By Yankuba Jallow
The state lawyer in the trial of the leaders of 3 Years Jotna has told the court that they are objecting to the bail application made by the defence lawyers.
Lawyer Patrick Gomez told Justice Aminata Saho-Ceesay of the Banjul High Court that they are opposed to the bail application made by the lawyers for the leaders of ‘3 Years Jotna’.
The accused persons are facing trial on unlawful assembly, rioting after proclamation and rioters demolishing structures. They are yet to take their plea. They were first arraigned before the Kanifing Magistrates’ Court and the matter was adjourned and transferred to the High Court because the lower court lacks the power to try offences that attract life imprisonment sentences upon conviction.
Appearing before the high court on Tuesday, 11th February 2020, Rachel Y. Mendy informed the court they have filed a 26- paragraphed affidavit in support of their bail application.
She said the 4- paragraphed affidavit in opposition by the prosecution is defective because it contravenes Schedule One of the Evidence Act which according to her is a mandatory provision. He averred that the prosecution is conceding to their bail application as she told the court that there is nothing in the affidavit in opposition to their bail application that mentioned that the prosecution is objecting to the application.
“There is nothing in the affidavit in opposition denying the averments in our affidavit in opposition. The State is deemed to have admitted all the averments in the affidavit in support,” she said.
She said the last paragraph of the affidavit in opposition by the prosecution, paragraph four, it is mentioned that the bail application has been overtaken by events.
“The averment that the bail application has been overtaken by events has no basis in law,” she said.
She submitted that once a person is in custody, he or she can bring as many bail applications as possible irrespective of what stage the proceedings is. She told the court the averment by the prosecution does not mean they are opposing to the bail application. She urged the court to grant the accused persons bail saying there is nothing in the prosecution’s affidavit that opposed bail and therefore, they are conceding.
She submitted that the accused persons are presumed innocent until they are proven guilty and the burden of proving that the accused persons are not entitled to bail is on the prosecution.
“The prosecution in this case have failed to discharge that threshold. They have failed to provide this honourable court any fact or evidence which will convince this honourable court to refuse bail,” she concluded.
She said there is no formal indictment before the court. She said the purported indictment by the prosecution has not been given effect by the court as required by sections 115 and 116 of the Evidence Act. She said the two sections of the Evidence Act provide that indictments should be certified. She said once a document is filed and certified, it becomes a public document and it is from there the court can give effect to it.
“The court cannot give effect to photocopies of documents as originals,” she said.
She said section 87 of the Evidence Act is a general provision while section 93 (which is the First Schedule) is a specific provision and it is a mandatory provision. She relied on the recent Supreme Court case of Ya Kumba Jaiteh versus the Clerk of the National Assembly and others which said general provisions are inapplicable where there is a specific provision.
Lawyer Lamin S. Camara said the application for bail was premised on sections 19 (5) and 24 of the Constitution as well as section 99 (1) of the Criminal Procedure Code. He said the 1997 Constitution provides for the protection of liberty and dignity of people.
“One of the cardinal principles of our criminal justice system is the presumption of innocence regardless of the indictment before any court. This cardinal principle is enshrined in section 24 (3) of the Constitution. The presumption of innocence is only taken away when it is rebutted and upon conviction,” he said.
He told the court that the offences in respect of which the accused persons were arrested, detained and arraigned were all bailable offences.
He said the accused persons, if granted bail, will not jump bail and they will avail themselves to any court to stand trial. He added that they will not interfere with the witnesses and above all they will not interfere in the investigation of this matter (which according to Lawyer Camara is already concluded).
He said the affidavit in opposition by the prosecution has only five paragraphs and it does not make reference to any of the averments in the affidavit in support of the bail application.
“The affidavit in support has not been contradicted and therefore, they are deemed to be admitted,” he said.
He said the law on whether or not to grant bail is settled in this jurisdiction as the onus is on the respondents (the prosecution or the State) and not the applicants (the accused persons).
“They (the prosecution) should come up with averments supported by materials to warrant the court to deny the accused persons bail. I have not seen such averments in the affidavit in opposition,” he said.
He said what is stated in paragraph four of the affidavit in opposition that the bail application has been overtaken by time is inaccurate.
He said: “Even if there is a formal indictment before this court, it does not change the fact that there is a bail application and that the offences that the accused persons are charged with are bailable offences.”
He submitted that the court should not look at the affidavit in opposition because it is not certified as required by sections 115 and 116 of the Evidence Act and he urged the court to grant the accused persons bail.
Lawyer Patrick Gomez for the State said it is their position that the affidavit that they have filed did not violate paragraph seven of the First Schedule of the Evidence Act 1994. He told the court that their affidavit was signed and sworn to by a commissioner for oaths. In countering Lawyer Mendy’s submission, Lawyer Gomez said there is no requirement in law that the signature of the Commissioner for Oaths to be on the left side of the paper.
He said the defence argument that their affidavit was defective was inaccurate adding that even if it is defective, the court can still allow it as he relied on sections 87 and 88 of the Evidence Act. He said there is no argument from the defence that the affidavit was sworn to before a person duly authorised.
He said the law governing affidavit in opposition is clear in our jurisdiction. He added that it is settled that even if a party did not file an affidavit in opposition, it does not in itself means that the party is conceding to the application.
He said averment four of the affidavit in opposition is sufficient to tell that they are opposing the bail application.
The matter was adjourned till Friday at 11 am for the continuation of the objection on the bail application by the prosecution.
