Speech by Madi Jobarteh on the occasion of the 5th anniversary commemoration of the murder of Deyda Hydara
Dec 18, 2009, 10:07 PM
The Banjul High Court presided over by Justice Mohammed Dan Azumi Balarabe, in a ruling delivered yesterday, refused bail to the managing director of Teranga FM radio, Alagie Abdoulie Ceesay.
Ceesay was indicted on a seven-count charge ranging from six counts of sedition to one count of publishing false news.
Delivering his ruling on the bail application, Justice Mohammed Dan Azumi Balarabe said this was a repeated bail application filed by defence counsel Combeh Gaye-Coker on 31 August 2015, praying for an order admitting the accused to be bailed on such terms and conditions the court may deem fit.
He said the motion for bail was supported by an affidavit of 35 paragraphs sworn to by the applicant, adding that attached to the affidavit was exhibits AC1 to 4.
In moving the motion on bail, defence counsel said the application was brought under section 19 of the constitution, which supports the presumption of right to liberty of all persons, and section 99 of the Criminal Procedure Code, which supports applicant’s right to bail.
“I am not aware of any law that stops the accused person from repeating the same application before the same court or even before the same judge,” counsel said.
“It is our submission that the reasons stated by Justice Abi for refusing bail to the applicant are not supported by the facts of the case and also contradicts the applicant’s right to be presumed innocent until proven guilty,” counsel further stated.
“It is my submission that from the ruling of Justice Abi, the judge appeared to have ‘confused’ the issue of broadcasting of information and the issue of publication and distribution of the alleged seditious materials,” she added.
“It is clear that the alleged fear by the judge that if granted bail to the accused there is a possibility of repetition, we submit that the said fear was speculative and unsupported,” she further stated.
Counsel also said the seriousness of the charge on its own should not be a reason for refusal of bail without other compelling factors, and that there was no evidence that the threats in the seditious information are active threats.
In response, the DPP said that they are again opposing the bail application, and had filed an affidavit of 4 paragraphs.
The DPP said that in applying for bail during subsequent proceedings, what was intended was that there has to be a new development in the course of the hearing of the matter or that there is a condition which has not been fulfilled by the respondent.
The DPP added that paragraphs 12 to 17 of the affidavit in support are not factual and are more of grounds of appeal of the court and argumentative.
The court could not sit as an appellant court over its own decision, he further stated.
The high court is not competent to hear the issue that his “learned brother is said to ‘confuse’”, the DPP went on.
He said the ruling on bail application by Justice Abi was foreclosed, and counsel had no right to bring it up again.
The DPP said the only condition under which the application should be brought before the court is when the state failed to arraign the applicant within seven days as ordered by the judge.
The trial judge, in his ruling, said it was the constitutional right of the applicant’s presumption of innocence throughout the trial which is guaranteed by the constitution.
He said conviction must be made based on evidence adduced before the court. He said the guilt of the accused must be proved beyond reasonable doubt.
Section 19 of the constitution has stated that every person shall have the right to liberty except on such grounds by law.
It has now become a fashion for bail applicants to rely on presumption of innocence and the right to liberty, Justice Dan Azumi Balarabe went on.
“We all have a right because the constitution is for all,” the judge said.
Resolving the issue of presumption of innocence and the right to liberty of the applicant, the trial judge said the applicant’s remand in custody did not in any way violate his right to presumption of innocence.
On the issue of Justice Abi “confusing” broadcasting and publication and distribution, the trial judge said he would drop the issue because he had no power over it.
He said the deponent to an affidavit must be clear and avoid bare denial, adding that an applicant seeking bail is not merely given bail, but should placed materials before the court for consideration in granting bail.
He said the applicant applied for bail and the deponent responded with an unsatisfactory affidavit, adding that mere insufficient counter-affidavit did not mean that bail would be granted.
He said the defence counsel has said that the alleged threats were not active threats.
“A threat is a threat be it active or non-active,” declared the judge.
“The application is due to fail and has failed,” he added.