By Mamadou Dem
The defence team headed by Antouman Gaye yesterday urged a high court judge, Justice Eunice Dada Oshin, not to continue with
the case of the United Democratic Party {UDP} Opposition Leader, lawyer Ousainou Darboe, and nineteen others as per section 5 sub section 3 of the high court Practice Direction.
When the case resumed yesterday for ruling on whether to forward the constitutional issues raised by the defence for interpretation by the Supreme Court of the Gambia, the Director of Public Prosecution (DPP), Hadi Saleh Bakum, reminded the court that the matter was slated for ruling and they were ready to take the ruling.
The defence team headed by Mr Antouman Gaye at this point asked the court for the accused persons to be seated, but the trial judge stated that she won’t entertain such an application at that moment and urged the defence to make a formal application by the next adjourned date.
Countering DPP’s application for the court to proceed, the defence argued that the matter was not slated for ruling and then referred the court to section 5 subsection 3 of the ‘Practice Direction’ of the high court, rule number 1, 2013. He added that the said Practice Direction under the said section states that a succeeding judge shall not continue with a case or ruling, rather it should be heard in trial de-novo. “We rely on the said Practice Direction,” he emphasized.
In an attempt to counter the submission of the defence, the DPP argued that criminal cases do not start with trial de-novo. He said he has been in this jurisdiction for eight years and has prosecuted numerous criminal cases in different courts which were referred to other judges and such applications had never been made.
DPP further argued that the section cited by the defence was to guide the court and is not a compelling law but rather meant to guide the court. “My lord it is even in the interest of the accused persons for the trial to continue where it stopped as undue delay as starting a case in trial de-novo will not have a fair dispensation, and it should be noted that the accused persons are in detention. And the only thing that can guarantee their constitutional right of innocence is when the trial proceeds as the application made by the defence is intended to cause delay; as the Practice Direction is meant for the court and not for the court to follow up any direction. We therefore urge the court to refuse the application,” DPP submitted.
Taking note of the point raised by the DPP that he has been practicing in this jurisdiction for eight years and that there has been transfer of cases from one judge to the other; the defence argued that the fact that they’ve been doing it wrongly does not mean that the Practice Direction is inapplicable.
“What DPP is urging the court to do is applicable at the lower court,” said Barrister Gaye. Thereby citing Section 297 of the Criminal Procedure Code (CPC) which he said allows one Magistrate to succeed the other. He further noted that there is no such position in the superior court.
Continuing further, Barrister Gaye argued that hence the DPP was the one that opposed bail application of the accused persons, he (DPP) cannot at this stage talk about the interest of their clients.
After listening to both parties, the trial judge, Justice Oshin, adjourned the matter till 26 May for ruling as to whether she can continue with the case or not.
These are the names of the accused persons: Ousaniou Darboe, Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Yaya Bah, Baboucarr Camara, Fakebba Colley, Ismaila Ceesay, Momodou Fatty, Dodou Ceesay, Samba Kinteh, Mamudu Manneh, Nfarama Kuyateh, Fanta Darboe, Lamin Njie, Juguna Suso, Momodou LK Sanneh and Yaya Jammeh and Masanneh Lalo Jawla. They are faced with numerous criminal charges ranging from unlawful assembly, riot, incitement of violence, riotously interfering with vehicles amongst others. However all accused persons pleaded not guilty to all the charges and were remanded in prison.
