By Rohey Jadama
The defence team defending Mr. Yankuba Badjie, the former Director of the defunct National Intelligence Agency (NIA) and eight others has told the Banjul High court that the Deputy DPP is incompetent to initiate prosecution.
They made these remarks while moving their summons filed on behalf of their clients for the charges to be struck out and the accused persons before Justice Kumba Sillah-Camara discharged.
The other accused persons are Louis Gomez, former Deputy Director, Saikou Omar Jeng, former Director of Operations, Haruna Susso, Yusupha Jammeh, Tamba Masireh, Lamin Darboe and Baboucarr Sallah, all operatives of the NIA, and Lamin Lang Sanyang.
When the case was called the Deputy Director of Public Prosecutions M.B. Abubacarr, E.R. Dungan, M.Koita and K. Mbaye announced their representation for the state. Lawyers C.E. Mene and E.Chime appeared for the 1st accused, Lawyers Edward Gomez for the 2nd accused, Lawyer M.B Johnson Richards for the 3rd accused, Lawyer S. Kenedy for the 4th, 5th, 7th and 8th accused persons, Lawyer U. Achebeh for the 6th accused and Lawyer Dago for the 9th accused.
At this juncture the presiding Judge stated that the matter is slated for summons on notice.
In moving the application Lawyer Mene submitted that in the summons they are seeking an order of the court to strike out the information dated the 20th day of March, 2017 and filed on the same day for want of jurisdiction on the grounds that 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.
Barrister Mene further told the court that the application is supported by a 9 paragraph affidavit. He said they are relying on all the paragraphs, particularly paragraphs 3-8.
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 Prosecutions (DPP) is distinct from the office of the Attorney General. I am aware as at the 20th 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 is not competent to exercise the powers of the DPP in the absence of the incumbent DPP. That the said charges filed by M.B. Abubacarr is null and void.
Lawyer Mene said the respondent filed a 10 paragraph affidavit of opposition wherein they said the DPP is 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 that states that ‘the Director of Public Prosecutions 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 is approval just like the National assembly passes a bill and the president assents to it but that one cannot 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 is no incumbent DPP. “If there is no incumbent DPP who is directing?” he questioned.
He continued “If my lady turns to the signature page it is signed by M.B Abubacarr from A.G Chambers and it does not indicate that he is acting as the DPP. The Law has not created any Deputy Director of Public Prosecutions (DPP) so it is not known to law. The charges is not consistent with the 1997 constitution. This case therefore is not initiated by due process of the law”, submitted Lawyer Mene.
He argued that if there is no incumbent DPP then there is nobody to delegate responsibility. He finally submitted that the case was not instituted by due process of law and is not in accordance with 1997 constitution of the Republic of the Gambia.
Richard Attorney for the 3rd accused person associated himself with the submission of Lawyer Mene and added that M.B. Abubacarr is incompetent to initiate such a case. He said in the interest of justice, the court should strike out the charges and the accused persons be discharged. Lawyers Achebe and Dago also associated themselves with the submission of Lawyer Mene. However, Lawyer Edward Gomez defence counsel for the 2nd accused told the court that the summons does not affect his client.
Responding to the defence team, the Deputy Director of Public Prosecutions (DDPP) M.B. Abubacarr said they are vehemently opposing the application and furtherance to that they have filed a 12 paragraph affidavit of opposition sworn to by one Mariam Ceesay a clerk at the Attorney General’s Chambers.
He further told the court that they are relying on all the paragraphs of the affidavit and particularly paragraph 5-11. He said although section 84 of the constitution creates 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. He said therefore, the DPP shall be subject to the direction or control of the Attorney General. He said this 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.
The DDPP argued that the prosecuting powers are vested in the Attorney General and the DPP acts as an agent. Clearly, he added the DPP is rendered inactive in the absence of approval of Attorney General.
“Therefore, the argument of my learned friends in this regard is misconceived and bears no equation. The other issue conversed is the absence of the incumbent DPP. I must state that we deny that there is no incumbent DPP and we emphasize that the Attorney General has control over prosecution”, said the deputy chief of prosecution.
He argued that counsel failed to substantiate that there is 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 makes 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.
“To state that the absence of the DPP will make the office of the DPP close is untenable, insensible and not legal. I am capable to initiate a criminal trial”, he said.
He finally submitted that the application of the defence is misconceived, untenable and should be dismissed. He said sections 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 enjoin 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 there is no confusion and ambiguity to warrant them to go to the Supreme Court. He said section 127 (1) (a) does not apply in this case. He said referring the case to the Supreme Court will deny the accused persons the right to expeditious trial. He added that they are not dealing with the approval but the powers vested on the DPP being exercised by another person. He said if any practice is inconsistent with the constitution to the extent of its inconsistency, it is null and void and that it does not matter whether they have been doing it.
Lawyer Richard also associated himself with the submission of Lawyer Mene and added that section 84 states that only the DPP can initiate prosecution. He further argued that the power is vested on an individual not an office.
“It is only when he initiate prosecution then the powers of the Attorney General comes in to approve. There is no DPP and the information filed by the ministry of Justice as distinct is null and void and should be struck out and the accused persons be discharged because the due process of the law was not followed”, submitted Lawyer Richard.
Lawyers Kenedy and Dago also associated themselves with the submissions of Lawyers Richard and Mene.
At this juncture the trial judge struck out the bail application of the 9th accused because it was not properly constituted.
The case was adjourned till the 18 and 24 April at 12noon for mention and the 2nd of May, 2017 for ruling on the summons.
