Judge Refuses Sainabou Mbaye & Co. Bail Application

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By Mariama Marong / Kemeseng (Kexx) Sanneh

Justice Sidi K. Jobarteh, the sitting vacation judge of the High Court on Thursday 11th August 2022, refused to grant Sainabou Mbye, Cherno Mbye and Kibili Dambelly bail.

The trio’s bail application sought the unconditional release of the applicants (Sainabou Mbye, Cherno Mbye and Kibily Dembelly) from the State Central Prison at Mile 2, for them to be admitted to bail on such terms and orders that the court may deem fit to make.

However, their application was opposed by the Prosecution on 9th of August 2022.

Justice Jobarteh said the bail application at this stage lacked merit as she dimissed it, and accordingly refused the bail application.

Justice Jobarteh said taking into consideration the provisions of the law, the applicants (Sainabou Mbye and the two others), were not only arraigned within a reasonable time but their appearance in court was done within a reasonable time that is justifiable in a democratic society.

“There has not been any delay in the criminal justice of the applicants that is not justified by any good reason and in fact, they have been brought to court promptly and within reasonable time as stipulated by the Constitution,” she said. She also ruled that the rights of the applicants under the Constitution have not been infringed adding that their detention is in accordance with the law.

She said the State requested from the court two weeks to enable them file the indictment which is due to expire next week.

“The applicants cannot continue to be held in custody without being indicted at the high court and their continuous detention in remand after the expiration of the timeline stipulated by the court, will be unjustified,” she said.

Justice Jobarteh stated that if the State fail to file an indictment after next week, the applicants rights to presumption of innocence until proven guilty is guaranteed under Section 24 (3) (a) of the 1997 Constitution. She ordered the State to file a bill of indictment on or before the 19th of August 2022, failing which the applicants shall be automatically granted bail with the following terms and conditions:

The applicants shall be granted bail in the sum of 1,000,000 ( one million Dalasi) each; provide one Gambian surety each in the like sum who must swore to an affidavit of means and the sureties shall deposit with the Principal Registrar of the High Court, original copies of their tittle deed each in respect of their property (freehold or leasehold), valued at not less than one million dalasi, which valuation must be done by Government recognized estate valuer on a date not earlier than the 19th of August 2022.

In addition, Justice Jobarteh said the Principal Registrar of the High Court shall verify and under her hand, approve the title of the properties and valuation reports deposited by the sureties before the release of the applicants from custody. She said the applicants are also required to submit their travel documents and shall not travel out of the country without leave of court. She said they shall be reporting to the police headquarters in Banjul every two days between 9 am to 10 am, pending the filing of an indictment against them. She also ordered that the applicants when granted bail, shall keep the peace and should not commit any offence.

The Judge ruled that the bail shall lapse after 60 days from the date they are release from custody, if the State fails to file a bill of indictment. She said the statements in the affidavits of the applicants relating to inhumane and degrading treatment as contained in paragraph 15 of the affidavit in-support of the originating summons, have been struck out due to non-compliance with Section 90 of the Evidence Act, and further stated that the argument of counsel for the applicants have been disregarded.

She said Exhibit MM1 (the medical report) that is attached to additional affidavits in-support regarding the medical condition of the second accused person (Cherno Mbye), and written in French and not translated into English yet, cannot be relied on by the court.  Similarly, she said a medical report from West Field Clinic attached does not bear any name and has not been signed by any medical personel. She therefore held that this does not have any link to the second applicant (Cherno Gaye) adding that the court is minded not to rely on it.

On the other hand, she said the Director of Prisons should take Cherno Mbye to hospital whenever he complaints of health issues.

Justice Jobarteh said the applicants were charged and arraigned at the Magistrate’s court on the 26th July 2022, where they were remanded pending their appearance before the high court. She said the detention of the accused person was done within the dictates of the law and it is justifiable. She added that the court cannot also shut its eyes to the fact that their arrest and arraignment was as a results of the charge of manslaughter which has been transferred to the high court, due to nature of the charge against them. She said there was no delay in bringing them before the courts because their arrest and arraignment before the court both happened within a reasonable time.

At the Kanifing Magistrate’s Court, the three were charged with manslaughter contrary to Section 186  of the Criminal Code.

According to the particulars of their offence, the three accused persons on or about the 3rd day of July 2022, by unlawful act or omission amounting to culpable negligence, left one Muhammed, a two year old resident of Brusubi inside a car causing his death.