Mar 13, 2017, 11:13 AM
Kumba Sillah-Camara of the High Court in Banjul yesterday declared that lawyer
Antouman A.B. Gaye, Rachael Mendy, Lamin S. Camara, Combeh Gaye, Yassin
Senghore are fit and proper to represent the state as prosecutors in the
criminal trial involving the state against nine accused persons allegedly
involved in the murder of Solo Sandeng, a UDP activist.
Justice Kumba Sillah-Camara made this declaration whilst delivering ruling on the objection raised by the 1st accused counsel, C.E. Mene that the above mentioned private practitioners do cease to act as prosecutors for the state in this matter.
It would be recalled that the nine accused persons: Yankuba Badjie, Louis Richards Leese Gomez, Babucarr Sallah, Yusupha Jammeh, Haruna Susso, Tamba Mansaray, Lamin Darboe and Lamin Lang Sanyang are charged with multiple offences of conspiracy to commit murder, murder, assault causing bodily harm, making false document without authority amongst others.
The state represented by the DDPP, M.B. Abubacarr of the Attorney General’s Chambers started the trial and called two witnesses and were cross examined by the defence team.
The Attorney General and Minister of Justice appointed six private practitioners as public prosecutors in the matter, the 1st accused counsel took objection to their representation and filed summons on notice dated the 31st May, 2017.
The legal wrangling which took over three months was finally laid to rest when the presiding judge ruled that the application filed by the 1st accused is frivolous, vexatious and an abuse of the process of the court.
The trial judge disclosed that the respondents in opposing the 1st accused application filed a 43 paragraph affidavit on the 5th June, 2017, the applicant filed a 16 paragraph affidavit in reply on the 7th June, 2017, and the respondent filed an 8 paragraph additional affidavit in opposition filed on the 12th June, 2017.
She further disclosed that the main issue for determination is whether the 1st accused application has merit?
Justice K.S. Camara said that section 65(1) of the CPC stated that the Attorney General may by writing under his or her hand appoint generally, or in any case or for a specified class of cases a person to be a public prosecutor.
She revealed that Antouman Gaye, Sheriff Tambadou, Lamin Camara, Racheal Mendy, Combeh Gaye and Yassin Senghore were appointed under section 65 of the CPC. Thus exhibit YB1 (the fiat from the Attorney General and Minister of Justice) is perfectly in order and valid noting that Sheriff Tambadou has withdrawn his representation from the case.
Justice Camara said it is the duty of a judge to consider the totality of evidence of the parties, adding that he has to place on an imaginary scale the set of evidence given by a party against the evidence of the other party in order to arrive at his preference of evidence of one party for the other.
She further said that the primary duty of a judge in the adjudication of cases is to do justice to the parties without fear or favour.
“He or she should not be carried away by sentiment or undue adherence to legal technicality, he or she must be impartial, fair and just to both parties, and because of the double sided nature of justice and fairness, the judge must be even handed,” she added.
Justice Camara disclosed that in the instant case, the main objection of counsel is the issue of conflict of interest because the prosecution team handled the case of habeas corpus regarding Solo Sandeng and others and that there exist a confidential relationship between the team and the deceased and his family.
The trial judge revealed that the court is not interested about the proximity or closeness of the prosecution team to the deceased family but the court is interested in the diligent prosecution of the case, noting that at the end, it is the court that decides based on the evidence produced before it and not whether the mental element of the prosecution is biased or not.
She further revealed that the prosecution team acted for the victim in the previous case and the said victim is the complainant in this case therefore, there is no conflict of interest, moreover, the parties were different, as the instant case is a criminal case and the previous case was a civil matter noting that the facts are not the same.
Justice Camara said the case cited by the 1st accused counsel that Kajali Manneh versus Cheyassin Secka, the facts do not apply in this case and therefore the principle does not apply here.
On the issue of cost raised by the prosecutors, the trial judge pointed she did not see the need to award cost noting that the court would have awarded costs under section (1) (e) of the CPC but then section 143 (2) states that any costs awarded by a court under subsection (1) shall not exceed the sum of one thousand dalasis.
Justice Camara said it would be in the interest of justice if the matter proceeds on its merits, rather than bringing frivolous applications upon applications by the 1st accused.
She asserted that the counsel for the 1st accused should bear in mind the fundamental rights of the accused persons to be tried within a reasonable time and the presumption of innocence, moreover, the applicants right to liberty is at stake citing section 19, 24 of the 1997 constitution of The Gambia.
The matter was then adjourned to the 16th October, 2017 for definite hearing.
Present at the ruling was the minister of foreign affairs and Gambian abroad, Hon. Ousainou Darboe, UDP leader and a senior member of the Gambia Bar Association, who some observers said came to show solidarity for his beloved late party member, Solo Sandeng.