By Yankuba Jallow
The State have filed an application seeking court order for a DNA test to be done on Bubacarr Keita (the accused person) to establish his relationship with the child.
The accused person, Bubacarr Keita alias Bobb Keita is standing trial for the offence of rape contrary to section 3 (1) of the Sexual Offences Act 2013. He pleaded not guilty to the charge. The prosecution opened their case in an attempt to prove the guilt of the accused person. In this regard, the prosecution filed an application for additional evidence by way of DNA medical examination to be conducted to ascertain the paternal relationship between the accused person and the child. However, Keita opposed the application for the DNA test to be done on him.
History of the Case
On the 29th April 2021, Senior State Counsel Alasan Jobe wrote to the Defence Counsel requesting Bubacarr Keita’s consent for paternity test to be done him to either exonerate him or show that he is the father of the child who still does not have a surname. Counsel Jobe said it is very important and a fundamental right for the child to have a surname and to know his biological father.
The paternity test can only be done if the accused person agrees to undergo the testing process because the process involves collecting blood samples from the accused persons.
On the 14th June 2021, the State Counsel wrote a follow up letter to the Defence Counsel representing the accused person reiterating the need for a DNA test to be done on the accused person. Counsel Jobe said the ultimate aim of the process is to arrive at a just decision, adding the DNA test will help them in achieving that objective.
Application for DNA Test
The State filed a motion before the court dated the 16th December 2021 seeking three orders from the court. The State wants the court to make an order directing the accused person (Bubacarr Keita) to undergo DNA paternal examination to determine his relationship with the child (name withheld). Also, the State wants the court to make an order appointing the Registrar of the courts or other officer of the court to facilitate through medical doctors to collect blood samples from the accused person and the child and transmit it to a medical laboratory for the purpose of DNA paternal examination. Finally, the State wants an order directing the Registrar of the courts or other officer of the court to collect or receive the DNA paternal examination results from the medical laboratory and transmit it to the court.
The motion was supported by a 20-paragraph affidavit sworn to by the mother of the child, who accused Keita of forcefully having sexual intercourse with her resulting in her pregnancy and consequently, she gave birth to the child.
The mother of the child (name withheld) said in 2019 she was living with his sister, Sainabou Mbye (the accused person’s wife), the accused person and his children (Fatoumata and Isha Keita) in the same house in a particular area within Kanifing Municipality.
The mother said a few days before the Koriteh of 2019, her sister who was married was away and this was when the accused person forcefully had sexual intercourse with her. She stated that at this time, her sister (the wife of the accused person) was busy at her hairdressing salon and it was where she spent the night.
The mother, also student, said she became pregnant and gave birth to the baby boy on 11 April 2020. She detailed that she informed the accused person through her family that he was responsible for his pregnancy but he denied responsibility of the pregnancy, adding that she was sure that she had sexual intercourse with him unwillingly. She said it was the first time she had sexual intercourse with a man.
The mother said the accused person is the biological father of her child but since he denied responsibility, it would be appropriate for the child and accused person to undergo DNA paternal examination to determine their paternal relationship. She stressed that without the DNA examination her child will be rendered fatherless and therefore, would cause him embarrassment in the society when he grows up and humiliation at school when he grows up.
She said it is in the interest of the wellbeing of her child to know his father to grow as a respectable person without which his moral values and self-esteem will be lowered in society.
She said it is a tradition in The Gambia that the child bears the family name of the father adding her child will be deprived from such family identity if the DNA paternal examination is not conducted to determine his true father. She added that only the paternity examination results will give her the necessary closure as to who is the real father of her child.
In response to the motion seeking a court order for DNA test, the Defence opposed the application and urged the court not to grant the request.
The affidavit in-opposition dated 5th January 2022 was sworn to by one Isatou Ceesay who got her authority from the accused person to make the statements contained therein.
She denied the narration of the alleged victim mother, adding that paternity is not the subject matter of the substantive trial before the court. She also denied the claim that without the DNA test the child and the accused person, the child won’t know his true father. She denied everything contained in the affidavit in support of the motion.
Ceesay said the application for the DNA examination is meant to embarrass the accused person and further delay the substantive hearing of the matter. She stated that the application is made in utmost bad faith and it will not be in the interest of justice if it is granted.
Ceesay stressed that establishing paternity has no bearing with the charge against the accused person. She said the application was not timely adding it is meant to delay the case while the accused person is held in detention. She finally said the accused person is facing charges of rape and the application is meant to further delay the trial.
Read our next edition for more on the Lawyers’ from both sides arguments in support and against the application for a DNA examination.
By Yankuba Jallow