By Yankuba Jallow
Counsel for third accused person in the trial of the former employees of the National Intelligence Agency (NIA) Lawyer Ibrahim Jallow, raised an objection in court that the amended charge sheet against his client is defective and that his client ought not to take his plea.
Prior to him urging the court to strike out the charges because they are not in conformity with the provision of Section 175D of the Criminal Procedure Code (CPC), he read the provision of Section 175D of the CPC as: ‘‘the Attorney General or any member of his professional staff designated by him or her shall, by appending his or her signature thereto, authenticate an information and summary of evidence.’’ He said in the matter before the Court, the provision has not been complied with and that the Constitutional as well as legal mandate of the Attorney General, cannot be taken by Lawyer Antouman AB Gaye.
“The signing of the amended charge sheet by Antouman AB Gaye for the Attorney General was not properly done,” he said. He substantiated his argument saying Lawyer AB Gaye is a private prosecutor and anything he has to act upon, must be done in consultation with the Attorney General.
“A private prosecutor cannot do anything by him/herself, because the provision of the law specifically provided that the duty should be done by the Attorney General” he said.
He reiterated that the amended charge sheet should have been signed by the Attorney General or his professional staff. He said the law further provided that in case the Attorney General or his professional staff failed to sign any document, the public prosecutor can raise the point in court and provided that the Attorney General or his professional staff stance are wrong, the court can order for them to sign. He provided two authorities to the court which were the case of Regina v Morais [1988] and also the Black Stones Criminal Practice [1992] Edition 1 and 2. He argued that the law provides for the Attorney General to sign, not Antouman AB Gaye.
The Attorney for the first accused person, Lawyer CE Mene, associated himself with Lawyer Jallow’s submissions and added that the amended charge sheets were signed by a person unknown to the court as well as the summary of evidence. He argued that Section 175D of the CPC is very clear in its provision that it places the Attorney General or any member of his professional staff designated by him, to sign by himself any information.
“Lawyer Gaye is not a professional member of staff of the Attorney General and the information he provided are not in compliance with our laws, thereby the information shall be null and void” he said.
Gomez for the second accused as well as U. Achigbue for the sixth accused person all associated themselves with the submissions of Lawyers Jallow and Mene.
The Senior Lawyer, Antouman AB Gaye in his objection said Counsel I Jallow did not give the court the facts of his authorities physically in court; that Counsel Jallow does not know the facts of the case he has cited.
He submitted that Section 175D of the CPC cannot be read in isolation and cited Section 175B which states: “the Attorney General, or a person authorised by him or her, may commence criminal proceedings in the High Court by filing with the Registrar of the High Court, Information which shall be in the form of an indictment, and shall state in writing, the charge against the accused and also a summary of evidence which shall comprise a list of the witnesses whom the prosecution proposes to call at the trial and summary of the evidence to be given by each witness. He told the court that they were authorised by the Attorney General to commence criminal proceedings. He argued that he is not a private prosecutor but a public prosecutor by virtue of the Attorney General’s fiat, under Section 65 of the CPC. He cited the provision of Section 65 of the CPC; that they have a written authority as required.
He highlighted that the defence has failed to look at the last line of the charge sheet which reads ‘public prosecutor’. He urged the court to turn down the defences’ applications and allow the accused persons to take their plea.
Counsel I. Jallow in his reply on points of Law held that, Section 175B does not mean a person without authority can commence criminal proceedings. He said Sections 175 B and D cannot be read together because the two provisions deal with different issues; that one deals with signing whilst the other deals with the commencement of a criminal trial. He said Section 65 of the CPC and Section 175 D do not commensurate saying, they are not in conjunction with each other. He said the issues raised by Counsel Gaye, do not comply with the provisions of the CPC and urged the court to throw away his objections.
Counsel Mene said for Counsel AB Gaye to rely on the provision of Section 175 B, cannot avail him anything because it is a general provision and it is dealing with authentication. He quoted Section 175 A as: “whenever a person is charged with an offence which is not being tried summarily before a subordinate court, the procedure specified is Sections 175B, 175C and 175D of the CPC must be followed”.
He emphasised on the phrase ‘must be followed’ and added that this cannot be dodge away from. He brought in a principle of law that the law is clear; that whenever an issue arises between a general provision of a statute and a specific provision, the specific provision prevails. He held that the appointment of AAB Gaye as a public prosecutor does not make him a professional staff of the Attorney General.
The presiding judge, Justice Kumba Sillah- Camara of the High Court dismissed the applications of Lawyers Jallow and Mene. She held that Section 175D does not oust the powers of a public prosecutor acting under the control of the Attorney General to institute charges. She said the state prosecutors were appointed by the Attorney General in accordance with Section 166 of the CPC and that she concurs with Counsel Gaye’s objection that Section 175D cannot be read in isolation.
Prior to their intensive arguments on points of Law, CE Mene told the court that the defence counsels were served with amendment charge sheets, but were never served with the additional exhibits and summary of statements by the witnesses. He relied on certain provisions of the CPC which he read in court. He applied for the copies of the documents the prosecution intends to rely on during the trial and copies of witness statements, to be served to them.
Lawyer AAB Gaye for the State argued that the defence is only entitled to the exhibits but not the witness statements and that the State will serve them with the witnesses’ voluntary and cautionary statements. He noted that some of the exhibits are in audio whilst others are in video format, so that if the defence provide them with a hard disk, they will serve them with exhibits saying, ‘‘we have nothing to hide’’.
CE Mene responded that AAB Gaye has missed the position of the Law regarding that matter and he relied on section 237 (2) of the CPC. He said in the amended charge sheet, there is an additional 19 witnesses and that during the first charge sheet, they were served. He questioned what will make the position of law on the first charge sheet different with the amended charge sheet and urged the court to order for the prosecution to provide them with all their requests.
The Court held that the prosecution should provide the defence with all they pleaded for, as it is in accordance with the Laws.
The State was represented by Lawyers Antouman AB Gaye, Lamin S Camara, Y Senghor and Y Mendy whilst CE Mene, E.E. Chime and B. Secka represented the 1st accused person, P. Gomez for the 2nd, I. Jallow for 3rd, S. Kenedy for the 4th, 5th, 7th and 8th, U. Achigbue for the 6th and D. Darboe for the 9th.
The accused persons are: Yankuba Badjie, the former Director General Louis Gomez, former Deputy Director, Saikou Omar Jeng (alias Sir Jeng), the former Director of Operations, Haruna Susso, Yusupha Jammeh, Tamba Masireh, Lamin Darboe, Baboucarr Sallah, and Lamin Lang Sanyang. These men are facing trial at the Banjul High Court presided over by Justice Kumba Sillah-Camara.
They face charges of murder, conspiracy to commit felony for causing grievous harm, accessory after the fact to murder, forgery, making documents without authority, fabricating evidence with intent to mislead a tribunal in judicial proceedings, disobedience to statutory duty, abduction in order to murder and finally abduction in order to subject person to grievous harm. The charges are 25 and the accused persons are yet to take their plea. The case resumes today, Thursday 26th October 2017, at 12:00 pm.
