Monday, January 18, 2021

Are there Unbailable Offences Under Gambian Law?

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The 1997 Constitution of the Gambia has made all offences bailable in the Gambia.

In fact, this is what made it possible for the leader of the UDP to be granted bail while charged with murder. The then Attorney General claimed that murder charges were unbailable. He relied on statutes rather than the Supreme law of the land. We held the contrary on the following grounds.

First and Foremost, Section 19 of the Constitution, the supreme law of the land is explicit in its protection of liberty.

It states ”Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.”

What then are the grounds and procedures ?

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Subsection 2 of section 19 reads: “Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she understands, of the reasons for his or her arrest or detention and of his or her right to consult a legal practitioner.

(3) Any person who is arrested or detained –

(a) for the purpose of bringing him or her before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours.”

It should now be clear that a person should only be arrested based on reasonable suspicion and must be taken before a court within 72 hours.

What should happen when he or she is brought before a court?

Subsection 4 of Section 19 reads : “Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his or her having committed or being about to commit an offence, he or she shall not thereafter be further held in custody in connection with those proceedings or that offence except upon the order of a court.”

Hence no one on trial could be detained without the order of the court.

Could a detained person be released on bail by the court?

Subsection 5 of Section 19 reads: “If any person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.”

Hence , the courts have absolute powers to determine whether a person is to be released unconditionally or conditionally ,to ensure their appearance at a later date.

Fundamentally, no law should bind the hands of the courts in delivering justice.

This is why Section 24 of the Constitution Provides for the independence of the courts and fair trial.

It states: “any court or other adjudicating authority established by law for the determination of any criminal trial or matter, or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial:

(a) if any person is charged with a criminal offence, then, unless the charge is withdrawn; or

(b) where proceedings are commenced for the determination or the existence of any civil right or obligation,

the case shall be afforded a fair hearing within a reasonable time.”

How is the Court to view the person on trial?

Subsection 3 of Section 24 states: “Every person who is charged with a criminal offence

(a) shall be presumed innocent until he or she is proved, or has pleaded, guilty;”

It is this presumption of innocence which makes bail universal in application and should be based on those conditions that would ensure the appearance of the accused person as and when required by the court for trial.

Bail should be denied only if conditions that would ensure appearance for trial cannot be secured.

The determination of the adequacy or inadequacy of the conditions rest entirely on the prerogative of the administrators of the courts.

No legal mind should seek to justify any draconian provision which seeks to rob the courts the powers to grant bail by statutory provision which violates the constitution and should be declared null and void by the Supreme Court.

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