By Lamin Njie
State lawyers on Tuesday said they didn’t have anything to say after the high court in Bundung freed businessman Bubacarr Keita on bail.
“The application before the court is for an alleged offence that was committed supposedly more than one year ago and the state had not proceeded with the case,” Judge Momodou SM Jallow in a four-minute ruling that started at 4:36pm Tuesday began saying.
He then continued: “Ordinarily courts would be reluctant to grant bail to accused persons for sexual offences which are prosecuted with immediacy, where conditions that counter the favourable exercise of its discretion to grant bail would be unmet by the accused.
“For example, the likelihood of the accused interfering with witnesses or ongoing investigations etc, which in this case the Honourable Court that the likelihood of the accused interfering with witnesses is not possible, in light of the list of witnesses.
“Ongoing investigations have been concluded and the court agrees with learned senior for the defence if the accused opted to jump bail he would have fled the jurisdiction in the past. Since he wishes and submits himself to the law of the land, to be tried for his alleged omissions, going by the case of Henry Gabriel and the state which senior counsel ably relied on binds lower courts to grant bail in cases where life imprisonment sentences are options for punishment as in the case before the court.
“In passing, Section 19 of the 1997 constitution requires when proceedings are pending the right or liberty of accused persons to be granted bail, to be given due effect as well harnessed in the case of Henry Gabriel which the Honourable Court extends to the accused person, in this case Bubacarr Keita, in favour of whom the Honourable Court grants bail with reasonable conditions as permitted under Gambian law for accused persons’ presumption of innocence to be given effect.
“Thus, the accused person’s bail is D100,000 or two Gambian sureties who must depose to separate affidavit of means to surrender copies of their Gambian national identity cards with the court registry. It shall be a condition of the accused’ bail to deposit his passport with the valid USA visa with the court registry. That’s all, this is my ruling.”
Mr Keita, standing in the dock, quickly buried his face in his hands as the judge finished saying he was granting him bail.
Outside the court, dozens that turned up could be heard roaring in elation. The case has now been adjourned to October 14.
“Brilliant,” Mr Keita’s lawyer Lamin S Camara told The Fatu Network shortly after the ruling amid a big smile on his face after getting the job done.
The state lawyer Alasan Jobe on his part said, “we do not have anything to say, It’s the decision of the court.”
Mr Keita is accused of raping his ex-wife’s 15 year-old sister, a charge he denies. He then hired top lawyer Lamin Camara who had lodged a bid to have him released on bail following his remand at Mile 2 prison on July 21.
On July 28, a marathon hearing for bail ended in an adjournment after lawyers on both sides of the legal isle squared off. The bail hearing then suffered several adjournments.
On Tuesday, hearing resumed with Mr Keita appearing in court clad in his white Khaftan and personalised ‘Bob Keita’ face mask after spending the Eid holiday in police custody at Bundung.
He entered the witness box at exactly 1:15pm after which state counsel Alasan Jobe whetted the court’s memory that the last sitting was adjourned while he was talking about the case of Adamu Suleiman and another person Vs CoP (commissioner of police), as well as Albert Sambou Vs the State.
“And I enumerated some seven factors that the court should consider in a bail application,” Jobe said.
“The first of these factors was the nature of the charge. My Lord I will not touch on this extensively…(during last sitting).”
Jobe said he would like to proceed to the second factor: the strength of the evidence that goes with the charge.
“In addressing this issue, question that has to be asked is whether there is prima facie evidence,” Jobe said as he proceeded to reading a dictionary definition of prima facie evidence, and then adding, “My Lord, it therefore suffices to say that the strength of the evidence which supports the charge is a determining factor in bail hearing.
State counsel Jobe continuing insisted the court already had the bill of indictment and a summary of ‘all our witnesses’.
Jobe however got cut by Mr Keita’s lawyer Lamin Camara when he proceeded to say: “To cut it short My Lord, there is a baby my lord. There is a baby born out of this alleged rape incident.”
According to Camara, the state counsel’s statement could only be borne by medical evidence while lashing out, “there is certain statements that need proof, it cannot just come from the Bar like that.”
The judge handing a ruling over the standoff said the state counsel had qualified his statement with the word ‘alleged’, before going on to overrule Mr Camara’s objection.
Jobe then continued with his argument by saying the offence for which Mr Keita was charged attracts a mandatory life sentence.
“This weighs heavily against granting the accused bail,” Jobe said.
Jobe then slammed an argument by the defence lawyer that Mr Keita had no previous criminal record prior to the present case.
“The only thing I have to say to that is that learned counsel in his submission barely stated that the accused person never had any problems with the law without any proof whatsoever, such as a certificate of character from the police,” Jobe, who equipped himself with lawyers AA Marong and LS Ceesay, lashed out.
“My next point touches on the probability of the accused absconding trial. My Lord, the chances of jumping bail is higher when the punishment is severe. My Lord, the accused person herein has a valid US visa. It is valid for five years. The reason he didn’t abscond at first was because he didn’t know the seriousness of the offence,” he then said before being interrupted by defence lawyer Camara who challenged him on whether he could really give the reason why Mr Keita didn’t abscond.
The judge then intervened by asking the state counsel to finish what he wanted to put across while telling the defence counsel he would be given the chance to speak.
“Because the police initially charged him with defilement which attracts a lesser sentence and there bailable. My Lord that is why he didn’t abscond,” the state lawyer said shortly after the judge’s intervention.
Camara then objected by saying he was a ‘bit’ concerned as the state counsel wasn’t speaking along the lines of his affidavit that opposes Mr Keita’s bail.
“There is no proof from the police attached to the affidavit in opposition to the motion,” Camara insisted and added, “Counsel ought not to make statements from the Bar, for him to say he was charged with defilement when he didn’t bring that proof…”
The state counsel then stood up and brandished a paper to the judge telling him that was the police defilement indictment against Mr Keita.
The judge intervening said the senior state counsel should know whether Mr Keita was charged with defilement by police or not. Camara said he didn’t know about it.
“I do not have any obligation to disclose anything to the state but the state has every obligation to dislose everything to me, that’s the law,” Camara standing his ground then said.
The judge then addressing the issue suggested that the state counsel proceeds and the defence be allowed to respond on points of law later on.
Alasan Jobe resuming then said: “My Lord this is a bail hearing and the court ought to know every relevant fact Pursuant to Section 3 (1) of the Evidence Act, that will help it determining and arriving at a decision.
“The reason why I said that he didn’t abscond initially is because the defence counsel in his submission said that if the accused person was minded to jump bail, he would have done so and it is my duty to deny that and the reason as to why he didn’t jump bail.
“He didn’t jump bail merely because bail. Therefore My Lord, I’m just exhibiting my duty to rebut what learned defence counsel said.”
Camara’s turn to speak then came shortly after 2pm but only after asking the judge if he could allow him to pass a bottle of water to his client (Mr Keita – which he was permitted to do.
The defence lawyer speaking on Paragraph 25 (jumping bail) of his client’s affidavit for bail said the affidavit itself was filed on 21st July 2020 and the state filed an affidavit opposing bail on 23rd July and they didn’t deny P 25 at all.
“So they cannot deny it ws the Bar, That’s the law,” Camara submitted confidently.
The state counsel then told the judge Camara should bring his argument in line with the law.
Camara fired back by saying, “My Lord we would be truncating the trial if we continue like this,” and then added: “You’re bound by the affidavit that you filed, that’s the law.”
The judge intervened by overulling the state counsel insisting senior counsel Camara was in fact ‘treading’ on points of law only.
Lamin Camara continuing insisted averments contained in an affidavit if not denied are admitted and then adding amid reference to a purported police indictment, “finally My Lord the documents sought to be produced here by my learned friend cannot be produced here.”
He said it was Section 97 of the Evidence Act that balks at that adding, “the reason being is that the document is not before this court.”
Camara also said under Section 98 of the EA, primary evidence means the document itself produced for inspection by the court.
“This document is not before the cour, so he cannot go into the content of this document before this court,” Camara argued referring to the purported police defilement indictment.
Camara then insisted Section 3 of the EA was a general rule that is subject to specific sections in the act. He then talked about Sections 25 (computer generated documents); Section 97-98 (primary documents); Section 99, 100 & 101 (secondary documents); and Section 113, 114 & 115 (requirements of certification of documents – secondary documents).
The judge at this point addressed the issue of the purported police indictment by asking the state counsel not to take that line of argument.
“My last line of argument would be on the likelihood of the accused interfering with the witnesses,” state counsel Jobe then said as he jokingly added his just-stated statement was in his affidavit amid laughter from both the judge and the defence lawyer – as the former asked him to stick to that line of argument.
Jobe then told the court the accused started interfering with their witnesses on the ‘very’ day the court remanded him in custody.
“My Lord without wasting much time if the court can allow us to call our witness and I would ask him four simple questions,” Joeb then said, comments that sparked an objection from the defence lawyer.
“My Lord I’m just shocked. What procedure would that be? Bail application to call a witness? It’s absolutely unheard of,” the defence lawyer Lamin Camara objecting said.
He argued further, after which the judge ordered the standing down of the court for 10 minutes: “My Lord I’m objecting to that because that is strange. My learned friend needs to cite a law that allows a witness to go into the box to prove an averment contained in an affidavit to support the affidavit in opposition.
“I have never heard of it in my 24 years of practice. However, My Lord, if there are conflicting averments in the affidavit in opposition, you don’t call a witness, you call the persons depose to it.”
When the hearing resumed at 3:36pm, the state counsel got the ball rolling by saying him calling a witness was ‘merely’ going to prove the averment stated in Paragraph 26 of the affidavit (interfering with the witnesses).
“Therefore, he’s going to state facts which support the said averment in P. 26 of our affidavit,” Jobe said adding, “we therefore urge this Honourable Court to allow us”.
Jobe then continued by saying they want to conclude by saying assuming the state didn’t even object to the bail application and ‘without’ prejudice to the discretionary powers of the court, the court doesn’t have the power to grant bail to the accused person.
“This is a court of law and the law in this jurisdiction is that persons charged with offences attracting mandatory life imprisonment are not entitled to bail,” Jobe insisted.
He then warned: “My Lord even where the court is minded to use its discretionary powers, such discretion must be used judiciously and within the confines of the law.
“My Lord, I would like to close by stating the case of State Vs Felix (1941 – 16NCR54) wherein the court held that, (a) in view of the severity of the sanctions for the offence charged, (b) the frequency of such offences in the state and (c) the possibility of such offences being repeated if the applicant was granted bail…
“My Lord, lastly, even where the court is minded to exercise its discretion in favour of the accused, we urge this Honourable Court to accompany it with very stringent conditions.”
The defence lawyer was then allowed by the judge to reply on points of law and he began by saying the state lawyer had submitted the decision of the Supreme Court in the case of Henry Gabriel Vs the State was pursuant to Section 42 of the Supreme Court Act and that, that procedure was peculiar to the Supreme Court.
“However My Lord, my learned friend failed to aver that in bail application, there is only one general provision, Section 99 of the Criminal Procedure Code,” Lamin Camara fired back.
He then said: “My Lord Section 42 of the Supreme Court Act refers to procedure at the Supreme Court but the test as to whether Henry Gabriel (charged with manslaughter) was bailable was premised on Section 99 of the Criminal Procedure Code…
“And finally My Lord, the decision of Henry Gabriel would have to be read mutatis mutandis with Section 99 of the CPC, substantially making offences punishable by life imprisonment bailable. And because of Henry Gabriel, lower courts followed it in the State Vs Haggie Jabbie and 22 others.
“My Lord finally, Henry Gabriel is binding on all courts in this jurisdiction. The state didn’t provide any law that is binding on this court.”
The argument then ended at 4:05pm after almost four hours.
It then took the judge between 4:05 and 4:36 to come up with his ruling, and in his four-minute ruling, he freed Mr Keita on bail.
