As promised, here is part 2 of our series on Gambia’s rotten judiciary where the state in a deliberate attempt to pervert the cause of justice, use the Attorney General’s Chambers to frame innocent Gambians especially those it perceive as enemies.
THE UNETHICAL AND IRREGULARITY OCCASIONED
Having successfully frustrated the defense team in a combined effort, the DPP and the Judge now have an easy ride to achieve their mission as directed by Jammeh. The unethical behavior demonstrated by the state is alarming. The law has imposed a role and a duty on the Judge and the Prosecution. These roles and duties must be adhered to at all times and failure to do so is unethical, unjust, irregularly and a plain miscarriage of justice.
ROLES AND DUTIES OF A JUDGE IN CRIMINAL TRIALS
It is evident that the justice system is the mechanism that upholds the rule of law. Our courts do not only provide a forum to resolve disputes but to also test and enforce laws in a fair and rational manner. Judges must apply the law without regard to the government’s wishes or the weight of public opinion. Court decisions must always be based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favoritism.
We have what is known as an adversarial system of justice where the judge remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.
The judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether there is proof beyond a reasonable doubt and that the suspect is guilty.
The aforesaid is what justice DADA (the Judge presiding over the case of Darboe and Co) and any other Judge in the Gambia is required to adhere to. The natural question that flows from this is whether justice DADA has adhered to this principle in the case of Darboe and Co? The answer is an emphatic NO. As stated above, the number one principle is that the judge must enforce the law in a fair and rational manner. Section 19(5) of the constitution of the Gambia as well as section 99 of the Criminal Procedure Code of the Gambia provides that an accused person is entitled to bail. Darboe and Co applied for bail citing the aforesaid laws as the basis of their application and has provided sufficient facts as to why they are entitled to bail, yet the judge refused to grant their application thus denied them bail. The judge has blatantly applied the law in an unfair and irrational manner. In doing so she has betrayed the public trust by refusing to adhere to her role and duty.
The second role and duty is that the Judges must apply the law without regard to the government’s wishes or the weight of public opinion. There is overwhelming evidence (in this case) to show that the Judge has been giving regards to government wishes rather than apply the law in a fair and rational manner. It is a fact that
- The Judge received a directive from the government to deny Darboe and Co bail.
- The judge had several meetings with the Attorney General in the Attorney General’s office while the case is ongoing (obviously they will discuss the case and the what the president wants the outcome to be).
- The judge guides the DPP on the laws to cite in court prior to the time allocated for hearing (on one occasion the judge sent her clerk to deliver a note to the DPP).
- The constant refusal of all the applications made by the defense team no matter how overwhelming the evidence shows that the judge continuous to give regard to government wishes rather than the law.
The aforementioned amongst other things are sufficient evidence of the Judge’s quest to adhere to the wishes of Jammeh.
Finally, it is the role and duty of the judge to ensure that there is no place in the courts for suspicion, bias or favouritism. The judge in the case of Darboe and Co did the exactly the opposite. The manner in which she conducts herself and proceedings shows that she is bias and constantly favours the state. She has failed to remain above the fray and has failed to impartially assess the facts and evidence before her.
The judge’s failure to adhere to her roles and duties is unethical, unjust, irregularly and a plain miscarriage of justice.
ROLES AND DUTIES OF A PROSECUTING COUNSEL IN CRIMINAL TRIALS
Section 85(1) of the 1997 constitution of the Gambia provides that:
The Director of Public Prosecutions 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-
(a) to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia
(b) to take over and continue any criminal proceeding that has been instituted by any other person or authority;
(c) to discontinue, at any stage before judgement is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority:
in performing the aforesaid the DPP is required to be fair and impartial – His interest primarily is to present the facts as they are, to see that justice is done and not to secure a conviction.
It is the duty of the DPP to check the truth of the case to verify if there is a prima facie case against the suspect before instituting any proceedings. If a prima facie case has been made against the suspect then an indictment will be prepared and file to the court that has jurisdiction. Was this adhered to in the case of Darboe and Co? again the answer is an emphatic NO.
In the case of Darboe and Co, the opposite happen. The Attorney General received a directive for Darboe and Co to be charged before the High Court. This directive was complied with without regards to proper procedure. The proper procedure is that the police are to investigate the alleged offence and prepare a report (investigation report). The report will be sent to the Attorney General’s Chambers. The report will be assigned to a lawyer to go through it and assess whether the evidence in the report revealed a prima facie case against the suspects before filling an indictment. The opinion will determine whether an indictment should be file or not.
What the DPP did in this case was to act on the directive given to him to file an indictment then he asked a junior lawyer to write an opinion to tally with the indictment he already filed. The facts and evidence were never assessed to see whether there was a prima facie case against the accused persons. Everything was done to the satisfaction of YAYA JAMMEH.
Another role and duty of the DPP is that he shall not withhold the existence of any adverse decision on a point of law favourable to the accused and he has a duty to make available to the accused persons evidence favourable to them. This was never complied with. The DPP has hidden facts known to him. He knew that the accused persons where tortured and that the PIU has refused to bring them to court unless they agree to change their blood stained shirts. He did not only hide this fact to the court, he went ahead and denied that the accused persons were ever tortured.
Also he called the witnesses in his office and coached them i.e. he told them what to say in court and how they should respond to his questions. The whole trial was a sham. Jammeh used the Attorney General’s chambers to legitimize the unlawful and illegal treatment of Darboe and co.
NEXT WE WILL TALK ABOUT THE MISCARRIAGE OF JUSTICE VIS-À-VIS THE VIOLATION OF THE FUNDAMENTAL RIGHT TO A FAIR HEARING.
