Hearing of the case involving former IGP Ensa Badjie, Lt. Col Mam Matarr Secka and Major Kuluteh Manneh, did not proceed as scheduled yesterday, because the state witness, Sillaba Samateh, was not in court.
The absence of Sillaba Samateh, who is the first prosecution witness in the trial, was announced by the Director of Public Prosecutions, Richard Chenge.
Sillaba Samateh was to continue his testimony under cross-examination by the defence counsel representing the accused persons, before Justice Emmanuel at the high court in Banjul.
DPP Chenge consequently applied for an adjournment on the grounds that his witness was not in court.
He told the court that if at the next adjournment date the witness is not in court, the prosecution would call another witness.
He further told the court that he was going to contact the NIA to know why the witness was not brought to court.
Lawyer Borry Touray, defending ex-IGP Badjie and Mam Matar Secka, in response told the court that he was not objecting to the prosecution's application for an adjournment.
However, Lawyer L.K. Mboge representing the 3rd accused person, Major Kuluteh Manneh, told the court that he was objecting to the DPP's application for an adjournment.
It was unfair on the part of the accused persons, he said, noting that the matter had once proceeded in the absence of the defence counsel.
He said in the absence of the defence counsel, it was deemed in the interest of justice that the court proceeded with the hearing, so as to expedite the proceedings.
Lawyer L.K. Mboge also told the court that he had a bail application before the court, which was stood down by the court to proceed with the matter.
"There is evidence before the court that the witness was in custody of the NIA to prevent him been harm from the public," defence counsel LK Mboge further stated.
The DPP replied that the prosecution at no time said this witness was in custody. All what was stated in the affidavit was that some of the witnesses are in custody, the DPP added.
Lawyer LK Mboge further stated that the state was hiding something that they do not want to come out. He told the court that the prosecution did not say why the witness was not in court.
It was prejudicial to the accused persons who are in custody, he said, adding that the evidence of PW1 be expunged, and the prosecution calls another witness.
However, when challenged by the court, defence counsel LK Mboge later withdrew the two grounds of his objection namely, that the case proceeded in the absence of the defence counsel, and that the court stood down his bail application so as to expedite the proceedings.
Meanwhile, lawyer Mboge told the court that he has made an application for bail, dated 12th May 2010, which was seeking bail for the 3rd accused, Major Kuluteh Manneh, pending the hearing and determination of the case.
He submitted that the application is supported by a 14-paragraph affidavit sworn to by the third accused appellant, and that he was relying on all the paragraphs in the affidavit.
"The law as regards bail in The Gambia is contained in section 99 sub-section (1) of the Criminal Procedure Code. It is my submission that only offences that are punishable by death or life imprisonment are not bailable in this jurisdiction,” he further stated. All the charges before the court are bailable offences, he added.
Defence counsel Mboge told the court that the 3rd accused person is ready to provide reliable Gambian sureties if granted bail by the court, and would not jump bail, as stated in paragraph 9 of the affidavit.
"The investigation into this case has been completed and as such he cannot interfere with the prosecution witnesses, if granted bail," he further told the court.
"It's my submission that all the counts against the 3rd accused are mere allegations which are not yet proven before this court," he added.
He cited section 24 sub section (3) of the 1997 Constitution of The Gambia to further strengthen his submission. Under this section, it is clear that accused person is innocent until proven guilty, he added.
The lawyer told the court that granting bail to the 3rd accused person is a fundamental right guaranteed in the Constitution of The Gambia.
He urged the court to uphold the fundamental rights of the 3rd accused person by granting him bail, and further referred the court to relevant legal authorities. The United Nations International Declaration on Human Rights to which the Gambia is a signatory and party should be respected, Mboge said.
"The 3rd accused owns a landed property and has a family of three wives and seven children and other dependents, who are entirely depending on him for their daily survival," counsel further noted.
He submitted that the affidavit in opposition filed by the state disclosed that the accused persons are powerful people, and if granted bail could commit similar offences.
Mboge said if they are powerful they would not have been in custody at the maximum-security wing of Mile 2 prison. He noted that the law is more powerful than the accused persons.
The lawyer further submitted that the 3rd accused person has no criminal record, and that this was his first time standing trial in this country.
Noting that the affidavit in opposition filed by state said that the accused if granted bail could easily tamper with prosecution witnesses, he said one who is powerless could not tamper with the witnesses.
Responding to lawyer Mboge's submission, DPP Chenge said the charges against the accused are very serious, as they are felonies.
He said that the 1st witness (PW1) has commenced testimony with shocking revelations of what was going on in what he calls "the kingdom".
DPP Chenge submitted that if the accused persons are granted bail, they are likely to interfere with the witnesses, and can also "fly away”.
DPP finally urged the court to dismiss the defence counsel's bail application.
The case was then adjourned 22 June 2010 at to 1pm for ruling and continuation of hearing.
