Aug 19, 2008, 6:35 AM
Defence counsel Borry Touray, who is representing Ensa Badjie and Lt. Col Mam Matarr Secka and L.K. Mboge, representing Major Kuluteh Manneh yesterday filed a motion before Justice Amadi of the High Court, challenging some of the counts the accused persons are charged with.
According to Counsel Borry Touray, the motion which was jointly filed, dated 11th May 2010, was intended to strike out some of the counts.
He drew the court's attention to counts: 44 to 51 that touched on economic crimes.
Defence counsel Touray submitted that those charges were brought under Decree No.6 of 1994.
The defence stated that from count 44 to 51, the court could observe, in the particulars of each of those counts, that the persons who suffered loss are names of individuals and not the state or the government of The Gambia.
He further argued that, in order for a person to be charged under Section 5(G) of the said Decree, the benefit he derived must be from a public body.
"There is nowhere in the counts, from 44 to 51, to show that all the persons named there are all public officers in the employment of the government of The Gambia," the defence lawyer told the court.
According to Borry Touray, the facts of this case have no bearing on economic crimes, as related to counts 44 to 51. He added that counts 4, 11 and 48 are about the same sum of money, the same persons and the same transaction. He added that the same goes for counts 5, 12 and 34, as well as for counts 6 and 13, 7 and 14, 8 and 15, 9 and 16.
"These are not offences of a different nature. They just one offence, if any offence exist at all," counsel added.
Defence counsel Touray further said the charges are surmountable on the part of the accused persons, who are going to defend themselves on each of the counts.
Lawyer Borry Touray further added that even if the prosecutor is going to select the counts, he could not select economic crimes because there is no loss to a public body. He cited legal authorities in support of his argument.
Defence counsel L. K. Mboge, in his turn, also submitted that counts 1 and 2 are vague.
In response, the Director of Public Prosecutions, Richard N Chenge, submitted that the defence motion was medicine being administered after death. He then cited Section 217 of the Criminal Procedure Code to buttress his submission.
According to DPP Chenge, it was too late for the defence to raise an objection to some of the counts, adding that it was the acts of the accused persons that determined the number of counts.
He said counts 1 and 2 are not vague, adding "they are clear." He also cited legal authorities to strengthen his submission.
The case was adjourned to 14th May 2010 for ruling.