May 19, 2009, 7:56 AM
Njie, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh,Fanta Mballow, Karim
Touray, Yankuba Darboe and Mactarr Ceesay were on 29 January, 2020, arraigned
before Magistrate P. Sarr of the Kanifing Magistrates’ Court and charged on
three counts of unlawful assembly, rioting after proclamation and rioters
demolishing structures. She ordered they
be remanded at Mile 2 Prisons.
Prosecutors alleged that the accused persons on 26 January, 2020, at Sting Corner and diverse places around Old Jeshwang, in the Kanifing Municipality of the Republic of The Gambia, after expiration of the proclamation made by deputy superintendent of police, Alagie Jallow, in the name of the president of the republic to disperse peacefully, disregarded such a proclamation and continued to be so assembled riotously.
It was also alleged that they jointly and unlawfully took part in an unlawful assembly. The accused, according to the indictment, being riotously assembled together, unlawfully destroyed The Gambia Technical Training Institute students’ waiting shed by setting it on fire.
The lead prosecutor, M. D. Mballow, told the court that they came under Section 5 of the CPC to have the case mentioned and transferred to the High Court. He submitted that Section 5 of the CPC deals with jurisdiction and it has a provision.
He stated that in 2009, Chief Justice Savage, in exercise of his powers under Section 5 of the CPC, established a Special Criminal Division. He then read Legal Notice No. 3 to the court. He argued that Legal Notice No. 3 sets the jurisdiction of the court to hear the case. He further submitted that count three is a capital offence. He therefore applied to the court to transfer the case to the Special Criminal Division. At this juncture, he referred to Section 2 (a) and Section 99 of the CPC to support his argument.
“The court cannot try count three and therefore cannot grant bail to the accused persons. I am applying for the court to remand the accused persons, pending the hearing of the case at the Special Criminal Division,” he told the court.
Defence Counsel Camara, in his deliberation, stated that since the court does not have the jurisdiction to hear the case and questioned why they brought the accused persons to court. He noted that the court has jurisdiction to hear the case, adding that the court has all powers under Section 5 (2) to hear the case. He then referred to Section 27 of the Criminal Procedure to support his argument.
“The law that states that the court does not have the jurisdiction to hear the case is not an act of parliament. The law created a division but it does not take the jurisdiction of the court. It is practice direction,” he argued.
He submitted further that capital offences are offences punishable by death and the accused were not charged with capital offences. He said he disagreed with the prosecutor that the court does not have the jurisdiction to hear the case.
He adduced that the court has the jurisdiction to grant the accused persons bail, noting that counts one and two are bailable offences. He told the court that under Section 76 of the Criminal Code, count three is bailable. He cited Section 99 of the CPC to support his argument. “If you have to transfer, you should have the discretion to do so. Jurisdictions of court are guided jealously. We submit that the court has jurisdiction to try the case and grant bail,” he submitted.
Prosecutor Mballow, on points of law, said that the defence asked why they were in court if the court does not have the jurisdiction to hear the case. “It is lawful to arraign the accused persons within 72 hours, and this is why we are in court,” he replied. At this juncture, he cited Section 7 of the 1997 Constitution and Legal Notice No. 3 to convince the court. He stated that the submission by the defence that the court could grant bail was wrong.
“The court does not have the jurisdiction to try count three, and I apply for the case to be transferred to the Special Criminal Division,” Prosecutor Mballow concluded.
In her ruling, the presiding magistrate concurred with Prosecutor Mballow and transferred the case to the Special Criminal Division and ordered that the accused persons be remanded at Mile 2 Central Prisons.