Justice Ebrima Jaiteh of the Banjul High Court has on Monday dismissed the bail application made by Counsel Abdoulie Sisoho on behalf of Yankuba Touray, an erstwhile Minister of Local Government and Lands.
"The application for bail is hereby refused and accordingly dismissed," the Judge ruled.
Justice Jaiteh held that the law is very clear on the point that the matters to be taken into consideration on whether or not to grant bail are: the nature of the charge, the severity of the punishment, the quality of the evidence available, likelihood of the accused jumping bail or interfering with witnesses, the criminal record of the accused if any and the likelihood of a repetition of the offence if granted bail. He said Section 99(1) of the Criminal Procedure Code (the CPC) undoubtedly gives the court the discretion to grant bail to any person other than a person accused of an offence punishable with death or imprisonment for life adding that this discretion must, however, be exercised judicially having due regards to the facts and circumstances of the case and in accordance with any statutory criteria for granting of bail.
"In this particular case, the accused person is charged with murder. I have looked at the law under which the accused person is charged and that is section 187 of the Criminal Code, Cap 10, volume 3, laws of The Gambia, which is murder. Section 188 of the Criminal Code deals with the punishment for murder and its states: 'A person convicted of murder shall be sentenced to death.' The punishment allowed for murder in this jurisdiction is sentenced to death," the Judge said.
The trial judge cited section 99 (1) of the Criminal Procedure Code which creates a statutory regime in accordance with which a Court makes a determination as to bail and oust the powers of the court its discretion in the grant of bail for offences that are not punishable with death or imprisonment for life.
"What this means is that this Honourable Court can only grant bail to an accused person who is charged with a criminal offence and the punishment prescribed by law is not punishable with death or imprisonment for life. In the instant case, the Accused person is charged with murder, which is punishable with death. I must state murder is a serious offence attracting a sentence of death, which is a factor to refuse bail to an alleged offender," he said.
Counsel for the Accused person refers this Court to section 24 of the 1997 Constitution that deals with the presumption of innocence and submits that the accused shall be presumed innocent until proven guilty. Section 24(3) (a) of the1997 Constitution of The Gambia states that: "Every person who is charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty."
He remarked: "I also, hold the strong view that the fundamental hallmark of our criminal justice system is that a person accused of committing an offence is cloaked with a presumption of innocence. On the other hand, society also has a poignant interest in not only ensuring that the accused will appear for any scheduled court appearances but also in protecting itself from criminals that present a very real danger to persons or property. However, it should be noted that the presumption of innocence is not absolute and unqualified," the judge ruled.
He said Section 99(1) of the Criminal Code creates a presumption in favour of bail for an offence that does not carry the punishment with death or imprisonment for life.
"Having regards to the severity of the punishment and purport of section 99(1) of the Criminal Procedure Code and among other reasons mentioned above, the Accused person Yankuba Touray shall not be admitted to bail," Justice Jaiteh resounded.
Hon. Attorney General with A.M. Yusuf (PSC) and M. Koita appeared for the State while A. Sisoho represented the Accused person.