11 June 2018

Gambia: Man On Trial for What He Said Against President Barrow

The trial of one Omar Touray charged with Seditious Intention, contrary to Section 51 (a) of the Criminal Code, kicks-off this Thursday at the Brikama Magistrates' Court. The police have accused Mr Touray of calling the President a hypocrite and a liar. The Court will be presided over by Magistrate Omar Cham, who has granted him bail for the sum of million.

In the particulars of offence, the prosecutors allege that Omar Touray, on the 1st of June in Gunjur, Kombo South District of the West Coast Region, "uttered a statement saying the President of the Republic is a hypocrite and a liar, knowing fully that such utterances are likely going to cause contempt and incitement of violence."

When the accused appeared before the Magistrate with his hands put in hand-cuffed, the magistrate ordered the removal of the handcuffs and the prosecution do not object to this.

The accused was then brought to the dock and the charges were read to him in Mandinka. He pleaded not guilty to the charges. After his plea of not guilty, the lead prosecutor ASP E.A Keita, informed the Court that they were objecting for the accused to be granted bail.

In their submission before Court, the prosecution said that in the interest of natural justice and fair trial, and for the fact that investigations were at a preliminary stage, they wish to see the accused person remanded in custody. They submitted that the utterance by the accused person was through 'WhatsApp' created by himself and that if he is allowed bail, the he will likely tamper with the group and destroy evidence.

However, the points raised by the prosecution were objected to by Defence Lawyer Lamin Darboe. In his counter argument, Counsel Darboe said having considered that the country was just coming out of a totalitarian dictatorship, any move by the Police on behalf of the State to object to granting bail to the accused person on such a minor offence will be very disturbing.

Defence Counsel Darboe made reference to Section 99 of the Criminal Procedure Code which states that every accused person shall be granted bail unless the punishment for such an offence is Life Imprisonment or Death; that the penalty for the offence of Seditious Intention is just a minimum fine of D50,000 to a maximum of D250,000 or one year imprisonment or both.

Counsel Darboe further argued that the Constitution is very clear; that the provisions of Section 19 demands that an accused be brought before a competent Court of jurisdiction within 72 hours of arrest, accusing the State of contravening the Law by detaining his client beyond the stipulated Constitutional time limit of 72 hours.

Counsel Darboe then called on the presiding magistrate to judiciously use his privilege as an adjudicator between the "mighty State" and a "powerless" citizen and that he should not look into what the complainant (State) said, but what the Law states as to whether the offence is bailable or not.

"There is no question that this is a bailable offence," Counsel Darboe submitted before the Court.

He said the prosecution talks about fair trial but that the Constitution demands for both fair and speedy trial citing the time of arrest and detention of the accused person beyond the Constitutional limitation.

"The accused is a Gambian, with families ready to serve as sureties," Defence Counsel Darboe stated.

He finally submitted that the prosecution can investigate even up to one year, but that the accused person should be granted his Constitutional right to bail.

The State prosecutor objected to the submissions of the defence on points of law saying, the defence Counsel relied on Section 19 of the Constitution as well as Section 99, sub-section (1), of the Criminal Procedure Code which states that the Court "may" grant bail in line with the Law; but that the word "May" is not mandatory like "shall". The prosecutor said even though the offence is bailable, it is entirely discretionary on the part of the Court to either grant or refuse the accused person bail.

The prosecutor accused the defence of saying the President of the Republic is the complainant rather than the State.

"I therefore submit that senior learned Counsel's submission, lacks merit," the prosecutor stated.

After a careful examination of the submissions of both teams, the Magistrate granted bail to the accused for an amount of one million dalasi, with two Gambian sureties who have landed property either in Greater Banjul or Brikama Administrative area, and they are to submit their national documents to the Court.

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