Court grants bail to suspects accused of publishing obscenity

Tuesday, September 05, 2017

Magistrate Omar Jabang of the Brusubi Magistrates’ Court on 30 August 2017 granted bail to Momodou Basiru Saidykhan, Sarjo Sighateh and Alagie Kujabi of three hundred thousand dalasis each with three Gambian sureties each who must swear to an affidavit of means.

The sureties must deposit their valid National Identity Cards with the Registrar of the court and they (the accused persons) must also surrender all their travelling documents to the registrar of the court.

It would be recalled that the accused persons are standing trial on two counts of libel and assault causing actual bodily harm.

The 1st accused pleaded not guilty to all the charges and the 2nd and 3rd accused persons pleaded not guilty to the charge of libel but pleaded guilty to the assault charge.

The prosecution team led by Inspector E. Sarr applied for an adjournment in order to furnish the court with the brief facts on the charge of assault.

 He further intimated to the court that he was objecting to bail of the accused persons on the ground that the police are undergoing intense and serious investigation over the matter.

Inspector Sarr argued that if the accused persons are granted bail, they would interfere with the investigations of the police.

He said it would be in the best interest of justice that the accused persons be remanded so that the investigations are not tampered with, adding that if the accused persons are granted bail, they would abscond.

In his response, L.K. Mboge, counsel for the accused persons told the court that the prosecution in their submission admitted that the offences alleged to have been committed by the accused are bailable.

Mboge argued that the offences are misdemeanours and that bail is a fundamental right and he referred to section 19(1) of the constitution.

He further argued that the right to liberty is a right to bail and that the grounds and procedures for the grant or refusal of bail are laid down by the Criminal Procedure Code.

He submitted that it was only offences committed that are punishable with death and life imprisonment which are not bailable under section 99 of the CPC.

Mboge said even though bail is at the discretion of the court, same must be exercise in favour of the accused persons if certain conditions are fulfilled.

He submitted that the prosecution’s argument that the accused persons would abscond when granted bail is not supported by either fact or law.

He posited that it was strange for the prosecution to act as good Samaritans at the station and then ask the court to refuse bail to the accused persons, noting that the position of the prosecution was contradictory.

Mboge told the court that the accused persons have reliable sureties who are willing to stand for them should they be granted bail.

He contended that the accused persons are not on holding charges which implied that investigations are completed and urged the court to grant bail to the accused persons.

Presiding magistrate Omar Jabang pointed out that the sole issue for determination was whether the accused persons could be admitted to bail.

He read section 19 (1) of the Constitution, Section 99 (1) of the Criminal Procedure Code and noted that it was clear from the language of Section 19 of the Constitution that the right to liberty is not unbridled.

He said as far as section 99 of the CPC is concerned, once an offence was not a capital offence, the court may grant bail but it must be appreciated that courts of law through case laws have developed certain conditions which judicial officials must consider when considering whether or not to grant bail.

He said these conditions include among other things, whether the accused persons would appear to answer to the charge against him or her; whether there was any likelihood of the accused committing another offence; whether there is the possibility of the accused interfering with the investigations of the police, and whether the accused persons would be at risk if he or she was granted bail.

Magistrate Jabang pointed out that even if the offence charged was a bailable one, any of the above facts may influence the court to refuse bail.

He said the sole grounds relied on by the prosecution was that the accused persons would interfere with the intense and serious investigation of the police if they are granted bail.

He further said this could be a very genuine reason for the court to refuse the accused persons bail but the question which cries for answer was how the accused persons would interfere with the investigations of the police.

What steps if any have they taken as a means of interfering with the investigations of the police? What connection or influence has the accused persons to interfere with the police investigations? He questioned.

The trial magistrate indicated that it takes more than mere words to state that the accused persons would interfere with the investigations of the police without furnishing the court facts and or evidence in support.

Magistrate Jabang further disclosed that he agreed with the counsel for the accused persons that the reasons why the accused persons have been arraigned before the court on substantive charge suggest that investigations have been completed.

He noted that it must be appreciated that the 1st accused was under police bail.

“If the 1st accused was on police bail, why then is the police asking the court to deny him bail? I don’t see the sense in it and I will not be tempted as a stubborn fish to risk for that bait,” he remarked.

The trial magistrate revealed that there was no absolute justification in allowing the continued detention of the accused persons, adding that it was arguable that refusal or delay by any judge or magistrate to bail any person entitled to bail is at common law an offence against the liberty of that person.

He said the court was the last beacon of hope for the society and that he was in agreement with the presumption of innocence of an accused person by section 24 of the 1997 Constitution.

Presiding Magistrate Omar Jabang in exercise of his discretionary powers and pursuant to section 19(1) of the Constitution of The Gambia and section 99(1) of the Criminal Procedure Code accordingly granted the accused persons bail on the terms and conditions                

Author: Bruce Asemota