Shyben Madi Limited challenges constitutionality of charges


By Rohey Jadama Lawyer Ida D Drameh, Amie N. D Bensouda,  Mrs. Hawa Sisay Sabally andShyben Madi and Sons Limited head office Y. H. Cox have urged the Banjul high court presided over by Justice Simeon Ateh  Abi that it is in the interest of justice that the summons be referred to the supreme court to determine whether section 43A of the Drug control Act 2010 is made in excess of legislativeauthority. They made this appeal in the Shyben A. Madi and Sons limited and co case. The accused persons are Shyben A. Madi and Sons limited 1st accused, George S Madi 2nd accused, Fatara Charles Victor Shyben Madi Fatara 3rd accused, George Madi  Jr.  Fatara 4th accused and Carmen Gomez Madi Fatara 5th accused. When the case was called yesterday, Ida D Drameh reminded the court that they have filed a motion in which they challenged the constitutionality of section 43A of the Drug Control Act 2010. She added that it is very important that the motion be granted. Barrister Drameh further told the court that she had served the Director of Public Prosecutions (DPP) with the copy of the said motion. Responding to the motion, the DPP said they are objecting to the motion. He further added that this is the first time they are seeing such a motion and that they are going to respond to it. Three days was given to the DPP to file his reply to the motion and 7 days to the defence to reply on points of law. The presiding judge adjourned the case till 7th of July for a ruling on the motion. The motion on notice filed by the lawyer on behalf of the company states that the applicant has the right to challenge the constitutionality of the provisions of section 43A of the Drug Control Act 2010 pursuant to the provisions of sections 4 and 5 of the constitution. It further added that the court refer the matter to the supreme court of the Gambia in accordance with the requirements of section 127(1)(b) of the constitution for a determination of whether or not the said section 43A of the Drug Control Act was  made in excess of legislative authority conferred by the constitution or any other law upon the National Assembly. The defence also urged the court to stay the charges in the amended information filed on the 21st day of May 2015 both of which relate to the offence created by section 43A of the Drug Control Act and further proceeding in this case pending the hearing and determination of the said reference to the Supreme Court. Furthermore, that all the processes and orders issued in relation to the said charges in this case be stayed particularly the order issued to Interpol on the 30th day of April 2015 and such further or other orders as to the court seems fit. The affidavit in support of the motion states that there are serious legal and constitutional issues that arise in the application and which need to be proceeded with before the hearing in this suit is proceeded with. It further added that section 43A of the Drug Control Act is contrary to the provisions of sections 4 and 24 of the constitution, and other law and does not uphold presumption of innocence guaranteed by the constitution. That the Drug Control Act does not offer an accused person an opportunity to raise any defence because the said section does not require a guilty mind and that it infringes upon the constitutional right of the applicant’s right to be presumed innocent until proven guilty which is a fundamental right of an accused person. That under the constitution it is for the State to demonstrate the applicant’s guilt and that position cannot be shifted to the applicant by the state by the Drug Control Act as amended or any other law. That section 43A shifts the burden of the State to the applicant which is unconstitutional and section 43A of the said Act exceeds the powers conferred on the legislature by the 1997 Constitution of the Gambia and its maintenance in the statutes of the Gambia are contrary. That it is making objection on section 43A of the said Act now as a preliminary point and cannot enter into plea whilst challenging the Constitutionality of the law on which the charge is framed. Shyben Madi and Sons Limited head office]]>

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