Jul 27, 2009, 10:06 AM
team in the criminal trial involving nine former NIA officials yesterday
questioned the competence of the Deputy Director of Public Prosecution, M.B.
Abubacarr, in his handling of the case.
They were arguing over summons on notice filed before Justice Kumba Sillah Camara of the Banjul High Court.
The nine officials are Yankuba Badjie, the former Director General of the NIA, Louie Richard Leese Gomez, Saikou Omar Jeng, Baboucarr Sallah, Yusupha Jammeh, Haruna Susso, Tamba Mansaray, Lamin Darboe and Lamin Lang Sanyang.
They are charged with twelve counts of criminal offences of conspiracy to murder, murder, assaults causing actual bodily harm, conspiracy to commit misdemeanor, forgery and making documents without authority.
When the case was called, the Deputy Director of Public Prosecution, M.B. Abubacarr, announced his representation for the state whilst the defendants were represented by C.E. Mene, E. Chime, Edward Gomez, M.B. Johnson, S. Kenedy, U. Achigbue and D. Dago.
At this juncture, the presiding Judge stated that the matter was slated for hearing on summons on notice.
In moving the application, Lawyer Mene submitted that in the sermons they are seeking an order of the court to strike out the information dated 20 March 2017 and filed on the same day for want of jurisdiction.
He said the criminal case was not instituted in accordance with the due process of the law and the requisite provisions of the 1997 constitution of the Republic of The Gambia.
Counsel Mene said the application was supported by a 9-paragraph affidavit, adding that tthey are relying on all the paragraphs, particularly paragraph 3 to 8.
He urged the court to strike out the information (charges) and discharge the accused persons.
“I am aware that the office of the Director of Public Prosecution (DPP) is secrete and distinct from the office of the Attorney General. I am aware as at 20 March when the criminal case number HC/068/17/CR/012/AO was purportedly filed by M.B. Abubacarr and that there was no incumbent DPP at the time,” he submitted.
He further submitted that there was no DPP appointed by the president of the republic as enshrined in the 1997 constitution.
He added that M.B. Abubacarr was not competent to exercise the powers of the DPP in the absence of the incumbent DPP and that the said charges filed by M.B. Abubacarr were null and void.
Lawyer Mene said the respondent filed a 10-paragraph affidavit of opposition wherein they said the DPP was not a distinct office in the public service and that the Attorney General has control over their office which he exercises through the office of the DPP.
Lawyer Mene said the prosecuting authority has now been directly under the DPP as per section 85(1) of the 1997 constitution which stated that ‘the Director of Public Prosecution shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General’.
He added that the only thing the DPP requires from the Attorney General was approval just like the National Assembly passes a bill and the president assents to it but that one could not do the work of the other one.
Lawyer Mene submitted that the constitution has not given any provision as to what should happen when there was no incumbent DPP.
He inquired to know who was directing if there was no incumbent DPP.
“If my lady could turn to the signature page it is signed by M.B. Abubacarr from the A.G Chambers and it does not indicate that he is acting as the DPP,” he said.
“The law has not created any Deputy Director of Public Prosecution (DPP) so it is not known to law. The charges are not consistent with the 1997 constitution. This case, therefore, is not initiated by due process of the law,” he added.
He argued that if there was no incumbent DPP then there was nobody to delegate responsibility.
He finally submitted that the case was not instituted by due process of the law and not in accordance with the 1997 constitution of the Republic of The Gambia.
Counsel Moses Richard one of the defence team associated himself with the submission of Lawyer Mene and Counsel Achigbue and D. Dago also associated themselves with the submission of Lawyer Mene.
However, Counsel E.A. Gomez, who represented the 2nd accused, told the court the summons do not affect his client.
In reply, the Deputy Director of Public Prosecutions (DDPP) M.B. Abubacarr, said they were vehemently opposing the application and in furtherance to that they had filed a 12-paragraph affidavit of opposition.
He further told the court that they were relying on all the paragraphs of the affidavit, particularly paragraph 5 to 11.
He said although section 84 of the constitution created the office of the DPP, it does not mean that it is distinct and separate from the office of the Attorney General.
At this juncture, he read section 85 of the 1997 constitution and stated that the key word there is ‘subject to the approval of the Attorney General’.
Therefore, he said, the DPP shall be subject to the direction or control of the Attorney General, adding that the provision clearly shows that the constitution intended to make the office of the DPP part and parcel of the Attorney General not a distinct office as alluded to by the defence counsel.
M.B. Abubacarr argued that the prosecuting powers are vested on the Attorney General and the DPP acts as an agent.
Clearly, he added, the DPP was rendered inactive in the absence of approval of the Attorney General.
He argued that the defence counsel failed to substantiate that there was no incumbent DPP and he who asserts must prove.
He said the office of the DPP is a constitutional creation that defines and delegates duties which make the office a public authority that exists.
Therefore, he added, whether the office of the DPP is occupied or not, the office continues to function.
He submitted that the application of the defence was misconceived, untenable and should be “dismissed”.
He said section 84 and 85 of the constitution seems to call for an interpretation as to the powers of the Attorney General and DPP and that being the case the powers should be interpreted at the Supreme Court of The Gambia.
“I refer the court to section 127(1) (a) of the 1997 constitution of the republic and enjoined this court to stay off proceedings in this case and refer the matter to the Supreme Court for interpretation,” submitted Lawyer M.B. Abubacarr.
Replying on points of law, lawyer Mene said referring the case to the Supreme Court would deny the accused persons the right to expeditious trial.
Counsel Richards said there was no DPP and the information filed by the Ministry of Justice as distinct was null and void and should be struck out and the accused persons be discharged because the due process of the law was not followed.
The case was adjourned until 18 and 24 April at 12noon for mention and 2 May 2017, for ruling on the sermons.