Justice
Amina Saho-Ceesay of the High Court in Banjul is expected on 6 February, 2020,
to rule on bail application made by Counsel R. Mendy on behalf of executive
members of 3 Years Jotna.
Abdou
Njie, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh, Fanta Mballow, Karim
Touray, Yankuba Darboe and Muctarr Ceesay were on 29 Jan. 2020 arraigned before
the Kanifing Magistrates’ Court and charged with unlawful assembly, rioting
after proclamation and rioters demolishing structures.
Because
of count three which is rioters demolishing structures, which Prosecutor
Mballow argued that it is an unbailable offence, the presiding magistrate ruled
in favour of the prosecution and said that the court does not have the
jurisdiction to hear the case. She subsequently transferred the case to the
Special Criminal Division and remanded the accused in custody.
Patrick
Gomez, lead prosecutor for the state, told the High Court that they received
the case file from the police on 3 February, 2020, which was transferred from
the Kanifing Magistrates’ Court. He sought for an adjournment to enable them go
through the file.
Reacting,
Counsel R. Mendy told the court that there was nothing before the court that
warranted for an adjournment, noting that no charges were before the court. She
argued that the reason for an adjournment was just to remand the accused persons.
She
said she was applying for the accused to be granted bail until such time that
the state will put their house in order. She adduced that the accused have been
in custody since 26 January, 2020, adding that Section 24 of the constitution
indicates that the accused should be availed fair trial.
She
submitted that the state knows that the accused should be properly brought
before the High Court and not the magistrate court, instead they took them to
the magistrate court, knowing that it was wrong. “Their action is to further
delay the trial. This is why they said that they received the file yesterday,”
she argued.
She
noted that taking the accused to court implied that they were ready to
prosecute the case, stating that they wished to apply for bail for all the
accused. She adduced that there were charges against the accused at the
magistrate court, adding that they believed that the state relies on them to
prosecute the accused. She said that they are bailable offences.
At
this juncture, she cited a High Court ruling to support her argument. She
further said that the accused are all Gambian citizens and they have no
intention to leave the jurisdiction. Section 99 of the CPC was cited by her in
relation to a High Court ruling.
Patrick
Gomez, lead prosecutor, said that they were opposing the application for bail.
He stated that there was a charge before the court. He referred to Section 62
(2) of the CPC and read the proviso to the court. “Going by the provision, it
is very clear that there is proper charge against the accused because it is a
transferred matter. The state has no intention to delay the trial,” he told the
court. He added that the case was transferred because the Kanifing Magistrates’
Court lacked jurisdiction. He argued that one of the offences which the accused
were charged with at the lower court is not bailable, and this was why the case
was transferred.
“Count
three on the charge sheet is not bailable and it attracts life imprisonment. It
is the position of the law within our jurisdiction that where offences attract
life imprisonment or death sentence, bail should not be granted,” he challenged
the defence. He referred the court to Section 99 of the CPC to convince it.
He
dwelled on the citation by the defence of a ruling by the High Court in the
case of Henry Gibril. He submitted that the case of Henry Gibril is quite
distinct from the case before the court, stating further that his case was a
pending appeal. “The case before the court is not for appeal,” he declared.
He
said that Section 99 of the CPC was applicable and it robs the jurisdiction of
the court to use its discretion to grant bail for offences that attract life
imprisonment or death sentence. “It is settled law in our jurisdiction that the
decision of one High Court judge is not binding to the other. We urge the court
not to grant bail,” he stated.
Defence
Counsel R. Mendy, on points of law, said that Section 62 of the CPC was not
applicable, adding that the applicable section is 208 and not Section 62 of the
CPC. She then cited Section 175 (b) to support her argument, and read the
provision to the court.
“There
are no charges properly before the court. The case of Henry Gibril was not an
appeal pending. The submission made by the prosecutor is misconceived. There is
a law of presumption of innocence until proven guilty. I urge the court to
grant bail to the accused,” she urged.
