Barrister Edrissa M. Sissoho, the defense counsel for Lieutenant Sering Jallow, an officer of The Gambia Armed Forces on Trial before the General Court Martial at the Yundum Army camp, on Thursday 31 January, made an application for the Court to discontinue the trial of Lt. Jallow due to consideration of jurisdiction.
Lawyer Sissoho made this application based on the fact that the alleged offence charged was said to have been committed beyond the time requirement of 3 years as stipulated by The Gambia Armed Forces Act.
In his submission, lawyer Sissoho argued that it is trite law that the issue of jurisdiction can be raised at any time of the trial. He stated that the evidence of prosecution witness (PW2), Amadou Jawo under cross examination has robbed off the Court of all jurisdictions to proceed with the matter. He indicated that the charge sheet before the Court alleged that the offence happened between 2009 and 2010. He noted that the evidence of PW2 has exempted the Court from proceeding with the case when the witness said the alleged offence happened between May and June 2009. He cited section 124 Subsection (1) of the Armed Forces Act, which he said is the basis of the jurisdiction of the Court. He read out the entire section to the Court.
Lawyer Sissoho pointed out that the Court Martial is a creature of a statute by the GAF Act and it is where it derives all its powers from. He indicated that by best of calculation as from Wednesday 30 January, the alleged incident has happened more than 3 years or even 4 years ago. Sissoho stated that the language of section 124 subsection (1) is mandatory and is explained in a clear terms without any ambiguity about it. He argued that for the Court to proceed with the trial of Lt. Jallow would be an exercise for nothing. Sissoho said, "Whatever this Court does in this case from now on will be an exercise in futility. You cannot put something on to nothing and expect it to stay there, it must collapse". Sissoho concluded by citing Section 118, Subsection (1)(a) and read it out to the Court. He added that the Court has no jurisdiction to proceed with the matter and urged the Director of Public Prosecutions (DPP) to spare the Court time on this case.
The State lawyer DPP Barkum in his turn argued that Sissoho has put the cart before the horse, adding that Sissoho should have allowed the prosecution to finish their case before he could come up with his application on jurisdiction. DPP Barkum said they are not aware that the issue of jurisdiction can be brought at any time before the Court. DPP Barkum stated that the issues raised by lawyer Sissoho were predicated on the charge sheet and the evidence of one of the prosecution witnesses. Barkum indicated that at this stage unless there is a categorical pronouncement by the Court as to the quotation of the evidence of their witness, then lawyer Sissoho can't hinge on it. He argued that the issue of the evaluation and analysis of the evidence of a witness can only be done by the Court and not Sissoho. He noted that Sissoho should have waited until the prosecution closes their case but not at this stage of the trial.
DPP Barkum posited that the prosecution intends to call another witness and the Court should give the prosecution the benefit to hear from their witness, before the defence can jump on to conclusion. Barkum pointed out that the essence of the trial is to achieve justice unlike what section 124 is trying to say. He indicated that the rules of the Court shall be obeyed, but not to be obeyed lavishly. He said the provision of section 124 is a mere procedural technicality and the substance of the case is that the victim was subjected to maltreatment which was confirmed by a credible witness. He cited the case of Abdoulie Conteh and the State. DPP Barkum said, "The area of technicality relies on technicality till justice is passed. You can bend the rules to achieve justice because the rules are meant for the Court and not the Court for the rules, the Court can at times bend the rules to achieve justice." He cited section 174 of a subsidiary legislation and read it out to the Court. He finally urged the Court to overrule the application made by Sissoho and to allow the prosecution to continue with their case.
At this stage, lawyer Sissoho stood up and said he is not calling for an acquittal, but for the Court to halt the trial as per jurisdiction. He stated that he does not think the DPP means what he said for the Court to bend the rules. He stated that this is the first time in history for the DPP to urge the Court to bend the rules. He added that he has nothing more to say on the issue.
At this point, the President of the Court, Colonel Paul S. Gomez called for a stand down of the case for 15 minutes for the panelists to rule on the arguments by the defence and prosecution. However, it took the panelists 48 minutes to resume sitting. Upon resumption, the president ruled that due to the technicality of the case, they decided to adjourn the matter to Tuesday 5 February, for ruling on the application.
The members of the panel are Justice Mikailu Abdullahi as Judge Advocate, Colonel Paul S. Gomez as President of the Court, Captain Abdoulie Saine and Lieutenant Ndongo Lowe. The accused person Lieutenant Sering Jallow is on trial for allegedly striking Sona Badjie, a subordinate to him during recruitment of intake 30 between 2009 and 2010. He pleads not guilty to the charge.
So far, on Wednesday 30 January hearing, the prosecution called 2 witnesses and were subjected to cross examination by lawyer Sissoho.