Ousainou Darboe, the jailed leader of the United Democratic Party (UDP) and 18
others, were yesterday granted bail by The Gambia Court of Appeal presided over
by Justice A.O. Adegoke, Justice Awa Bah and Justice Edrissa Mb’ai.
The appellants were Ousainou Darboe, Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Yaya Bah, Babucarr Camara, Fakebba Colley, Ismaila Ceesay, Momodou Fatty, Dodou Ceesay, Samba Kinteh, Momodou Manneh, Nfamara Kuyateh, Lamin Njie, Yaya Jammeh, Momodou L.K. Sanneh, Massanneh Lalo Jawla, Fanta Darboe and Junkuna Suso.
It would be recalled that they were jailed for three years last July by the High Court in Banjul, after they were convicted for unlawful assembly, holding a procession without a permit, conspiracy, riot, among others.
The matter was adjourned by the court, for proof of service and ordering of briefs.
When the matter came up yesterday, defence lawyer Antouman A.B. Gaye, who led the team of appellants, announced the members as A.N.D Bensouda, H.S. Sabally, S.M. Tambadou, Omar M.N. Njie, R.Y. Mendy, Neneh M.C. Cham, Musa Batchilly, Abdoulie Sisoho, Lamin S. Camara, Combeh Gaye, Anna Njie and Yassin Senghore.
He informed the court that it was conspicuous that there was no one representing the state at the court, and he then urged the court to stand down the matter for about 15 minutes to enable the court call the representatives of the state.
Presiding judge Justice A.O. Adegoke said in the interest of justice it was important to hear from the state, adding that it was unusual that the state was not in court.
Soon after, DPP S.H. Barkum appeared for the state along with principal state counsel Amichi Adeyemi, Antony Mendy and K. Mbaye.
The DPP apologised to the court, stating that the state’s absence was not by design, but due to reasons beyond their control.
Lawyer Gaye then said the court had earlier made an order consolidating all the appellants appeal, and the matter was adjourned for Monday 5 December for proof of service and ordering of briefs.
He further informed the court that the DPP had been served with the records.
Lawyer Gaye said the issue regarding the matter of ordering of briefs should be put aside, adding that the appellants have an application to make, and that the appellants counsel has spoken to the DPP over the weekend about the application.
Lawyer Gaye added that the court should take judicial notice, that over the last few days, there have been significant changes of circumstances in the country that has affected the appellants.
The fact is that on 1 December 2016 there was change of government in the country, and the 1st applicant/appellant is the Secretary General of one of the parties that form the coalition, he told the court.
“My lord, I am not speaking on my own, but on instructions, and I wish to make an oral application for our clients to be admitted to bail pending the determination of the appeal, and there should not be any condition attached but on self-recognizance.”
He cited section 12 of the Gambia Court of Appeal Act, noting that the said section allows the court to grant bail to appellants, and further referred the court to section 7 of the Constitution, which lays down what constitutes the common law and principle of equity.
He submitted that now is the time to talk about the formal application, referring the court to the offences alleged to have been committed by the applicants/appellants as bailable.
Lawyer Gaye said it has been 8 months since they were sentenced to imprisonment, adding that there was no time to file any written application comprising of affidavits and other things and waiting for the state to also file their briefs.
“We cannot bury our head in the sand, because this matter is a special circumstance.”
Lawyer Gaye then told the court that when he looked at the panel of judges, he saw the bold spirit in them and not the timorous type, and proceeded to call on lawyer A.N.D. Bensouda to make a formal application for bail on behalf of the 19 applicants/appellants.
DPP S.H. Barkum in response told the court that he does have much to say, but that he received a call from lawyer Bensouda over the weekend, at about 12.47 pm, informing him of their intention to bring an oral application before the court, seeking bail for the applicants.
“I responded by saying that the practice in the court of appeal is always to entertain bail application formally.
“My position is that the bail application should be made formally, as has always been the practice of the court; but if the court is compelled by the applicants that it is a matter of prevailing special circumstances, I would leave it to the discretion of the court.”
The court subsequently ruled that the applicants/appellants counsel make their application.
Lawyer A.N.D. Bensouda submitted that the 19 applicants appeared before the court having being convicted by the High Court on various offences, in particular offences under the public order Act, citing section 5 of the public order Act.
She further submitted that granting bail to the appellants pending the determination of the appeal is a matter that the court has not hesitated to do, when the interest of justice requires.
She drew the court’s attention to some recent cases decided by the court of appeal, in which the court exercised its jurisdiction to grant bail pending appeal.
She cited the case of Lamin Waa Juwara and the state, a miscellaneous application no: 3 of 2004 in which Justice S.B. Janneh granted bail pending appeal based on the fundamental principle, the judge underscored, that special circumstances exist in the bail application.
Lawyer Bensouda also cited the case of Nyima Dibba and the state, a criminal appeal of 2013, where the case was presided over by Justice E.O. Fagbenle, the present Chief Justice of The Gambia.
She informed the court that the record of the appeal showed that the appellants were convicted on 20 July 2016 and, prior to this conviction, they have been in custody since April 2016.
Lawyer Bensouda submitted that special circumstances exist, and that the record showed that all the applicants were tried and convicted as members of the UDP, and that the coalition is sure to form a government which would comprise of various political parties in the country.
She pointed out that the appellants are the leading members of the United Democratic Party (UDP), adding that section 68 of the constitution provides that the swearing in of the incoming president as published in the gazette should be done by 18 January 2017.
She further pointed out that the transition process is a short one, and the leadership of UDP has a crucial role to play in the process, and the stakeholders in the process would not be able to do so unless the court granted the applicants bail.
Lawyer Bensouda added that the record showed that 11 out of the 19 applicants are executive members of the UDP, including Ousainou Darboe, who is the Secretary General of the party.
She submitted that the court could not be oblivious to the momentous decision of the Gambian people, neither could it ignore the possible reactions of the people who by voting in the coalition government have manifested their desire.
Bensouda craved the court’s indulgence to take judicial notice of the 1st applicant, Ousainou Darboe, who has practised in the very court, and to recognize him as an individual and a vibrant practitioner who deserved humble consideration.
She finally urged the court to exercise its discretion, under section 12 of the Gambia Court of Appeal Act, to grant the applicants bail pending the hearing of the appeal.
In her ruling, Justice A.O. Adegoke granted bail to the appellants/applicants, noting that they should deposit their international passport with the court’s registrar and, for those without a passport, should deposit their ID cards with the court registrar.
The court further ruled that Ousainou Darboe is allowed to go on bail on self-recognizance.
The matter was then adjourned until 8 December 2016 for the court to give reasons for taking such decision.