By Rohey Jadama
Lawyer Ida D Drameh, Amie N. D Bensouda, Mrs. Hawa Sisay Sabally and
Y. H. Cox have urged the Banjul high court presided over by Justice Simeon Ateh Abi that it is in the interest of justice that the summons be referred to the supreme court to determine whether section 43A of the Drug control Act 2010 is made in excess of legislativeauthority. They made this appeal in the Shyben A. Madi and Sons limited and co case.
The accused persons are Shyben A. Madi and Sons limited 1st accused,
George S Madi 2nd accused, Fatara Charles Victor Shyben Madi Fatara
3rd accused, George Madi Jr. Fatara 4th accused and Carmen Gomez
Madi Fatara 5th accused.
When the case was called yesterday, Ida D Drameh reminded the court
that they have filed a motion in which they challenged the
constitutionality of section 43A of the Drug Control Act 2010. She
added that it is very important that the motion be granted.
Barrister Drameh further told the court that she had served the
Director of Public Prosecutions (DPP) with the copy of the said
motion.
Responding to the motion, the DPP said they are objecting to the motion. He
further added that this is the first time they are seeing such a
motion and that they are going to respond to it.
Three days was given to the DPP to file his reply to the motion and 7 days
to the defence to reply on points of law.
The presiding judge adjourned the case till 7th of July for a ruling
on the motion.
The motion on notice filed by the lawyer on behalf of the company
states that the applicant has the right to challenge the
constitutionality of the provisions of section 43A of the Drug Control
Act 2010 pursuant to the provisions of sections 4 and 5 of the
constitution.
It further added that the court refer the matter to the supreme court
of the Gambia in accordance with the requirements of section 127(1)(b)
of the constitution for a determination of whether or not the said
section 43A of the Drug Control Act was made in excess of legislative
authority conferred by the constitution or any other law upon the
National Assembly.
The defence also urged the court to stay the charges in the amended
information filed on the 21st day of May 2015 both of which relate to
the offence created by section 43A of the Drug Control Act and further
proceeding in this case pending the hearing and determination of the
said reference to the Supreme Court.
Furthermore, that all the processes and orders issued in relation to
the said charges in this case be stayed particularly the order issued
to Interpol on the 30th day of April 2015 and such further or other
orders as to the court seems fit.
The affidavit in support of the motion states that there are serious
legal and constitutional issues that arise in the application and
which need to be proceeded with before the hearing in this suit is
proceeded with. It further added that section 43A of the Drug Control
Act is contrary to the provisions of sections 4 and 24 of the
constitution, and other law and does not uphold presumption of
innocence guaranteed by the constitution.
That the Drug Control Act does not offer an accused person an
opportunity to raise any defence because the said section does not
require a guilty mind and that it infringes upon the constitutional
right of the applicant’s right to be presumed innocent until proven
guilty which is a fundamental right of an accused person.
That under the constitution it is for the State to demonstrate
the applicant’s guilt and that position cannot be shifted to the
applicant by the state by the Drug Control Act as amended or any other
law.
That section 43A shifts the burden of the State to the applicant which
is unconstitutional and section 43A of the said Act exceeds the
powers conferred on the legislature by the 1997 Constitution of the
Gambia and its maintenance in the statutes of the Gambia are contrary.
That it is making objection on section 43A of the said Act now as a
preliminary point and cannot enter into plea whilst challenging the
Constitutionality of the law on which the charge is framed.
Shyben Madi and Sons Limited head office]]>
