The second accused was charged with accessory after the fact at the Sukuta Jabang Traffic Light incident and she was reported to be a sister to the first accused Ousainou Bojang.
Counsel Mboge argued that the applicant (the second accused) was charged with accessory after the fact contrary to section 202 of the Criminal Code for allegedly assisting the first accused.
He said the charge was premised on the allegations that the applicant helped the first accused to escape punishment after he had allegedly committed an offence at Sukuta Jabang traffic light.
However, Mboge submitted that the applicant was entitled to bail pending hearing and determination of the main suit.
He cited section 19 of the 1997 constitution of The Gambia, which guaranteed the applicant’s right to liberty like any other person in Gambia, while section 19 (1) of the constitution states that: “Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.” That, he added, makes it a fundamental right for the accused to be granted bail.
The defence counsel further stated that granting of bail pursuant to Section 99 of the Criminal Procedure Code is discretionary to the Court. He submitted that the court should exercise its discretion judicially and judiciously by granting bail to the applicant pending the hearing and determination of the main case.
Lawyer Mboge said the additional affidavit in support disclosed that the applicant had been confirmed to be an asthmatic patient and was suffering from hypertension. “Looking at the nature of Mile 2 Central Prison, the applicant is exposed to a greater health risk and may worsen the applicant's health condition and the presumption of innocence lies in favour of the applicant and thus, section 24(3)(a) of the 1997 Constitution states that an accused charged with an offence is innocent until proven guilty.”
Mboge further explained that the applicant is a mother of 7 children and cannot in any way abscond and leave her children behind, saying that she has strong family ties in the community and had no interest in absconding or leaving the jurisdiction before trial was completed and would not interfere with any of the witnesses whilst on bail or able to tamper with the investigation, which has since concluded.
The applicant also had sureties who were willing and able to fulfil reasonable conditions imposed by the court in the event bail is granted, counsel Mboge pointed out.
Counsel E.R. Dunga, representing the state raised objections to the defendant’s motion, pointing out that a person charged with an offence punishable with death/imprisonment is not entitled to bail and the applicant was charged under Section 202 of the Criminal Code for the offence of accessory after the fact to murder, which is a felony punishable with imprisonment for life.
She highlighted that section 19(1) of the 1997 Constitution states in content that no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
Accordingly, she said the combined effect of sections 19(1) of the Constitution, 99 of the Criminal Procedure Code and 202 of the Criminal Code are undoubtedly clear that the applicant was not entitled to bail and as such the court was enjoined to hold the same and refuse the application.
On the applicant's brief of argument on summons for bail, she pointed out that section 99 of the Criminal Code implies that bail is at the discretion of the court. The brief also indicated that the applicant was an asthmatic patient and was suffering from hypertension.
Counsel Jobe responded to the argument of the applicant and said there was no conclusive proof of the applicant being either a hypertensive or asthmatic patient besides the purported medical card from Adult Care Unit (ACU) Clinic.
She, therefore, urged the court to dismiss the application made by Counsel Mboge because as a matter of fact ,section 99 of the Criminal Code does not avail the accused that privilege.
The case was adjourned until 20 November 2023 for ruling on the application of bail.
