By Lamin Njie
Bubacarr Keita accused of raping a 15-year-old girl has had his bail hearing adjourned following a marathon session on Tuesday.
Lawyers for the businessman on Wednesday asked a high court sitting at Bundung Magistrates Court to grant bail to the 29-year-old.
Mr Keita has been in detention at Mile 2 Prison since he appeared in court last week over allegations he raped his ex-wife’s 15-year-old sister. The incident allegedly happened last year.
On Tuesday, Keita appeared in court for bail hearing which started at a little after 11am as dozens turned up for a case that has garnered national attention.
When the judge took his seat, a five-man team of attorneys led by Alasan Jobe quickly announced they were appearing for the state.
The hearing then began with state attorney Alasan Jobe stating the court had last week made an order remanding the accused person in custody pending the determination of the matter.
“Learned counsel for the defence thereafter filed a motion on notice with supporting affidavit for his bail,” Jobe told high court judge Momodou SM Jallow.
He then added, as he asked the defence to move his bail application before they would reply: “The state filed/responded to the said ,motion and this was served to the defence.
“The defence filed an affidavit in reply, in opposition and this was served on the state yesterday.”
Defence lawyer Lamin S Camara after the judge granted him leave to move his motion for bail insisted there was a motion before the court dated 20th July 2020 “which motion is seeking for bail to be granted to the applicant subject to such terms and conditions that this court deems fit to grant”.
“My Lord, this motion is premised on Section 24 of the 1997 constitution as well as Section 99(1) of the Criminal Procedure Code. The motion is supported by a 30-paragraph affidavit sworn to by Abdoulie Keita, brother to the applicant,” Mr Camara insisted.
He insisted further: “We are relying on all the paragraphs contained in the affidavit, particularly paragraphs 4 to 30.”
Mr Camara who has over decades under his belt as a criminal lawyer then told the judge Keita had been on police bail since 7 November 2019 and had never absconded the jurisdiction.
“…The applicant is a father of two children and has never had a problem with the law prior to this,” Camara said, adding it was averred in the affidavit the accused would not interfere with the witnesses and that he had no criminal record prior this case.
The defence attorney still with his affidavit for bail said it has also been averred Keita will not interfere with the investigation – if any – which he insisted has concluded.
Still with the affidavit, Camara said it is also averred Mr Keita has people who are willing and ready to serve as sureties if the court is willing to grant bail; that he will in no way jump bail and that he is a prominent businessman employing nothing less than 15 Gambians.
“My Lord, these are the conditions that the applicant needs to depose himself to warrant the court to exercise its discretion in granting bail,” Camara argued.
He then insisted: “My Lord, the law is that it is the state that should give the court ample evidence why bail should not be granted to the applicant.”
Camara said the state’s application in opposition to bail has no factual evidence in support of the denial of bail.
The defence attorney tearing into the state’s affidavit against bail which says 20 June was when the accused sent a delegation to the victim’s families.
“Merely saying he (accused person) sent people is not enough…Their particulars are missing. Who was sent? On whose behalf? That is what the law requires,” Keita’s lawyer argued.
He then turned to Paragraph 20 of the state’s affidavit against bail which says the complainant and the witnesses can be ‘greatly’ influenced or intimidated if Mr Keita is released on bail.
“Let us look at the witnesses,” Lawyer Camara said.
He added: “From the indictment, complainant is the first witness; witness number 2 is the applicant’s ex-wife; witness number 3 is their mother; witness number 4 is a medical doctor who is only a formal witness and witness Number 5 and 6 are police officers. How on earth can these people be intimidated by the applicant? How? [It’s] not stated [in their affidavit].”
Camara then told the judge those were the kinds of arguments averred throughout the state’s affidavit in opposition to bail.
He then said: “Out of abundance of caution, we filed a 20-paragraph affidavit in reply denying that [the] applicant will flee; will interfere with the witnesses or intimidate them; and My Lord, we rely on all the paragraphs in the affidavit sworn to by Abdoulie Keita (the brother).”
Camara then turned to concern by the state of Mr Keita having a valid US Visa and could flee to that country.
He said: “My Lord Paragraph 27 of the affidavit in opposition said the applicant has a US visa and so is a huge flight risk. Serious averrment! And to show how untrue [that is], that is meant to mislead this could.”
Camara still making his case said Mr Keita does indeed have a US visa as attached in the affidavit.
He however argued: “…The applicant acquired a visa [on] 14 November  just a week after being released on bail by police but [he] stayed in the country. My Lord it has almost been nine months and he did not leave this country.
“If he was minded to running, he would have run a long time ago. But he wants to stay, fight for his name and be vindicated.
“Finally, I submit that the respondents did not put anything before this court in their 33-page affidavit to warrant this court not to grant bail. The offence is bailable.”
The defence lawyer in adding further weight to his argument referred the judge to the case of Henry Gabriel Vs the State in which the former who was charged with murder was released on bail by the Supreme Court after his charge was amended to manslaughter, an offence punishable by life imprisonment.
“My Lord in the high court, bail has been granted in cases punishable by life imprisonment,2 Camara insisting further as he touted State Vs Haggi Jabbie and 22 others arson case as an example.
“And finally Mr Lord, A[minata] Saho Ceesay granted bail to the Three Years Jotna [members] charged with arson. My Lord that case is the State Vs Abdou Njie and seven others,” he added.
Camara in his bid to secure bail for his client then said life imprisonment is bailable, from the Supreme Court to the high court.
“Finally, even in the Sexual Offences Act, there is presumption for bail clearly stated under the Act, Section 13…,” he said.
Camara then concluded: “In the circumstances, I respectfully urge this honourable court to grant bail taking into consideration Section 99(2) of the Criminal Procedure Code, because the respondents have woefully failed to put anything cogent facts to warrant a refusal of bail.”
The state attorney began responding that in response to Mr Keita’s motion for bail and affidavit in support, the state filed a 33-p affidavit in opposition sworn to by Mariama Jallow, the legal clerk attached at the criminal division of the ministry of justice.
“It was dated 23rd July 2020. The said affidavit in opposition denied almost all paragraphs of the affidavit in support,” state attorney Alasan Jobe said.
He then said: “As provided for under Section 13 of the Sexual Offences Act, the state had a duty to inform the complainant of her right in the bail application.
“From paragraph 5 to 10 of the affidavit in opposition, it is in compliance with Section 13 of the Sexual Offences Act.
“My learned senior friend state that all the paragraphs of the affidavit in opposition were a bare denial. I am going to counter that.
“He specifically mentioned P-11 of the affidavit in opposition which states that ‘she will continue to live with the trauma for the rest of her life as it has impacted her life very serious’. My Lord I wonder how this amounts to a bare denial.”
The state attorney then insisted the complainant was a victim of rape only for him to back-pedal on the comments after the defence lawyer took him head on.
“Objection My Lord, this is no victim of rape, there is only a victim of alleged rape,” Lamin Camara said.
The state attorney then said ‘as the court pleases’ after the judge asked him whether he was going to the defence lawyers argument.
Continuing with his argument, the state attorney Alasan Jobe said the alleged victim rape victim was going to school.
“As a result of the alleged rape…” he said before the defence lawyer interrupted again by insisting what the state attorney was saying was not in Paragraph 12 of the affidavit.
The state attorney then read P-12 which says the complainant is no longer going to school due to the rape and her subsequent impregnation and breastfeeding of her baby which was bron in April 2020.
“My Lord, it is common sense that such tragic happening will cause trauma to the complainant,” the state attorney insisted.
He continued: ” My Lord I would now have to go to the issue of passport, the fact that the accused person has a valid US visa. Learned Counsel for the defence said that the accused person would have jumped bail if he was minded to do so.
“My Lord, at that time in which he was on police bail, he was charged with defilement.”
The defence lawyer again interrupted by asking, ‘where is that in the affidavit in opposition?’
“My Lord, I am replying to the issue, he is misleading the court in regards to what the accused person was charged with [which is] defilement which is different from the charge before the court,” the state lawyer insisted.
Camara who was not impressed fired back that the state lawyer was not making his arguments from the affidavit in opposition to bail.
“You cannot give evidence from the Bar,” Camara insisted.
State lawyer Jobe continuing said all the cardinal principles in bail applications is whether the accused will not jump bail. The session was then suspended for five minutes.
At 1pm, the case resumed as the state lawyer picked up from where he stopped in his argument for bail to be refused.
He insisted going by the provision of Section 99 of the Criminal Procedure Code, the accused person is not entitled to bail as the offence of rape attracts a punishment of life imprisonment.
“My Lord I submit that a court’s hands are tied in law to grant bail to the accused person. The question therefore is, does this honourable court have the discretion or even the jurisdiction to grant bail having regard to the alleged offence,” Jobe said.
He added: “My Lord on the issue of the provision of Section 99 makes it very clear that the applicant ought not to be granted bail under these circumstances. It therefore suffices to say that the grounds of bail by the court does not extend to an offence of rape…”
The state attorney continued that presumption of innocence is not absolute and unqualified in his response to the defence lawyer’s mentioning of Section 24 of the constitution.
The state attorney argued further: “My Lord, learned counsel for the defence cited the case of the State Vs Haggi Jabbie in which the high court granted bail to the accused person on a charge of arson which attracts life imprisonment.
“My Lord that decision of the high court can only be persuasive and not binding on this honourable court as both courts have concurrent jurisdiction. The same court has departed from its own judgment just recently on 26 May 2020, in the case of … Gassama and the State in which the same court refused bail to the accused person because the offence attracted a mandatory imprisonment for life. The same Justice Jaiteh that granted bail in the arson charge.”
He continued: “Learned counsel for the defence also mentioned the case of the Three Years Jotna, that is the State Vs Abdou Njie and others. My Lord, defence counsel intends to mislead the court…”
Camara took offence at that statement insisting in his 24 years as a lawyer, he has never misled the court.
“As the court pleases, I would like to withdraw that statement,” the state lawyer quickly said as he changed gear.
He then said: “What he (defence lawyer) failed to tell this honourable court is that the accused person therein were granted bail on offences that were bailable such as wilful damage to property which is a bailable offence, rioting and unlawful assembly. Those were the offences in which they were granted bail, and not on the charge of arson which attracts life imprisonment. I therefore submit that, that case is not applicable in this matter.
“Learned counsel for the defence also mentioned the case of Henry Gabriel Vs the State. My Lord, I would like to submit that the procedure adopted by the court in granting him bail, that procedure is only applicable to the court of appeal and the supreme court and not the high court, as provided for under Section 42 of the supreme court act Vol 2 CAP 605 laws of The Gambia 2009. My Lord, in fact that case was bail pending appeal and there are specific provisions which regulate that.”
“My Lord, the facts of that case and this case are totally different. The accused person therein was charged with murder and he was sentenced to seven years imprisonment after he pleaded guilty,” the state attorney added but the defence lawyer interjected that was his case and the way the state attorney explained it was not the way it happened.
“Murder was dropped and manslaughter charge was brought and he pleaded guilty and sentenced to seven years imprisonment,” Camara said.
“Either way My Lord, the case was different [from the case of Keita]. The court in that case used Section 42 in granting bail and that provision applies only to the supreme court and not the high court,” state attorney Jobe insisted.
He added: “My Lord in the case of Adamu Sulaiman and others Vs CoP (Commissioner of Police) 2008 and the State Vs Albert Sambou certain guidelines were enumerated to guide the court in bail application and these are; (a) nature of the charge, (b) the strength of the evidence which supports the charge, (c) the gravity of the punishment in the event of conviction, (d) previous criminal record of the accused person, (e) the probability of the accused absconding trial, (f) the likelihood of the accused interfering with the witnesses and (g) the likelihood of further charges being brought against him.”
Jobe then wanted to proceed into arguing further on the guidelines only for the judge to announce it was time for Zuhr prayer and suggested that the case be adjourned.
Both sides accepted the judge’s suggestion and the case was adjourned to Wednesday at 10:30, as the judge ordered that Mr Keita be remanded at Bundung Police instead of Mile 2 for easy access to him on Wednesday.