By Lamin Sanyang
Barrister Mene, lawyer of former NIA Director General (Yankuba Badjie) has called on the high court to strike out the case against his client as the Attorney General Chambers cannot prosecute criminal trial without any incumbent Director of Public Prosecution.
When the case was announced this afternoon at Banjul High Court before Justice Kumba Sillah Camara, Lawyer Mene moved a motion arguing that the due process of the law was not observed in the case. The motion was supported by a nine paragraph affidavit. It was sworn to and signed by one Dawda Faye, a Clerk at the office of the accused person.
He referred the court to section 84 of the 1997 Constitution of The Gambia which he said creates the Office of Director of Public Prosecution. He quoted the same section saying the Office of the Director of Public Prosecution is separate and distinct from the Office of Attorney General and Minister of Justice. He further argued that the information on the criminal case before the court was assigned to the state counsel and not Director of Public Prosecution.
“There is no incumbent DPP to date appointed by the President in accordance with the 1997 Constitution,” Lawyer Mene said.
He has submitted that the said state counsel, M.B Abubakr, is not competent to exercise the powers of the office of the Director of Public Prosecution DPP. He submitted that the affidavit in opposition of the state was erroneous. He further submitted that the position of the state in the said case does not represent the law, saying what was quoted was the 1970 Constitution.
“My learned friend is 25 years behind the time,” he submitted.
Lawyer Mene argued that the 1997 Constitution has vested prosecuting powers to the Director of Public Prosecution which he said was not the case under the 1970 Constitution that vested powers to the Attorney General.
“When there is no incumbent Director of Public Prosecution that leaves a vacuum. There is nobody to delegate somebody on his behalf,” he said.
At this juncture, lawyers Moses Richard, Uzoma and Dayoh all associated themselves to the submission made by lawyer Mene.
Meanwhile, M.B Abubakr, the State Counsel told the court about the filing of affidavit in opposition to the motion of the defense.
He referred the court to section 84 of the 1997 Constitution of The Gambia which he said creates and guarantees the office of Director of Public Prosecution but does not by any means creates distinct or separate office from the Attorney General.
“This provision clearly shows that the framers of the Constitution intended to make the Office of the Director of Public Prosecution as part of the Office of the Attorney General and not a distinct office. He said there is no independence of the DPP from the Attorney General in the 1997 Constitution. He submitted that the argument of the defense is misconceived.
” The Office of DPP is not a one man business that cease to operate when one person is not present. It is fully functioning with duties of public prosecution, ” M.B Abubakr, the State Counsel submitted.
He added: “To say that because of the absence of DPP the office will close up is unattainable. It is not sensible. It is not legal.”
The State Counsel who is also serving as the Deputy Director of Public Prosecution said he is competent to handle the case at hand with the staff at the Attorney General Chambers.
“The application made by the defense is misconceived, unattainable and should be dismissed,” he submitted.
The defense in response on point of law reiterated the called to strike out the case.
Meanwhile, the case has been adjourned to April 18, 2017.
