By Rohey Jadama
Justice O. Ottaba of the Special Criminal Division of the Banjul High Court yesterday, 5 May, 2016 denied bail to Mr. Ousainou 
Darboe, the leader and Secretary General of United Democratic Party (UDP), and 19 other members of his party.
When the case was called, Lawyer Antouman Gaye, who headed a team of defence lawyers, announced their representation for all the accused persons, while Hadi Saleh Barkun, the Director of Public Prosecutions (DPP), and a team of state lawyers appeared for the prosecution.
Delivering his bail ruling, the presiding judge said the accused persons are standing trial on 7 counts of unlawful assembly, riots,
incitement of violence, riotously interfering with vehicles, holding a procession without a permit , ‘disobeying an order to disperse from an unlawful procession and conspiracy to commit felony, to which they all pleaded not guilty to.
He said pursuant to section 99 of the Criminal Procedure Code (CPC) and section 24 of the 1997 constitution, the accused persons applied for bail.
Justice Ottaba said the applicants’ affidavit in support of the bail application states that the offences charged are all bailable and that they have people who will act as sureties when granted bail. It also states, he added, that when they are admitted to bail, they will not interfere with witnesses and investigations.
The trial judge said the other accused persons deposed to the fact that they have a medical problem and that they are the bread winners in their respective families and do not have any criminal records. He said they further submitted that the investigations are completed and charges proffered against them and prosecution has commenced, adding as accused persons they should be presumed innocent.
On the issue of national security, the trial judge said the applicants’ lawyers state that the charges did not state that it has anything to do with national security and that they urged the court to exercise its discretion and admit the applicants to bail.
Justice Ottaba said the prosecution objected to the bail of the applicants and told the court that if the accused persons are granted bail they may flee the jurisdiction and may interfere with witnesses and investigations, arguing that there is the likelihood that they may commit the offences again.
“The state in their affidavit in opposition further states that going through the affidavit in support; the applicants have woefully failed to convince the court in exercising its discretion. It states that the fact that they are sick does not warrant the court to admit them to bail because there are medical facilities in prison,” said the judge.
Justice Otaba said the applicant’s counsels in replying on points of law, argued that since the accused persons are in detention, then the burden to justify bail cannot be placed on them. He said they submitted that the court should consider the presumption of innocence of the applicants and admit them to bail on reasonable terms.
“In view of these facts, circumstances, peculiarities and nature of the offence and the severity of the punishment and prima facie case against the accused persons, I hereby hold that this application lacks merit and it is accordingly dismissed,” ruled Justice Ottaba.
At this juncture, Barrister Gaye told the court that they have an application to make and that he wished to call upon his colleague, lawyer Hawa Sisay-Sabally, to make the application.
In her submission, Lawyer Sisay-Sabally told the court that it is their submission that counts 5 and 6 fall under the Public Order Act and that Section 127 of the Constitution gives power to the Supreme Court of the Gambia to determine any law that was made in excess of power.
Barrister Sisay-Sabally further told the court that once any question is raised and there is no jurisdiction, it should be automatically transferred to the Supreme Court for determination.
She further argued that the Public Order Act is a colonial law and referred the court to sections 4 and 6 of the Constitution.
The defence counsel said every citizen should defend the Constitution and that it is in this defence that the accused persons are asking the court to refer counts 5 and 6 to the Supreme Court to determine their constitutionality and whether they were made in excess of power.
She further told the court that the questions to be referred to the Supreme Court could be formulated as follows:
“Whether section 5(2) and (5) of the Public Order Act 1961 cap 2201 volume 4, as it relates to the requirements of permit or license from the Inspector General of Police, is consistent with section 25 of the 1997 Constitution which guarantees freedom of speech, expression and assembly?”
“Whether section 5 of the Public Order Act was made in excess of powers vested on the national assembly?”
“Whether the said section as amended is null and void by virtue of section 4 of the 1997 constitution of the republic of the Gambia?”
Concluding, Lawyer Sisay-Sabally said “We are therefore praying that this court refer those counts with questions that have arisen and to stay off the prosecution of these counts. In this jurisdiction, the issue of referring questions has been done severally and I wish to refer the court to the IGP vs. Sabally, where I was counsel. We are not asking the court to stay off proceeding of this case but rather to stay off proceeding of counts 5 and 6 and it is not a matter of ruling. It should be referred to the supreme court.”
In his response to the application, the DPP objected and told the court that he needed more time to respond to the application and that as such he is applying for an adjournment.
“I am very disappointed that the DPP is seeking for an adjournment to reply to this application and the accused persons are denied bail. He has his witness in court, so let him call him so that we can proceed,” said Lawyer Gaye.
The DPP responded that the defence team brought this application because the accused persons were denied bail and that he is questioning why the defence was waiting for this moment to raise this issue.
“The statement of the DPP is wrong. In fact, we have filed a written submission and if my lord had rejected to our oral submission, we would have given that to the court,” said lawyer Gaye.
However, the trial judge adjourned the case to 9 May, 2016 at 12noon for continuation of hearing.
