Justice Amina Saho-Ceesay of the High Court in Banjul is expected on 6 February, 2020, to rule on bail application made by Counsel R. Mendy on behalf of executive members of 3 Years Jotna.
Abdou Njie, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh, Fanta Mballow, Karim Touray, Yankuba Darboe and Muctarr Ceesay were on 29 Jan. 2020 arraigned before the Kanifing Magistrates' Court and charged with unlawful assembly, rioting after proclamation and rioters demolishing structures.
Because of count three which is rioters demolishing structures, which Prosecutor Mballow argued that it is an unbailable offence, the presiding magistrate ruled in favour of the prosecution and said that the court does not have the jurisdiction to hear the case. She subsequently transferred the case to the Special Criminal Division and remanded the accused in custody.
Patrick Gomez, lead prosecutor for the state, told the High Court that they received the case file from the police on 3 February, 2020, which was transferred from the Kanifing Magistrates' Court. He sought for an adjournment to enable them go through the file.
Reacting, Counsel R. Mendy told the court that there was nothing before the court that warranted for an adjournment, noting that no charges were before the court. She argued that the reason for an adjournment was just to remand the accused persons.
She said she was applying for the accused to be granted bail until such time that the state will put their house in order. She adduced that the accused have been in custody since 26 January, 2020, adding that Section 24 of the constitution indicates that the accused should be availed fair trial.
She submitted that the state knows that the accused should be properly brought before the High Court and not the magistrate court, instead they took them to the magistrate court, knowing that it was wrong. "Their action is to further delay the trial. This is why they said that they received the file yesterday," she argued.
She noted that taking the accused to court implied that they were ready to prosecute the case, stating that they wished to apply for bail for all the accused. She adduced that there were charges against the accused at the magistrate court, adding that they believed that the state relies on them to prosecute the accused. She said that they are bailable offences.
At this juncture, she cited a High Court ruling to support her argument. She further said that the accused are all Gambian citizens and they have no intention to leave the jurisdiction. Section 99 of the CPC was cited by her in relation to a High Court ruling.
Patrick Gomez, lead prosecutor, said that they were opposing the application for bail. He stated that there was a charge before the court. He referred to Section 62 (2) of the CPC and read the proviso to the court. "Going by the provision, it is very clear that there is proper charge against the accused because it is a transferred matter. The state has no intention to delay the trial," he told the court. He added that the case was transferred because the Kanifing Magistrates' Court lacked jurisdiction. He argued that one of the offences which the accused were charged with at the lower court is not bailable, and this was why the case was transferred.
"Count three on the charge sheet is not bailable and it attracts life imprisonment. It is the position of the law within our jurisdiction that where offences attract life imprisonment or death sentence, bail should not be granted," he challenged the defence. He referred the court to Section 99 of the CPC to convince it.
He dwelled on the citation by the defence of a ruling by the High Court in the case of Henry Gibril. He submitted that the case of Henry Gibril is quite distinct from the case before the court, stating further that his case was a pending appeal. "The case before the court is not for appeal," he declared.
He said that Section 99 of the CPC was applicable and it robs the jurisdiction of the court to use its discretion to grant bail for offences that attract life imprisonment or death sentence. "It is settled law in our jurisdiction that the decision of one High Court judge is not binding to the other. We urge the court not to grant bail," he stated.
Defence Counsel R. Mendy, on points of law, said that Section 62 of the CPC was not applicable, adding that the applicable section is 208 and not Section 62 of the CPC. She then cited Section 175 (b) to support her argument, and read the provision to the court.
"There are no charges properly before the court. The case of Henry Gibril was not an appeal pending. The submission made by the prosecutor is misconceived. There is a law of presumption of innocence until proven guilty. I urge the court to grant bail to the accused," she urged.