The High Court will deliver a ruling on the 24 August 2020 on whether Mr. Touray should be allowed to testify in the case or not.
Touray was a long-serving minister of Local Government and Lands. Retired Captain Touray was also a member of the Armed Forces Provisional Ruling Council (AFPRC) after they overthrew the PPP 30-year rule. The former military officer turned politician was accused of the murder of former Minister of Finance, Ousman Koro Ceesay under the AFPRC reign. The prosecution alleged that Touray (now a businessman) used a pestle-like weapon to murder Ceesay in June 1995 at his (Touray’s) residence. However, Touray denied any wrongdoing as he pleaded his constitutional immunity, but the court entered a plea of not guilty for him.
Lawyer Abdoulie Sisoho submitted that the court is guided by the 1997 Constitution of The Gambia, the principles of the common law and statute and the rules of the court.
He argued that both the Constitution and the Statute override the rules of procedure which is the Criminal Procedure Code.
The senior lawyer cited section 24 of the Constitution which gives the accused person the right to speak. He submitted that section 24 of the Constitution supersedes the provision of the Criminal Procedure Code which the State relied upon. He also relied on the principles of natural justice – ‘audi alterem partem’ which means the right to be heard.
“The right to speak is an absolute right. It is an unalienable right. It cannot be taken,” Sisoho said.
Lawyer Sisoho added: “The accused person has the absolute right to speak. He has chosen to speak. He should be allowed to speak in the interest of justice.”
Counsel Tah said section 24 of the Constitution guarantees the absolute right to fair hearing but was quick to add that the accused person was afforded the right to be heard as the first witness for the defence but he refused.
He submitted that the accused person cannot come again to testify after his witnesses have already testified.
“The accused person’s evidence has to start first before calling other witness,” the state lawyer said.
The senior state counsel said the application made by Counsel Sisoho said if the accused person wanted to testify in his own case, he (the accused) should have been the first person to give his testimony as the first defence witness but cannot testify after two of his defence witnesses’ testimonies because he has been listening to them.
“If the accused person had shown the desire to testify before the court he would have testified first and I am sure that the defence is aware of that,” he said.
The State Counsel presented that the Criminal Procedure Code provides that an accused person can open his defence and should be the first to testify but cannot give any evidence before the court after another witness has testified. Lawyer Tahoe argued that this provision is a mandatory requirement.