Magistrate faults charge as abuse of court process

Wednesday, August 21, 2019

Magistrate Sillah of the Kanifing Magistrates’ Court recently struck out the case filed by the prosecution against Alagie Darboe, who was charged with personating as State Intelligence Service employee at the TRRC. He stated that the charge was an abuse of court process. The accused was represented by Lawyer B.A.M.O. Badjie while the Inspector General of Police was represented by Prosecutor 2717 Jallow.

In his ruling, Magistrate Sillah told the court that the ruling was premised on an application for the matter to be dismissed on the grounds that the charge could not hold because the name of the government institution on the charge does not exist.

He adduced that the defence counsel relied his submission on Section 191 of the 1997 Constitution that the name State Intelligence Service is still regarded as the National Intelligence Agency pursuant to the statute of creation which created the NIA.  He further noted that the defence counsel submitted that the said provision is governed by decree No. 45 and nowhere in those laws is the State Intelligence Service mentioned.

Magistrate Sillah told the court that the defence counsel posited that these laws are yet to be amended by the National Assembly to give the name SIS in lieu of NIA. He said that the defence counsel urged the court to strike the matter out for want of jurisdiction as the charge was not properly constituted.

He stated that the defence counsel further said that the charge was dubious, as it brought an offence unknown to the laws, and that the charge was an abuse of the doctrine of separation of powers. He said that on the other hand, the prosecution replied on points of law that the charge was properly constituted, as the SIS is still playing the role of the NIA.

“It must be known that the current trend in judicial adjudication is geared toward substantial justice. Current democracy dictates that laws must be well respected.  Section 3 (1) of the Criminal Procedure Code states that all offences that shall be enquired must be in accordance with laws of The Gambia,” he told the court.

He went on to say that it must be noted that there is no punishment without law, stating that the court had taken judicial notice that the NIA is now termed as the SIS. However, he went on, such acronym is just a verbal utterance from the executive, and thus, it must be reduced into legislation just as the way the NIA Act was promulgated. He said that courts have been warned to be positive towards their deliberations, adding that his court is not only a court of law but also a court of justice.

“The court shall urge the prosecution to revisit the acronym used on the charge sheet. The NIA on paper is still NIA pursuant to Section 191 of the 1997 Constitution. The name SIS is nowhere found in our laws. It is for this reason that the court will dismiss the charges and advise the prosecutor to come properly” he said.

He further adduced that the accused was discharged pending the regularisation of the prosecution process. “Whereas the name SIS is non-existent in our laws, it is not found within the statutes creating government bodies,” he concluded.

Author: Dawda Faye