Justice Abi of the High in Banjul yesterday ruled
that the witnesses in the trial involving Momarr Sowe, accused of engaging in
homosexual activity, be heard in chambers.
This was after the state, represented by AM Yusuph, applied for the evidence of the witnesses to be heard in chambers.
In his ruling, the trial judge said the state counsel wants some of the prosecution witnesses to testify in chambers on the grounds that they are security personnel, whose identity should be protected from the public.
According to Justice Abi, defence counsel Mrs Gaye-Coker objected, submitting that the only instances where proceedings might not be in public are provided for in section 24(2) of the constitution of The Gambia 1997.
The reason cited by the state did not fall into any of the exceptions provided in Section 24(2), counsel told the court.
It was not shown how hearing the witnesses in open court would prejudice the interest of justice, and urged the court to refuse the state’s application.
Replying on points of law, A.M. Yusuf submitted that it was both trite law and conventional practice in this jurisdiction that evidence of certain officers is usually heard in private.
He submitted that the defence construed the exceptions in Section 24(2) of the constitution disjunctively instead of conjunctively, and that the present application falls under the public order exception in Section 24(2).
He also submitted that apart from the constitution, the Evidence Act provides for the reception of evidence of certain officers in private, and the present application is also covered by the Evidence Act provisions.
Yusuf added that the defence would not be prejudiced in anyway if the evidence of the witnesses is received in chambers, since the accused and his counsel would both be present during the testimony of the witnesses in chambers.
“I have listened carefully to all arguments on both sides. Although this issue has come up from time to time before the courts, I do not think one particular case can be a proper guide in the determination of any other. This is because the facts and circumstances will definitely differ from case to case,” the judge said.
In this particular case, he added, the application is based on the reason that the identity of the proposed witnesses who are security agents ought to be protected.
In making the application, no particulars were given as to the particular nature of the security work the proposed witnesses were engaged in, the judge added.
“I know for a fact that security operatives who require such identity protection are mostly undercover operatives,” said the trial judge.
“They are simply said to be security operatives. I could call for better particulars from the state, but that itself, if done in open court may endanger even more the security the state wishes to protect of the identity of the proposed witnesses,” he went on.
On the question of Section 24(2) of the constitution, both counsel dwelt on the provision without due reference to the operative words of the subsection, he stated.
The subsection (2) of Section 24 of the Constitution starts as follow: “All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any court or other authority, including the announcement of the decision of the court or other authority shall be held in public.”
The operative words here are “proceedings relating to the determination of the existence or extent of civil rights or obligations”, he noted.
“I do not see how the subsection (2) will apply to criminal proceedings,” he said.
“There are other provisions both in the constitution and other laws for hearings in public in criminal cases, but I have not come across a provision which disentitles the court from hearing witnesses in chambers in appropriate cases,” he added.
“I accordingly find and hold that Section 24(2) of the constitution does not apply to criminal proceedings,” he ruled.
“In the instant case, in the absence of further particulars about the nature of the security work engaged in by the proposed witnesses, I will chose to err on the side of caution by protecting the identity of the proposed witnesses at this stage. Should I be later furnished with a reason to hold otherwise, I will certainly remove any protection now granted,” he said.
“I, therefore, overrule the objection of learned defence counsel and the witnesses for the prosecution whom the state shall show are security operatives shall be heard in chambers,” the judge further stated.
The case continues.
