By Kemeseng Sanneh (Kexx)
Principle Magistrate Muhammed Krubally of the Banjul Magistrate’s Court on Thursday held that the police relied on the wrong section of the law to charge EbrimaDibba, a member of the United Democratic Party (UDP).
The ruling concerned the argument of lead defence counsel, Senior Lawyer Bory S. Touray, who said the section Dibba is charged under only provides a definition and did not create any punishment for any offence. Lawyer Touray said Ebrima Dibba was charged under Section 51(a) of the Criminal Code, which is a definition section and not appropriate for charging. He submitted that the charge was incompetent and asked the Magistrate to strike it out. He contended that Section 52 should have been used instead.
The prosecution, led by Commissioner Abdoulie Sanneh, defended the charge and countered by arguing that the charge under Section 51(1)(a) was valid, as it referred to Section 52 for punishment. They argued that the two sections together constituted a valid charge.
In his ruling, Principle Magistrate Krubally ruled in favour of the Defence. He noted that Section 51(1)(a) was a definition section, while Section 52 outlined the offences of sedition and the corresponding punishments.
Magistrate Krubally referred to a previous case involving Abdoulie Conteh against the State, where it was established that the correct section for charging a person with an offence should be the offence-creating section.
“It is trite law that the correct section for charging a person with an offence is the offence creating section. This is statutorily provided for in Section 113 (a) (1) and (II) of the Criminal Procedure Code,” he said.
The Magistrate said it is fundamental for any authority vested with the powers to press a charge against anyone to be very cautious and conscious of the said offences when charges are to be preferred against anyone, because at the end of the day, the person against whom the said offences are to be preferred will be judged by the legal authorities for such and by extension the public in which case those impatient may characterise him in negative light.
Magistrate Krubally concluded that instead of dismissing the case, he would order the prosecution to amend the charge, and the accused to take his plea accordingly.
After the ruling, Superintendent Almameh Manga took the stand and sought to amend the charge sheet orally under section 169 (1) of the Criminal Code with the permission of the court.
“Your Worship in the light of the Court ruling, we are applying under Section 169 of the criminal procedure code to amend the Statement of offence from Section 51(1) a to be substituted by Section 52 1 b and c of the criminal procedure code. We urge this honourable court to grant our application,” Manga submitted.
There was no objection from the defence Counsel Abdul Aziz Bensouda
In his ruling, Magistrate Kurubally said oral application of the prosecution under section 169 (1) of the criminal code to amend section 51 (a) of the Criminal code which the accused has been charged to be amended with Section 52 (1) b and c not objected to by the defence counsel, prosecution’s application to amend same is granted according to section169 of the criminal procedure code and the accused can now take his plea.
“Either the accused or his Counsel can inform the court of the position or plea of the accused as per the charge before the court,” said Magistrate Krubally.
Ebrima Dibba did not take his plea. Lawyer Bensouda informed the court that Ebrima pleaded not guilty.
Superintendent Manga told the court that it is Ebrima Dibba who should take his plea before the court and not his lawyer.
Prosecutor Manga argued that, under the criminal procedure code, once the charge is amended the charge sheet should be read to the accused to react. He stated that the charge should be read to the accused to take his plea and not his lawyer. He submitted that it is not enough for the Lawyer to inform the court of the plea of the accused person when the accused was already in court.
Magistrate Krubally said the position of his court is that the lawyer is the mouthpiece of the accused person and his information about the plea of the accused person was enough.
Manga further restated that plea-taking is very important in any trial and since the accused is present, it should be the accused who should take the plea, not his lawyer.
Principal Magistrate Krubally repeated his statement saying the Counsel for the accused is the mouthpiece and the position of the court is that the counsel can speak on behalf of the accused since the accused understands English and heard the charge.
Manga asked the court to rule on the matter. The. Magistrate ruled and reiterated the same wordings.
The case was adjourned to the 2nd of July at 10 am for the case to commence.
