The bail application of Mr. Mambury Njie, the former Minister of Foreign Affairs suffered another setback yesterday at the High Court in Banjul after the trial judge Justice Mikailu Abdullah of the Criminal Court decided to adjourn the case following an argument between the State and the defence over the constitutionality of his detention for 30 days without any court order.
"I submit that the applicant be released conditionally or unconditionally.
The detention of the applicant is unconstitutional as no formal indictment or court order was made," submitted Lawyer Lamin S Camara, the defence counsel.
Lawyer Camara argued that the constitution is the supreme law of the country. He submitted that the court has a sacred duty to uphold the constitution and called for the immediate release of the accused in conformity with the constitution.
"Is 30 days of detention without any formal indictment reasonable and lawful?" he quizzed.
The defence counsel cited Section 19(3)(b) of the Gambian Constitution. He submitted that the constitution stated no person should be detained for 72 hours without trial, adding that he cannot count the number of hours his client has spent in detention for 30 days.
"It is unconstitutional for the applicant to languish for 30 days in the state central prison without trial," he pointed out.
Lawyer Camara submitted that the applicant has a health condition of diabetes and takes various medications. He submitted that the affidavit in support of the bail application contains evidences as to why the applicant should be granted bail. He said the affidavit of the state does not controvert the detention of the applicant at the central prison. He argued that the affidavit does not controvert the fact that the detention is unconstitutional.
"The Banjul Magistrate Court did not remand the applicant on order after his plea was taken on 14th December. The applicant is detained at the remand by a warrant from a magistrate without a court order on the same date," Lawyer Camara submitted.
The defence counsel indicated that the affidavit for the bail application is supported by 37 paragraphs. He highlighted the paragraphs as he called the detention unconstitutional and called for the immediate release of the applicant. He submitted that the applicant has sought all sureties for bail. He said there was nothing in the records of the lower court to indicate that the accused should be taken to detention.
"The applicant has absolutely no criminal record. He has prepared himself under any circumstance and he will not jump any bail," he submitted.
Lawyer Camara submitted his observation that investigations into the case has concluded. He argued that the affidavit in opposition has stated that more charges might be filed against the applicant but stressed its uncertainties. He informed the court about the various capacities and services the accused has rendered to the government for more than 10 years.
However, S. H. Barkun, Director of Public Prosecutions (DPP) submitted the filing of a 4 paragraph affidavit in opposition to the application. He submitted that the detention of the applicant is in line with the Constitution. He argued that the warrant for the detention was signed by the Principal Magistrate of Banjul.
"Is a warrant different from the order of the court? No it is the same," said the DPP.
The state counsel stated that the dictionary has interpreted the same meaning for both words.
He was questioned by the court to specify the dictionary and the page number. He said it was the Glasgow dictionary and promised to provide the page number later.
"I submit that the Magistrate does not need to have it in record for the remanding of the accused since it does not have the mandate to try the case. We submit that an order of a court is not only in writing but can be verbal," he submitted.
The defence counsel objected that the detention was not in line with the Constitution as it was not ordered by the court. He argued that the state counsel is dealing with things that are not in his affidavit.
In the meantime, the court agreed with the objection of the defence. Subsequently, the case was adjourned for ruling today (15 January) on the bail application of the defence.
It could be recalled that Mr. Mambury Njie, has served in several ministerial and senior government capacities, is currently standing trial on economic crimes and abuse of office charges at the High Court in Banjul.
The ex-Minister is accused by the state of conducting himself in acts that are detrimental to the economy of the Gambia between 2006 and 2010, but he denies any wrongdoing.