Former NIA 9 application challenging Deputy DPP competence dismissed

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Justice Kumba Sillah-Camara, presiding judge in the murder case involving the former National Intelligence Agency (NIA) officers, Tuesday dismissed their application challenging the competence of the Deputy Director of Public Prosecution (DDPP) to exercise the powers and functions of the Office of the Director of Public Prosecution (DPP) in the absence of an incumbent of that office, and others.

The accused persons – Yankuba Badjie, Louis Ritchard Leese Gomez, Saihou Omar Jeng, Baboucarr Sallah, Yusupha Jammeh, Haruna Susso, Tamba Mansary, Lamin Darboe and Lamin Lang Sanyang are facing murder and other related charges at the High Court in Banjul. They are alleged to have killed late Solo Sandeng and tortured others.

By summons on notice dated the 3rd day of April, 2017, and filed on the same date, the accused persons seek an order striking out the information dated the 20th Day of March 2017 and filed same day for want of jurisdiction on the ground that the criminal case not instituted in accordance with the due process of law and the requisite provisions of the 1997 Constitution of the Republic of The Gambia.

The accused persons submitted that in the 1997 Constitution of The Gambia, the office of the Director of Public Prosecution is separated and distinct from the office of the Attorney General and Minister of Justice of The Gambia as opposed to the situation that existed before the coming into operation of the 1997 Constitution.

They also submitted that when the purported information in this case was filed by Mr M.A Abubakar purportedly there was no incumbent Director of Public Prosecution (DPP) and counsel Mr CE Mene stated that to the best of his knowledge that there is no incumbent DPP to date that has been appointed by the President of the Republic of The Gambia in accordance with the Constitution; that the said MA Abubakar is not competent to exercise the powers and functions of the office of the DPP in the absence of an incumbent of that office and the information signed by him is null and void and of no effect.

They also submitted that the position of the state does not represent the law as today; that the appointment of the DPP is under the purview of the executive – section 84(2) vests same on the president; that Section 85 (1) of the Constitution removes the prosecuting authority under the AG and vested I on the DPP and that the information is not signed on behalf of the DPP.

State Counsel vehemently opposed the defense application prompting both sides to reply on points of law.

In her ruling, Justice Sillah Camara said Section 84(1) of the 1997 Constitution states that there shall be a Director of Public Prosecution whose office shall be an office in the public service. This section she said creates the Office of the DPP.

She added that Section 48(1) of the 1970 Constitution also states that there shall be a Director of Public Prosecutions, whose office shall be an office in the public service of the Gambia and without prejudice to the provisions of this constitution relating to the Public Service Commission, an office in the department of government for which responsibility is assigned to the Attorney General.

“It is clear from both provisions of the Constitution that the office of the DPP is created in the public service. For the latter provision that is section 48 of the 1970 Constitution created the office in the department of the government and the responsibility of instituting and undertaking criminal proceedings was vested on the Attorney General directly. Whereas the 1997 Constitution vests the responsibility of initiating criminal proceedings directly on the DPP but it does not oust the jurisdiction of the Attorney General to control and direct prosecutions conducted by the DPP” she stated.

According to Justice Sillah-Camara, Section 85 (1) of the 1997 Constitution states that the director of Public Prosecution shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General. She noted that the approval of the AG is needed for the DPP to perform his duties which includes initiating criminal proceedings under the 1997 Constitutions.

She said Section 65 of the Criminal Procedure Code gives the Attorney General the power to appoint a person to be a public prosecutor and who shall be subject to the express direction of the AG. “Therefore, it is safe to conclude that the Attorney General has the power to prosecute through the Office of the DPP” she said.

She made it clear that the accused person’s have not presented in their application, any evidence to show that there is no incumbent DPP.

“It suffices to state that even if there were no incumbent DPP, Section 85(3) states that the powers conferred on the DPP under this section may be exercised by him or her in person or by person under his or her direction and control. This provision presupposes that the powers of the DPP may be exercised by him or her in person. It is not mandatory that the DPP must exercise his powers in person. It goes further to state that the DPP’s powers can be exercised by persons under his control and direction. These persons are persons who are those working under the DPP. It does not mean that in the absence of the DPP, they cannot assume the responsibility of the DPP” she said.

On the issue of whether the information signed by the Deputy DPP is null and void, Justice Sillah- Camara said the Deputy Director of Public Prosecution is a person working under the direction and control of the Director of Public prosecution, therefore, the fact that his office was not designated in the Constitution is irrelevant.

“The important thing is for the Deputy DPP to be under the direction and control of the DPP. I hold that the deputy Director of Public Prosecution acted legally for signing the information. Moreover, it is of judicial notice that the office and location/address as that of the AG. Therefore, the address stated on the information is also valid. I therefore hold that the information is valid and the court has jurisdiction to hear same. In light of the above, the application lacks merit and I hereby refuse the application and dismiss same” she concluded.

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