Attempted rape suspect discharged for lack of diligent prosecution

Friday, July 15, 2016

Magistrate Hilary Abeke of the Kanifing Magistrates’ Court Wednesday discharged one Momodou Lamin Badjie, who was accused of attempted rape, for lack of diligent prosecution in the case.

When the case was called, state counsel Lamin Jarju informed the court that they have no witness to call.

Tried to call their witness, but his phone was not working, he said, adding that the matter was very complicated.

The prosecution was in dilemma because the witnesses were unwilling to come to court, and that warranted the prosecution to apply for a subpoena which was granted and served on the witness.

Upon the witness receiving the summons, he went to the Attorney General’s Chambers with a letter requesting for a withdrawal of the case.

The AG’s Chambers admitted the letter to the DPP requesting for the facts of the case, which was done.

They were still waiting for the reply from the AG’s chambers on whether to proceed or withdraw the case, he further told the court.

On the other hand, he continued, the witness was not willing to come to court, saying that he is an imam and his family is fully involved in the Muslim faith and could not come to court.

“We would have to call another witness who is a medical doctor, but with the medical report I have in court, I did not even know the hospital it came from.”

On that note, he added, he would ask for a further adjournment, and he apologised to the court and the accused person, because several adjournments had been granted at the instance of the prosecution.

In his ruling, Magistrate Abeke told the court that he had listened to the state counsel about the history of the case; that the accused was charged with the offence of attempted rape, and the case was brought before the court since 5 November 2015.

He said the prosecution called their first witness, a police officer, who testified and concluded the same day.

He said on the same day, the prosecution applied for a subpoena, to be served on one Ebrima Jobe of Manjai Kunda to come and testify in the case.

On 23 December 2015, there was no appearance by the state, and the case was adjourned until 21 January 2016.

On 21 January 2016, the state counsel Jarju was present in court, and asked for an adjournment to call a witness who could not make it to the court.

Magistrate Abeke added that on 8 February 2016, there was no appearance for the state and the case was adjourned at the instance of the prosecution.

On 25 February 2016, the state counsel appeared and the accused was absent, and the case was adjourned.

He said on 9 March 2016, the case did not proceed.

On 31 May 2016, L. Jarju, A. Mendy and S.K. Jobe appeared for the state, and the facts were that the case was just coming before him for the first time, and the case was adjourned.

On 14 June 2016, L. Jarju, A. Sambou and S.K. Jobe appeared and asked for an adjournment, the reason being that their witness was not in court.

On 12 July 2016, A. Mendy and S.K. Jobe were in court for the state, asking for an adjournment, stating that they had constraints to get their witness to come to court to testify, and the court granted them the last chance and adjourned the case.

Meanwhile, he had called the attention of the parties on the need to a fair hearing within a reasonable time.

The accused person was not under any duty to prove a case against himself or prove his innocence.

Relying on the submission and application made by the state counsel, the court was convinced that the state was no longer interested in prosecuting the case.

The case had stalled for seven months without proceeding, and the accused could not be held to ransom, the magistrate declared.

Accordingly, he said, the case was struck out for lack of diligent prosecution, and the accused was discharged.

Author: Isatou Senghore-Njie