Below we produce a report on the case of The State versus opposition leader, Ousainou Darboe and five members of his executive who are currently languishing at the mile two central prison for over a month. This report will give you an insight into everything that is wrong with The Gambia’s judicial system. Please read on:
The accused persons were arrested on the 16th April 2016 while on peaceful procession along the Kairaba Avenue Road, Kanifing Municipality, The Gambia. They were on a peaceful demonstration to demand the unconditional release of the demonstrators who were arrested on the 14th April 2016; including the unconditional release of the “dead body” of Ebrima Solo Sandeng (the Youth leader of the opposition United Democratic Party), who is alleged to have been tortured to death by the Gambia National Intelligence Agency (NIA).
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The accused persons were held in custody until the 19th April 2016; when they were brought to Court at about 17:30pm, thirty minutes before official time to close of business of the Court. They were brought in chains and handcuffs by the Prisons officers and Police Intervention Unit officers (PIU).
During the proceedings, after the charges were read to the accused persons and they all pleaded not guilty to the charges, the State counsel’s lead by Saleh Hadi Barkum (DPP) of Nigerian Nationality urged the court to adjourn the matter to a further date due to lack of time for the court to entertain any application. However, the defense counsels lead by A.A Gaye, raised an objection and moved an application for bail to be granted to the accused persons being a constitutional right. The State counsel (DPP) objected to granting bail to the accused persons citing reasons of National security.
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However, Mrs. A.N.D Bensouda reminded the court that, as provided by the constitution, it is the fundamental right of the accused persons to be admitted to bail since they have not been convicted by any court of law and that the State did not charge the accused persons with any offence that is related to National Security or any charge that mentions National security. She cited case law and constitutional provisions to support her submission, then she urged the court to grant the accused persons bail pending the determination of the trial.
Justice Ottaba ruled that, the application for bail should be made formally (by writing) due to insufficient of time to entertained the oral application. The matter was adjourned to the 21st April 2016 for hearing and for the defense counsels to file and move their bail application.
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The Bail application was filed formally and moved on the same date. The State counsel sought 2 days to file an affidavit in opposition, which extended into the following week. On the next adjourned date, the State counsel filed his affidavit in opposition. On the same day, the defense sought for a 30 minutes recess to enable them look at the counter affidavit of the State since they were served in court and respond to it according. The matter was stood down. The Defense counsel returned and announced that a reply to the State counsel counter affidavit will be filed momentarily and urged the court to deem it filed and adopted before the court to enable the case to continue.
Thereafter, the Judge, Ottaba J. ordered both sides to file their arguments on the issue of bail. Twenty-four (24) hours was granted to the defense counsels to file their brief first and three days was granted to the State counsels to also file their brief in reply. On the next adjourned date, the State filed their brief in court while the case was proceeding, thereby denying the defense to look at it beforehand to enable them to reply on issues raised by the State in their briefs. Again, upon application, the Judge granted the defence to file their reply within 24 hours, which the Judge deemed filed and adopted in court. The DPP questioned the appropriateness of deeming the reply brief filed and adopted, but he was overruled.
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In any event, the Judge adjourned for a full one week (7 days) in order to enable him to write his ruling on the bail applications of the accused persons. This is unusual. Meanwhile, the accused persons shall remain in custody at the notorious Mile 2 prisons, where they have been in custody for two weeks.
On the 5th May 2016, the Judge delivered his ruling refusing to grant bail to the accused persons due to reasons the falsity of which can only be appreciated by investigating in detail the ruling of the Judge. In essence, the Judge imported case laws from Nigeria, which were decided based on provisions of Statutes or Laws, which does not have equivalent in the Gambian law. Further the cases relied upon related to armed robbery and terrorism offences. That could only be deliberate and mischievous miscarriage of Justice.
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Having refused the accused persons bail, the defense counsel Hawa Sisay Sabally applied to move an application on behalf of accused persons. The application was in respect of the welfare of the accused persons in custody. She stated that, some of the accused persons where held in solitary confinement even though they were not convicted by the court. The second argument was in respect of the fact that the accused persons have not been allowed access to their lawyers, family members and medical attention. She submitted citing provisions in the constitution and the Prisons Act. She urged the court to make a similar order it made earlier about the welfare of the accused persons, which had been flouted by the authority of the prisons service.
The Judge again ordered for the accused persons to be allowed access to their lawyers, family members, food and medical attention according to the rules and regulation of prisons.
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In any event, these orders of the court were not obeyed until after two weeks and when Mrs. A.N.D Bensouda raised the issue of the Welfare of the accused persons in custody again in court. The DPP informed the court that a letter was received from the Minister of Interior directed to the Prison authority to allow the accused persons access to their lawyers, family members, medical attention and food. Then, the Judge by way of Obiter dicta (off court record, passing comments) alluded that “now that an executive order is made, I think it will add weight to the court ordered.” This is a mockery of Justice and the integrity and Independence of the Judiciary.
The defense counsels on behalf of the accused persons filed an appeal in the Court of appeal challenging the ruling of Ottaba J. refusing the accused persons bail. An application is also filed on behalf of Ebrima Solo Sandeng summoning the Inspector General of Police, Commissioner of Prisons services and the Director of the National Intelligent Agency (NIA) to produce the person of Ebrima Solo Sandeng in court. An application was also filed but was not moved in court seeking the Judge to recuse himself from further adjudicating on the case because of obvious bias, partiality and miscarriage of Justice on his part.
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The allegations against the Judge as a ground for him to recuse himself, was confirmed by himself during an online interview. His statements in the interviewed showed his complicity in the perversion and miscarriage of Justice being done by the State using mercenary Judges from Nigeria.
On the next adjourned date, the Judge it is believed after consultation with lawyers for the State and defense counsels, was urged to recuse himself personally instead of an application being moved asking him to do so, which will be further embarrassing to the Judge and the entire Judiciary beyond what had been done.
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On the 16th May 2016, the Justice Ottaba, after the formal calling of the case and appearances of counsels announced that, he wished to recuse himself from further proceeding in this case, and that the case file will be sent to the chief Justice.
However, the appeal against the ruling of Ottaba J. has been with the President of the Court of Appeal since one week before the 16th May 2016. When counsel for the defense approached the President of the Court of Appeal to obtain a date for hearing of the appeal, the president of the court of Appeal without any courtesy to the Lawyers said that, his diary is full and that date available is two weeks from the 16th May 2016, that is, on the 30th May 2016.
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Meanwhile, the accused persons are left languishing in the custody of State unattended and denied bail. Remember the charges against the accused persons are mere misdemeanors, the charges are not felonies and capital offences, which could be a reason to keep them denied bail pending the determination of the allegation against them are decided by the court of law. What is happening is that, the accused persons are convicts of executive order and or directives, who unfortunately in the Gambia can do and undo with impunity.
