Ebrima Jaiteh of High Court in Banjul recently dismissed an application filed
on behalf of one Kalilu Bojang seeking a cedlaration that his arrest and
detention for over 9 years was unlawful and violation of his constitutionally
guaranteed rights and freedoms, an order mandating the State to pay to him
general damages for unlawful detention.
Justice Jaiteh’s decision was premised on an application filed before the court.
Justice Jaiteh in delivering his ruling stated that the application brought has two fold issues for determination; whether the arrest and continued detention of the Applicant is in violation of his constitutionally guaranteed rights and freedom? And whether the Applicant is entitled to general damages for unlawful detention?
Justice Jaiteh referred to chapter four Section 17 (1) of the 1997 Constitution and stated that the High Court is mandated under the Supreme law of the land to enforce the fundamental rights and freedoms of all natural and legal persons in The Gambia.
He said the Applicant’s Affidavit in support disclosed that the Applicant was remanded in prison custody on the 27th day of October 2009 and a copy of the remand warrant signed by the principal Magistrate of Kanifing Court also disclosed that the Applicant is charged with murder contrary to Section 187 of the Criminal Code of The Gambia, Volume 3, laws of The Gambia 1990.
Justice Jaiteh revealed that since the Applicant was charged with the offence of murder, his arrest and subsequent detention in prison custody by a committal warrant signed by the Principal Magistrate Ikpala (as he then was) was lawful and not arbitrary.
He said murder is not a bailable offence in The Gambia, the question that needs an answer is why was the Applicant not arraigned on a bill of indictment at the High Court within a reasonable time as enshrined in Section 19(5) of the 1997 Constitution?
He disclosed that after perusing the documents before the court he was of the view that Mile Two is not a suitable accommodation for the Applicant who is mentally incapacitated.
He said it is therefore in evidence that the Applicant used to live in the streets as he had no memory of his past and his family could not be located for whatever reason best known to the Applicant’s family.
He noted that he was convinced that the Applicant’s arrest and continued detention was not violated by the State.
With regard to whether the Applicant is entitled to general damages for unlawful detention, the trial judge pointed out that since it has been resolved that he was not unlawfully detained, it would be worthless and will amount to an academic exercise in futility if he tries to venture into the issue as to whether the Applicant was unlawfully detained.
He explained that the Applicant’s arrest was lawful and he was therefore not entitled to any compensation.
Justice Ebrima Jaiteh disclosed that having perused the totality of the facts deposed to in the Affidavits in support and in opposition and the supporting documents attached, he is of the conviction that there was sufficient evidence that the Applicant is of unsound mind and consequently incapable of standing trial at this material time.
The trial judge said he observed the demeanor of the Applicant whilst in the dock and he does not look healthy and he was persuaded by the evidence presented that the Applicant is mentally unstable and therefore urgently needs continues medical attention and supervision.
He further said the Applicant’s counsel indicated to the Court that the Applicant’s family are in court and are ready to stand as sureties for his conditional appearance before any court where any charge(s) preferred against him will be heard.
The Respondent’s counsel on the other hand submitted that in consideration of the health and psychological status of the Applicant, it would be in the best interest of the parties that the Applicant be released into the hands of persons who will properly take care of him so as to ensure his continues supervision and monitoring in order to avoid a repetition of what happened 9 years ago.
He therefore dismissed the application and ordered that the Applicant, Kalilu Bojang be admitted to bail on condition that he provides a surety who shall depose to an affidavit of means to provide him with food, shelter, clothing and medication from Polyclinic in Banjul on regular basis;
That the said surety shall be able to produce the Applicant when is needed by the court to stand trial;
That the said surety shall deposit his or her identity Card with the Principal Registrar of the High Court;
In the alternative, the Applicant be removed from remand at Mile Two Central Prison and be admitted at Tanka – Tanka Psychiatric hospital for continues medical treatment and monitoring until he is certified as capable of making his defence or by further orders of the said Court.
That the above orders shall deemed quashed and the Applicant be discharged if the prosecution fails to file formal charges against the Applicant within 30 days.