Faraba Banta is still fresh in the minds of the people. After the Kanilai incident Faraba Banta marked the second bloodiest incident under the Barrow administration. The establishment of a commission of inquiry did contribute to calming the situation pending the results of the inquiry.
The traumatized community wants the problem to be contained. The state needs to explain how that could happen under the law. The law has provided for the way a case in court could be discontinued. This is a power vested in the prosecution under the leave of the Attorney General. Hence if any appeal is made it is important for Foroyaa to explain when the prosecution under the leave of the Attorney General could discontinue a case in court and when the president could pardon convicted prisoners.
Section 85 subsection (1) of the Constitution provides for the discontinuation of proceedings. It states:
“(1) 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 –
(a) to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia;
(b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority:
(c) to discontinue at any stage before Judgement is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority:
Provided that the Director of Public Prosecutions shall not-
(i) take over and continue any private prosecution without the consent of the private prosecutor and the court; or
(ii) discontinue any private prosecution without the consent of the private prosecutor.”
It is therefore clear that discontinuation of cases is the handy work of the prosecution under the direction and control of the Attorney General.
On the other hand, once a person is convicted the President has the mandate to grant pardon. Section 82 subsection (1) of the Constitution states:
“(1) The President may, after consulting the Committee established by subsection (2)-
(a) grant to any person convicted of any offence a pardon either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;
(c) substitute a less severe form of punishment for any punishment imposed on any person for any offence;
(d) remit the whole or any part of any punishment imposed on any person for such an offence or any penalty otherwise due to the Republic on account of any offence.”
Hence in issuing statements, state House should rely on the letter and spirit of the Constitution in order not to err in its judgment. Powers to discontinue proceedings lie with the prosecution under the direction and control of the Attorney General. They are the ones who could be requested to discontinue any proceedings.
The powers of the President to pardon come after conviction. This is the language of the law and that of precedent. This is how matters stand.
