Lawyer Antouman Gaye, the defence counsel for the 28 accused persons in the Babylon case before the special criminal division of the High Court, on Wednesday 18 November, applied for bail on behalf of his clients before Justice Moses Richards of the Banjul High Court.

Lawyer Gaye said the application was dated 24 July 2009, supported by a 30 paragraph affidavit sworn to by Kebba Jammeh of Makumbaya village. He told the court that they would rely on all the paragraphs in the affidavit. He also reminded the court of the State's affidavit in opposing to his bail application sworn to by Mr. Abdourahman Bah. Mr. Gaye pointed out that when the accused persons first appeared before the Magistrate Edrisa Mbai (now justice), of the Brikama Magistrates' court, they were granted bail. He said they were on bail for over a year and all the accused persons were attending trial regularly and without any evidence of tampering with the case.

Gaye added that the affidavit also shows that while the trial was going on, the then Director of Public Prosecution (DPP) now Justice Emmanuel Olusegun Fagbenle took over the case and it was being handled by prosecutor Buba Bojang. He noted that the number of accused persons reduced from 95 to 52 men as the case was going on and it later reduced again. He told the court that on 23 April, magistrate (Now Sheriff) Pa Harry Jammeh invited both sides into his chamber and told them that he would revoke the bail granted to the accused persons by magistrate Mbai. Gaye indicated that Jammeh told them that he was acting from a directive he received from the then Chief Justice, Mr. Abdoukarim Savage. He said, "That action is what landed them into Mile 2, up to now". He stated that the affidavit also shows the change of magistrates from Jammeh to Forster and how Yaya Suwarreh an accused person died in remand on 23 July 2009. He said paragraph 25 stated that some of the accused men are unwell and 27 shows that all of them are Gambian citizens with responsibilities and some married with children. He reminded the court about couple of week ago when one of the accused men was granted permission by court to sign a cheque for his family needs.

Lawyer Gaye pointed out that Kebba Jammeh, the deponent on the affidavit stated that since the inception of the case in April 2008, he has been attending and following the case. He stated that Kebba Jammeh indicated that he is a brother to some accused persons and nephew to some, adding he is related to all of them. He argued that the deponent on the state's affidavit in opposition, Mr. Abdourahman Bah, is only a custodian to documents at the Attorney General's Chambers.

Gaye asked, "How can Mr. Bah be sitting in an air condition office at the AG chambers in the section of the DPP and swear to an affidavit opposing bail to the accused persons based on information given to him by some one. I know Mr. Bah, he works at AG chambers in an air condition office. May be his information came from Mrs. Jones herself. Counsel cannot be lawyer and give evidence in the same case. This is a very serious allegation". He referred the court to section 89 of the Evidence Act and urged the court to expunge that part of the state's affidavit. He stated that the accused persons are eminent to be granted bail, not withstanding the offences that they are charged with. He then referred the court to two of its own ruling between the State and Awa Touray,

Davison Jones and the State both dated 5 June 2009. He urged the court to grant bail to the accused men in a reasonable term that they could fulfill.

State counsel Mrs. Nebu N.B Jones asked the court not to grant bail to the 28 men. She said that they are charged with arson contrary to section 305 of the criminal code, willful damage to property, going armed in public contrary to section 312 and conspiracy contrary to section 368 of the criminal code. She told the court that the 28 men are been tried for setting fire to properties and buildings belonging to several individuals in Babylon village. At this point, Justice Richards intervened and asked, "Where is Babylon itself. I have work in all regions of the country, but never heard of Babylon village any where. Is it in Western Region or where". Lawyer Jones remained silent, but Gaye stood up and explained that there is no where in official documents of the government indicating Babylon village. He referred the court to check the map with the local government ministry to look for Babylon village.

Mrs. Jones continued and argued that the trial is pending at the Brikama magistrates' court on the instance of the defence to continue to cross examine the witness. She cited section 94 of the constitution and argued that the accused persons should be detained pending the outcome of the charges against them. She further cited section 99(1) of the criminal procedure code as amended by Act number 2 of 2001, which she said provides inter alia that if any person is charged with offences punishable with death or life imprisonment, they are not entitle to bail pending trial.

Mrs. Jones further argued that it is trite law that if the accused persons are likely to commit the same offences again while on bail then they should be denied bail. She told the court that paragraph 4 -u of the state affidavit in opposition to bail indicated that the accused persons while on bail have shown tendency to incite violence which is not controverted by the defence. She indicated that there was a letter addressed tot the chief Justice from counsel Gaye concerning the ill health of one Yaya Jammeh and that the CJ has not taken any decision on that. She argued that there cannot be any amount to any real evidence regarding special circumstances of the application of ill health or otherwise. She added that it was not based on any term or form of doctor's report and not any evidence of medical grounds. She stated that the defence's application is not competent enough to give evidence about ill health, which she urged is the job of a medical expert. Counsel Jones pointed out that the health condition of the accused persons should be brought to the attention of the prison authorities in whose custody are the accused persons been held. She noted that if the complaint was tabled to the prison authorities, the state would endeavour to remedy the situation of ill health. Mrs. Jones said, "My lord, bail should be refused because they are standing trial on a non bailable offence. The particulars of offence indicated that the interest of the public should be taken into consideration which will do substantial justice. The prosecution would do all to expedite the trial. We all know that the case stood adjourned on the instance of the defence", she concluded.

Defence counsel Gaye stood up and replied on points of law. He asserted that the public interest stated by state counsel Jones, should be weight against the back drop of the constitutional right guaranteed under section 24, that anybody charged with criminal offence shall be presumed innocent until he or she pleads guilty or is proven guilty. He added that the continuous detention of the accused persons violates that section of the constitution. He cited section 19(5) of the constitution and argued that section 305 of the criminal procedure code cannot stand on the way of section 24 of the constitution. Gaye said, "The constitution is the supreme law of the country, so any law that is inconsistent with the constitution should be void. I urge this honourable court to grant bail to the applicants".

Justice Richards ruled that he would deliver ruling on the matter as soon as possible. He adjourned the case without taking any date in court. He promised to inform counsels about the date when he is ready with the ruling.