Justice Jaiteh Says Yankuba Touray Can Testify in His Murder Trial


By Yankuba Jallow 

Justice Ebrima Jaiteh of the Banjul High Court on Monday 24th August 2020, ruled retired Army Captain Yankuba Touray can testify in his murder trial.

Justice Jaiteh said Touray who is accused of murdering ex-Minister of Finance Ousman Koro Ceesay in June 1995 at his residence in Kololi with a pestle-like object, should be allowed to testify in the interest of fair hearing.

In this case, the prosecution called nine witnesses to prove their case whilst the Defense have opened their case and have called two witnesses.

On whether the Accused person should be allowed to testify in his defense after the first and second witnesses testified in his defense, Justice Jaiteh said as per Section 240 (4) of the CPC, the laid down procedure is when the prosecution closed its case, the accused is required if he or she desires, to give evidence on oath and thereafter to call his witnesses.

According to Justice Jaiteh, the accused person did not follow this laid down procedure because he called his witnesses and thereafter, desires to testify in his trial.

“The question that begs for an answer is whether Section 240 (4) of the CPC is a mandatory laid down procedure that the accused must testify first, before calling his witness(s) and failing which, the accused is estoppel from testifying in the trial?” Justice Jaiteh asked.

He said the operative word that needs interpretation in Section 240 (4) of the CPC is the word “shall” in the context of whether it is mandatory for the accused person to give evidence first before calling other witnesses.

Justice Jaiteh maintained that the word “shall” has been interpreted in case law authorities across the common law jurisdictions including the Gambia.

“Generally speaking, the word ‘shall’ implies a mandatory mandate but the word is capable of conveying either mandatory or permissive meaning, depending on the context in which it is used,” the Judge ruled. He said there is no legal effect created in Section 240 (4) of the CPC if the accused failed to testify before calling other witnesses.

“Therefore, Section 240 (4) of the CPC in my view is merely directory and not mandatory. And if the legislature had intended to make it mandatory, there would be a sanction for breaching Section 240 (4) of the CPC and this Court in its quest of doing substantial justice, cannot punish the accused person for a breach of duty when the act is directory. I hold the strong view that the use of ‘‘shall ’’ in Section 240 (4) of the CPC, does not connote mandatory obligation and therefore it is not absolute,” Justice Jaiteh maintained.

He said every person who is tried for a criminal offence, must be given full opportunity to defend himself / herself before a Court in person, and present his case and call witnesses in his defense; that failure of this on the part of a Court is a breach of natural justice and the rights of accused persons in criminal offences are protected by Section 24 of the 1997 Constitution of the Gambia.

“Section 24 of the Constitution is an entrenched fundamental human right Clause and the Courts are enjoined to respect and protect these rights,” he said; that it is for these and other reasons that the accused person must be accorded fair hearing and be allowed to testify in this murder trial.

“From the foregoing reasons and in the interest of fair hearing and natural justice, the accused person should be allowed to testify in this trial and the weight to be attached to his evidence shall be determined by this Court at the end of this trial. Accordingly, natural justice demands that a party must be heard before the case against him is determined,” Justice Jaiteh ruled.

According to Justice Jaiteh, in the Gambia’s constitutional jurisprudence, fair hearing rule occupies such a tall height that no rule of law or settled practice is allowed to torpedo it, save in established exceptions. He said the Court is under an obligation to give both prosecution and defense the opportunity of presenting their respective cases without let or hindrance from the beginning to the end, which will make impartial observer leave the courtroom, to believe that the trial has been balanced and fair on both sides.

“Accordingly, the application is hereby granted and the accused is hereby permitted to give evidence in this trial,” Justice Jaiteh ruled.

This ruling was predicated after an objection raised by Prosecution Lawyer Kimbeng T. Tah to the Defense application for the accused to testify in his murder trial. The objection was made pursuant to Section 240 subsection 4 of the Criminal Procedure Code (CPC). It was the submission of the Prosecution that the accused ought to testify first before calling other witnesses in his defense. The Prosecution argued that the purpose of Section 240 (4) of the CPC is to preserve the integrity of the evidence being provided in support of the accuse person’s defense. The prosecution further submitted that Section 204 (4) of the CPC is very clear and is a mandatory requirement that the accused ought to have testified first before calling other witnesses in his defense. They invited the Court to make a comparison between the words “shall” and “may”  and thus submitted that it is a trite principle of law that “may” connotes permissiveness, thereby allowing the Court to exercise its infinite discretion and whereas “shall” as provided in Section 240 (4), connotes strict requirement. The Prosecution put side by side Section 240 (4) to Section 241 of the CPC which provides for additional witnesses as a provision to the general requirement for the defense. Thus barring witnesses who are yet to testify, from being present in Court before testifying.

The Prosecution argued that the principles of law and natural justice presuppose that an accused person who desires to testify in his own defense would be eager to testify first; that the defense application for the accused to testify at this point is highly prejudicial to the justice of the case because he has already listened to the testimonies and cross-examinations of defense witnesses 1 and 2. The Prosecution further argued that an assumption must be held that any evidence offered by the accused person at this point would be tainted as a result of first-hand perception of cross-examination of defense witnesses 1 and 2. The prosecution said the principle of fair hearing is not infinite and ought to be read in the context and purview of the existing laws and statutory provisions. The Prosecution submitted that the word in the constitutional provision is “afforded” which means given an opportunity and that the accused had been afforded the opportunity to testify, but he refused and has forfeited the right to be heard and cannot allege an infringement of the right to fair hearing. The Prosecution further submitted that if the Court is minded to allow the accused to testify which they strongly oppose, the Court should make a determination as to the weight to be attached to the accused person’s evidence.

In responding to the objection raised by the Prosecution, defense Counsel Sisoho argued that what is relevant at this stage is the relevance of the evidence and not the weight that the Court would attach to the evidence adduced before it (the Court). Defense Counsel Sisoho submitted that the weight that will be attached to evidence shall be determined at the end of the trial, when all relevant evidence is placed before the Court and not otherwise. Lawyer Sisoho further submitted that the Court is guided by the Constitution of the Gambia, the common law principles, statutes and rules of the Court. He argued that both the Constitution and Statutes override the Criminal Procedure Code; that Section 24 (3) (d) of the 1997 Constitution overrides Section 240 (4) of the Criminal Procedure Code. He referred the Court to the House of Lords case of Ridge v Baldwin & Others (1962) A. C. 40, where the principle of ‘audi alteram partem’ rule was established and which is the right to be heard. Defense Counsel Sisoho submitted that the right to speak is an absolute right and the operative word under Section 240 (4) of the CPC is “shall” and it is not mandatory, but rather a discretionary provision. He argued that in the rules of interpretation, if “shall” was mandatory, there will be a proviso stating that if you fail to speak before your witness, your right to speak shall cease. Defence Counsel Sisoho further argued that there is no such proviso under Section 240 (4) of the CPC and submitted that the accused wants to testify in the interest of justice. Counsel Sisoho urged the Court to allow the accused to give evidence for the Prosecution to have the opportunity to cross-examine him. He said it will not be prejudicial if accused testifies in this trial.

In his reply on points of law, the prosecution submitted that the Constitution is the supreme law and interpretation of natural justice and morality must be guided by the Constitution as natural justice is not a fixed pillar. The prosecution referred this court to sections 19, 22 and 24 of the 1997 Constitution of The Gambia and argued that the right to fair hearing is finite and where the Accused has been afforded under the law and refused the same cannot be heard of infringement of the same rights. The Prosecution urged the Court to preclude the Accused from testifying in his defence.

The case was adjourned to Tuesday, 25th August 2020 for Mr Touray to begin his testimony.