By Rohey Jadama
Justice O. Ottaba of the Special Criminal Division of the Banjul High
Court yesterday, 11 May, 2016 denied bail to Mrs. Fatoumatta Jawara,
the chairperson of the women’s wing of United Democratic Party (UDP),
and 24 others.
The 24 other accused persons are Lamin Sonko, Bubacarr Gitteh, Baba
Ceesay, Modou Touray, Ebrima Janko Ceesay, Lamin Camara, AlhagieJammeh, Lansana Beyai, Lamin Jatta, Lamin Marong, Ebrima Jadama, Pa
Ousman Njie, Kekuta Yabo, Bubacarr Jah, Muhammed Jawneh, Bubacarr
Touray, Saderr Secka , Alhagie Fatty, Fatou Camara, Modou Ngum, Kafu
Bayo, Kalilou Saidykhan and Ebrima Jabang.
When the case was called, Lawyer Antouman Gaye, who headed the team of
defence lawyers, announced their representation for all the accused
persons, while Hadi Saleh Barkun, the Director of Public Prosecutions
(DPP), appeared for the prosecution with a team of state counsels.
Delivering his bail ruling, the presiding judge said the accused
persons are standing trial on 7 counts of ‘Unlawful assembly’,
‘Riots’, ‘Incitement of violence’, ‘Riotously interfering with
vehicles’, ‘Holding a procession without a permit’ , ‘Disobeying an
order to disperse from an unlawful procession’ and ‘Conspiracy to
commit felony’ and to which they all pleaded not guilty.
He continued that pursuant to section 99(1) of the Criminal Procedure
Code (CPC) and section 24 of the 1997 Constitution, the accused
persons applied for bail.
Justice Ottaba said the applicants’ affidavit in support of the bail
application states that the offences charged are all bailable and that
they have people who will act as sureties when granted bail. It also
states, he added, that when they are admitted to bail, they will not
interfere with witnesses and investigations.
The trial judge said the other accused persons deposed to the fact
that they have a medical problem and are the bread winners in their
respective families and do not have any criminal records. He said they
further submitted that the investigations are completed and the
charges proffered against them as well as the prosecution of the case
has commenced, adding that as accused persons they should be presumed
innocent.
On the issue of national security, the trial judge said the
applicants’ lawyers state that the charges did not state that it has
anything to do with national security and are therefore urging the
court to exercise its discretion and admit the applicants to bail.
Justice Ottaba said the prosecution in their response objected to the
bail of the applicants and told the court that if the accused persons
are granted bail they may flee the jurisdiction and may interfere with
witnesses and investigations. He said they further argued that there
is the likelihood that they will continue to carry out unlawful
protests again and that the security of the country is at stake,
adding that investigations are not yet completed and that the state
intends to proceed with the case expeditiously.
He said the state said the applicants have woefully failed to convince
the court in exercising its discretion, adding that the fact that they
are sick does not warrant the court to admit them to bail.
Justice Otaba said the applicant’s counsels in replying on points of
law, argued that since the accused persons are remanded by court
order, then the burden to justify bail cannot be placed on them. He
said they submitted that the court should consider the presumption of
innocence of the applicants and admit them to bail on reasonable
terms.
“I have perused the evidence in this case and I find and hold that the
offences were allegedly committed by the accused persons. In view of
these facts, circumstances, peculiarities and nature of the offence,
the severity of the punishment and prima facie case against the
accused persons, I hereby hold that this application lacks merit and
it is accordingly dismissed,” ruled Justice Ottaba.
At this juncture, Lawyer Gaye told the court that before adjourning
the case, they have an application to make. However, before counsel
Gaye made his application, the DPP interjected and told the court that
he has his witness in court and wished to be recorded.
Counsel Gaye in continuing with his application told the court that in
order to save the time of the court, they wished to adopt the
application in Ousainou Darboe and co case. The trial judge said that
is good but that let them also hear the opinion of the prosecutin on
the issue.
Replying to the application by the defence, the DPP expressed his
fears as to whether they can adopt the arguments of another case. He
further told the court that he is objecting to the adoption of the
proceedings of another case but not to the adjournment of the case.
“My lord, we agreed that the two cases are different even though the
charges are the same. We urged your lordship to stay off proceedings
pending the outcome of the application and we therefore urged you to
adjourn the case to Tuesday,” submitted the defence.
DPP Saleh Bakun, however, objected to the stay of proceeding and told
the court that he is conceding to the adjournment of the matter.
“My learned friend is not realizing that he is in the bar and not at
the bench,” responded Lawyer Gaye.
At this stage, Lawyer Amie Bensouda, also representing the defence,
informed the court that it made an order for the accused persons to be
allowed to have access to food but unfortunately, the accused persons
have reported to them that they are not allowed food from outside and
are also not being treated as remanded prisoners.
“They said whenever they complain of ill health they are only given
paracetamol. The accused persons are remanded by this court; they
are not convicts. Remanded prisoners are not fed by the state but that
they rather depend on the food from outside. Let the court make orders for
their rights to be respected,” said Lawyer Bensouda.
Responding to defence counsel Bensouda, the DPP said he had consulted
the prison officers yesterday and that he said they have complied with
the said order.
When Mr. Bojang, a prison officer, was called to report to the court,
he said that they received the order on Tuesday and have started
complying with it yesterday.
At this stage, the presiding judge intervened and told the prison
officer to allow the accused persons to everything that is beneficial
to them and that personal prejudices should not be used on the accused
persons. He said they should be presumed innocent until proven guilty.
Justice Ottaba also ruled that the outcome of the application of
Darboe and co-case ruling on whether or not to refer counts 5 and 6 to
the Supreme Court will determine the application of this case.
Subsequently, the case was adjourned to Tuesday, 17 May, 2016.
