The
High Court presided over by Justice Abi yesterday acquitted and discharged two
Gambians, Momarr Sowe and Alieu Sarr, accused of engaging in homosexual act.
Delivering his ruling, Justice Abi, said the accused person, Momarr Sowe, was charged with one count of unnatural offences and three counts of conspiracy, which he denied.
He said the prosecution called three witnesses and tendered exhibit.
At the close of the prosecution’s case, the defence filed a written brief of no-case-to-answer submission, he said.
In their brief, he added, the defence said the court could not rely on the evidence adduced by the prosecution witnesses to convict the accused person.
The state responded that they had a case against the accused person, and urged the court to dismiss the no-case-to-answer submission and called on the accused to enter defence.
They said the no-case-to-answer was not applicable in the high court, citing other cases.
Justice Abi disagreed with the learned DPP that the no-case-to-answer was not applicable to the high court.
He said a no-case submission was applicable at the high court, and could be raised at anytime and in any form.
The judge further said a no-case submission could be made when at the closure of the prosecution’s case, there was no evidence adduced by the prosecution witnesses or where the evidence of the prosecution witnesses has been discredited as a result of cross-examination.
He said the question was whether the prosecution has established a prima facie case against the accused persons beyond all reasonable doubts.
He said PW1, in his evidence, said he was part of the patrolling team that went to Senegambia area where the accused was arrested and taken into NIA custody pending further investigations.
PW2 said he recorded the statement of the accused in English and he, the accused and the independent witness, signed and that was all he knew about the case.
PW3 also said he was part of the investigative panel that invited the accused for questioning and they wrote a report, which was all he too knew about the case.
Justice Abi then said it was clear that PW1 and all the prosecution witnesses did not have any evidence that state that the accused did the act or where caught in the act as alleged in the charge.
He said the prosecution failed to prove the burden of the case beyond all reasonable doubts.
“I therefore I hold that the accused is not guilty of the charge and I therefore acquit and discharge him,” he said.
He said Alieu Sarr, was also charged with two counts of unnatural offences and four counts of conspiracy to commit homosexuality, which he denied.
The prosecution called one witness and tendered exhibit, and at the closure of the prosecution’s case, the defence filed written brief of no-case-to-answer submission.
He said the evidence of the prosecution’s sole witness did not say anything that proved the ingredients of charge against the accused person.
He, therefore, held that the prosecution failed to prove the case beyond all reasonable doubts and discharged him accordingly.
The alleged homosexuals, three of them, were all Gambians and the case of the last one, Modou Lamin Bittaye, was yet to end.
They were arraigned before Justice Abi of the Banjul High on 9 February 2015.
They were remanded at Mile 2 Prisons since 24 December 2014 till 21 January 2015, when a new charge was brought against them.
They were then given D2-million bail bond each, which they could not fulfill and were in detention at Mile 2 throughout the trial, which was done in chamber upon the request of the state, which said the prosecution witnesses were state security officials whose identity needed to be hidden from the public.