read and explained that the words of the pardon are instructive in themselves and that the Proclamation that the prerogative of mercy is a form of pardon that can be exercised by the President as one of the powers defined by section 82 (1) of the Constitution adding that Amadou Sanneh was granted a pardon without any conditions.
Justice Sey cited a plethora of cases and various decisions and explained that the effect of the pardon is prospective and not retrospective.
She further explained that it does not change the past and cannot annihilate the established fact that the Appellant was convicted of the offence.
The Supreme Court judge stated that for all intents and purposes, the fact of the conviction remains untouched and the criminal record is not erased.
She pointed out that the Apex Court agreed with the submissions of Ms. Mendy that the1997 Constitution does not give the President the prerogative of justice, but only a prerogative of mercy which, cannot remove a conviction, but, only pardons its effect.
Justice Mam M. Y. Sey noted that by virtue of Section 120 of the 1997 Constitution “the judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred on them by law”.
Justice Sey further noted that only the Courts with appellate jurisdictions have the statutory power to quash a conviction adding that a pardon is not a substitute for judicial reversal of the Appellant’s conviction but an act of forgiveness and nothing more.
The Supreme Court consequently held that Amadou Sanneh’s Criminal Appeal No.SC 007/2015 filed on the 27th day of August, 2015, against his conviction, is properly filed before the Supreme Court and it would proceed to hear the said appeal on the merits.
By Bruce Asemota