Jul 30, 2012, 1:25 PM
Principal Magistrate Dawda Jallow yesterday ruled that the bail application for Hon. Pa Malick Ceesay, former national coordinator of National Enterprise Development Initiative, NEDI and former NEDI accountant Ismaila Njie, was discountenanced.
The two were arraigned on Monday at the Banjul Magistrates’ Court and charged with sixteen counts, including economic crime, theft, neglect of official duty, and abuse of office.
Pa Malick Ceesay is the National Assembly Member for Lower Saloum constituency.
In his ruling, the magistrate said the two accused persons stood charged between them with 16 counts of varying offences, including a number of counts of economic crime.
He added that soon after their arraignment, the prosecution in line with the criminal procedure code and the Economic Crime (specific offences Act) applied to have the matter transferred to the high court of The Gambia.
“It is trite law that bail is discretional and any court faced with the application for bail may exercise the discretion either in favour of the applicants or otherwise bearing in mind certain important factors.”
He said the common factors that courts do consider included the nature of the offence; the punishment prescribed for the offence; and the accused person’s criminal record.
The court also gives consideration to the possibility of the accused committing further offences while on bail; and consideration is also given to the likelihood of the accused interfering with the investigation of the offence, if given bail.
“It is trite law that in all cases of exercise of the discretion, the court is required to exercise its discretion judicially and judiciously. That means the court is to exercise such discretion on the basis of the material facts placed before the court.”
In this case, other than the laws cited by counsel for the accused persons, no individual facts regarding the accused persons had been placed before the court in assisting it reach a considered decision.
Even whereas the accused persons were charged together in one charged sheet, each of them has a personal case to answer, and their private circumstances could never be the same, especially in an application for bail.
An application for bail, seeking for a personal equitable relief, requires that each applicant must present his case to court, the magistrate went on.
In the circumstances, he added, the applicants have not individually shown any special circumstances to warrant him exercise his discretion in favour of granting them bail.
Granting of bail is not automatic, it was discretional and the court before which such an application was made needed to be persuaded to exercise its discretion one way or the order, he continued.
The prosecution did raise fears that the accused persons would escape or tamper with the prosecution’s witness, but counsel did not provide the court with anything to allay those fears, the magistrate further told the court.
“The court cannot close its eyes to the concerns of the prosecution, without any facts to the contrary.”
Consequently, said the magistrate, the court was constrained to hold that the application for bail was “discountenanced.”
“The application to have the case transferred to the high court was granted, and the matter was hereby transferred with immediate effect to the office of the honourable Chief Justice for reassignment”, he announced.