31 May 2019

Gambia: Defence Says Hearing of Case Will Occasion Miscarriage of Justice

Lawyer Bubacarr Badjie, representing Alagie Darboe who has been charged with impersonation at the Kanifing Magistrates' Court before Magistrate Sillah, has said that the hearing of the case would occasion miscarriage of justice.

He told the court that he was objecting to the charge before the court on the grounds that the charge violates the rule against ambiguity of particulars of offence to a charge, noting that the State Intelligence Service, as a public office, is not known to our laws, and thus no one could be said to impersonate an officer of the State Intelligence Service.

He argued that there was no proper charge against Mr. Darboe, stating that the rules of court under Sections 110 - 113 of the CPC regarding the formulation of criminal charges have not been complied with. Counsel Badjie went on to say that the charge also shows state oppression against Mr. Darboe.

He submitted that the case was instituted with a reckless purpose, and such reckless conduct must not only be frowned upon by the court, but it must also be condemned in no uncertain terms as an abuse of court process. He argued further that the only way the court could distance itself from such irregularity is to dismiss the case and acquit and discharge Mr. Darboe on the grounds that the charge is unconstitutional, null and void and a blatant abuse of process.

"This is a case of witch-hunt against Mr. Darboe simply because he is in fact an honourable and hardworking serving member of the National Intelligence Agency. Up to date, he is never served any proper letter of dismissal or termination of his service from the NIA. He has not resigned either," he told the court.

He argued that we are in democracy and the prosecution misconceived the fundamental underpinnings of a functional democracy. He revealed that the president cannot change the name of the NIA to State Intelligence Service and, with respect, the court cannot likewise usurp the functions of parliament. "This is the principle of separation of powers which underpins the constitutional principle by which the courts discharge their constitutional functions and roles," Counsel Badjie submitted.

He adduced that under no circumstances should a court entertain a charge that is ambiguous, noting that the rule against ambiguity or uncertainty is rigid and inflexible in that any ambiguity in the particulars deprives the accused the opportunity to adequately prepare his defence, and thus offends his right to fair hearing enshrined in Section 24 of the constitution.

He stated that Mr. Darboe could not be said to be in breach of any laws of The Gambia for allegedly impersonating an SIS officer. As a result, he said, the charge is an irregularity and any proceedings on the charge will be a nullity, as the irregularity robs the court of jurisdiction to entertain the matter.

Hearing continues for the prosecution to respond.


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