By Kemeseng Sanneh
The Gambia’s Court of Appeal has overturned a high court ruling in a high-profile murder case, determining that the defendant, Yusupha Bodjan, was a minor at the time of the alleged offense. The court has ordered that the case be transferred to the Children’s Court for proper adjudication.
Bodjan, charged with murder in the High Court in October 2021, was accused of committing the crime on September 12, 2021. The case initially came before the high court in June 2022, and a complex legal battle over Bodjan’s age would ultimately shape the outcome.
In July 2022, defense counsel for Bodjan raised concerns about his age, asserting that he was 17 years old at the time of the alleged crime. In response, the court ordered an age determination examination. A report issued in October 2022 indicated that Bodjan was 19 years old as of the examination date, August 11, 2022.
However, Bodjan’s mother provided a birth certificate that listed his birth date as November 20, 2005. This document was disputed by the court, and the judge ordered further testimony from the doctor responsible for the age report.
In November 2022, the dental surgeon who conducted the age assessment testified that he had used a visual method based on the eruption of teeth, a technique with a margin of error of six months.
The trial court, after hearing arguments from both defense and prosecution, ruled in May 2023 that Bodjan was 18 or older at the time of the alleged incident, dismissing the birth certificate as unreliable. The judge cited the absence of the accused when the biometric certificate was obtained as a key factor in this decision.
Dissatisfied with this conclusion, Bodjan filed an appeal in November 2023, challenging the trial court’s judgment. The Court of Appeal, after reviewing the case, found that the trial court had erred in its interpretation of the age determination evidence.
The appeal court concluded that, given the margin of error in the expert’s testimony, Bodjan’s age at the time of the alleged offense could have been between 17 and a half and 18 and a half years. The court also invoked the principle of resolving doubts in favor of the accused, citing the rule of lenity, which dictates that ambiguities in criminal law should be construed in the defendant’s favor.
Further, the Court of Appeal referenced a recent precedent in Mariama Conteh v The State, which established a margin of error of two years in age assessments based on dentition. Applying this guideline, the court determined that Bodjan could not be definitively classified as 18 or older at the time of the crime.
In its ruling, the Court of Appeal found that the lower court’s decision was unsupported by sufficient evidence and therefore invalid. The appeal court overturned the ruling, declaring that Bodjan was a minor at the time of the incident. It also held that the lower court lacked jurisdiction over the case and ordered that it be transferred to the Children’s Court for proper adjudication.
The judgment was delivered by Hon. Justice Basiru V. P. Mahoney, who wrote the lead opinion, with Hon. Justice N. Salla-Wadda and Hon. Justice Kumba Sillah-Camara concurring.
