By Kemeseng Sanneh (Kexx)
The Gambian Ministry of Justice has filed a motion challenging a High Court order that compelled three senior government officials to testify in a sensitive criminal case. The State is seeking both a stay of execution and a reversal of the June 10, 2024, ruling, which directed that the officials appear before the court.
The motion was filed on June 16, 2024, before Justice Ebrima Jaiteh, who issued the original order summoning Government Spokesperson Ebrima G. Sankareh, National Security Adviser Babucarr Jeng, and Deputy Inspector General of Police Modou Sowe to testify as witnesses in the ongoing trial of Ousainou Bojang, the first accused person in the case. Bojang is standing charge for murder and terrorism act. The prosecution accused him of killing two policemen and left life threatening injuries on a policewoman.
At the heart of the legal fight is the State’s contention that the subpoena was issued without sufficient justification and that compelling the three officials to testify would be “premature, irregular and prejudicial” to the prosecution’s case.
In an affidavit supporting the motion, sworn by Fatou Waggeh, a clerk at the Attorney General’s Chambers, the State argued that the ruling in favor of the defense was flawed. The State had already filed an appeal at the Court of Appeal on June 12, 2024, and now seeks to stay the ruling until the appellate court delivers its judgment.
The affidavit claims the appeal raises “substantial and arguable issues of law” and warns that if the stay is denied, any eventual appellate ruling in the State’s favor would be meaningless.
“The refusal to grant this stay will render nugatory the benefit of any judgment of the appeal,” the State argued, insisting that the balance of convenience lies with the government and that the defense would suffer no prejudice if the execution of the ruling is temporarily halted.
The State’s Notice of Appeal challenges the entirety of the High Court’s June 10 ruling and outlines four key grounds:
Ground One: The State alleges that Justice Jaiteh erred in law by granting a request to compel testimony from public officials who neither made statements to investigators nor were shown to have direct involvement in the matter. The State contends the judge failed to assess the vagueness of the application and granted the subpoena without any legal basis.
Ground Two: The State accuses the trial judge of misinterpreting defense counsel Lamin J. Darboe’s application, which merely sought to call individuals who had made “very important” statements. Yet the judge ruled that they had “vital information” without such evidence on the record.
Ground Three: The State argues that the judge relied solely on discretionary powers without requiring the defense to establish the evidentiary value of the testimony, while also unfairly shifting the burden onto the prosecution to prove prejudice.
Ground Four: The ruling is described as “perverse and erroneous,” with the State asking the appellate court to set aside the order and declare it ambiguous and legally unsustainable.
The State’s application also calls on the High Court to direct its registry to urgently transmit the record of proceedings to the Court of Appeal to avoid further delays.
Opposing the State’s motion, defense counsel Lamin J. Darboe filed an affidavit sworn by Ebrima Charty, a clerk at Dabanani Law Chambers. The defense strongly refuted the State’s claims and accused the prosecution of attempting to stall the trial process.
“The application is frivolous and intended to delay justice,” the affidavit reads, asserting that the officials’ testimonies are necessary and that denying the ruling would be contrary to the principles of fair trial.
The defense maintains that the officials, though not formally part of the investigation, possess crucial knowledge and insights that could materially assist the court in determining the truth.
Justice Jaiteh is expected to deliver his ruling on the State’s motion on Tuesday, June 18, 2024. His decision will determine whether the three senior officials will take the stand — a move that could set a precedent for executive accountability in a criminal courtroom.
