Sep 14, 2016, 10:29 AM
Dampha, Kekuta Jaiteh, Arafang Baldeh and Bafilly Ceesay were on 19 and 20 July
2016 released conditionally by Justice Ezak Ezak, presiding at the Basse High
When the cases came up for mention, barrister Lamin Jarju appeared for the state, while barrister Ndikum Ransome from the National Agency for Legal Aid announced representation for all the accused persons.
State counsel Jarju then informed the court that the cases were for mention, and they were yet to formerly charge the accused persons.
He further stated that the case files could not be traced, and they needed time to put their house in order while seeking an adjournment.
However, N.R. Ndikum objected to the adjournment sought by the state and renewed an application, calling on the judge to discharge the accused persons or release them conditionally.
In support of his application he highlighted the status of the cases.
The defence counsel told the court the cases were transferred with files from the Basse Magistrates’ Court, and were first mentioned before the Basse High Court on the 9/03/2016; when M. Jobe appeared for the state and informed the court they were yet to receive the case files from the police, and sought an adjournment which was not objected to by the defence.
When the case came up on 14 April 2016, B. Drammeh appeared for the state and told the court the case files were received, and were pending for an opinion and asked for an adjournment, which the defence did not object to.
On the 08/06/2016, B. Jaiteh with A. Irehobbude appeared for the state, and told the court they had not received any reliable information from the police, and needed more time.
The defence then objected and applied for the discharge of the accused persons or their conditional release, which was not granted by the court; though the court noted with dismay the conflicting positions from the state counsel, and granted one last adjournment to the 22/07/2016 for the state to put their house in order.
Upon the matters coming up on 22/07/2016, B. Jaiteh appeared for the state and told the court the case files could not be traced in the office.
The defence then called upon the court to discharge or release the accused persons, since the case was adjourned for the last time.
The court reluctantly oblige the state with one more adjournment to the 19/07/2016, stating that should the state failed to formally charge the accused persons, consequential orders would be made without the defence even inviting the court to do so.
N.R. Ndikum then argued his application, stating that ‘justice delayed is justice denied’, ‘delays in law are odious and should not be allowed.’
He said apart from Nuha Dampha, who has been in detention for over six months now without any charge, the other three accused persons were remitted to the High Court on the 5/03/2015 and have been in detention for over one year six months without any charge.
It was his argument that the conflicting positions of the various prosecutors showed that they were not ready to proceed with the prosecution’s case, and continuous detention of the accused persons was a gross violation of their fundamental human rights, as enshrined in the constitution and other international instruments.
He submitted that it was over five months when the state first appeared in these matters before the Basse High Court, and yet the accused persons are not aware of their fate.
It would be in the interest of justice for the accused persons to be discharged at this point and, given that a discharged is not an acquittal, when their files are traced, the state could always go for the accused persons, he further told the court.
Even if the judge was not minded to discharge the accused persons, they should be conditionally released pursuant to Section 19(5) of the Constitution, as they had sureties in court who were ready to enter into recognisance on their behalf, he continued.
He concluded by saying if the court exercises the later position, then it should carry a caveat that if at the next adjourned date no formal charge is proffered against the accused person, they should be automatically discharged with their sureties if any forthwith.
State counsel Jarju, in response, said they were not objecting to a conditional release, but were objecting to a discharge given the nature of the offence alleged against them.
Justice Ezat, in delivering his ruling, highlighted the antecedent of the cases as stated by the defence counsel in his application, and noted with dismay the conduct of the prosecution.
The judge said the court had gone an extra mile to assist the state by issuing an order that was directed to Basse Police Station for all these files to be forwarded to the office of the DPP, if they were still in their possession.
It appeared it was the fault of the prosecution, as the court had been informed by counsel that the files were received subsequent to the order of the court.
It was his ruling that the accused persons could not be continuously detained at the leniency of the state, because one could not tell when their files would be traced.
Given the nature of the offence, he would not discharge the accused persons, but release them conditionally, the judge went on.
‘’I shall exercise the powers under Section 19(5) of the Constitution of The Gambia and release the accused persons, on the following conditions:
1. The accused shall furnish one surety who shall enter into a bond of D50,000.
2. The accused and surety shall deposit 2 passport photos with the registrar of this court.
3. The prosecution is given up to the next adjournment date to decide the fate of the accused persons finally in these matters.
4. If on the next adjournment date the accused are not charged, they shall be discharged with their sureties unconditionally.
Cases were adjourned until 11,12 and 13 October 2016.