Here is part 3 of our Legal Experts’s take on The 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.
Please read on
PRESUMPTION OF INNOCENCE
Section 24(3) (a) of the 1997 Constitution of The Gambia provides thus:
“Every person who is charged with a criminal offence shall be presumed e innocent until he/she is proved or has pleaded guilty.”
This means that the law regards you as innocent. You are not a criminal and you just alleged to have committed the offence. The prosecution should therefore convince the court beyond reasonable doubt that the allegation made against you is true and that you are the one who committed the alleged offense. They will do so by calling witnesses and presenting evidence before the court and if they fail to do so, the court will exonerate you from all liability.
It is by virtue of the aforesaid constitutional provision that an accused person is entitled to apply for bail. The court should always be minded to admit accused persons bail unless if otherwise provided for by law.
This is so because to admit an accused person to bail is not consistent with an acquittal. It only furthers the fair trial rights of the accused; that is the right to be presumed innocent as embodied in section 24 of the 1997 Constitution of The Gambia. And since this is the Constitution of the Gambia justice Dada is bound as a judicial officer to follow it. And this would in my view enhance trust in our criminal justice system.
Therefore, since our Courts are a Court of Justice and Law, and since the justice of the case and the law on the matter is in favur of the grant of bail, Darboe and Co should have been admitted to bail. The courts failure to do so (be cause the Judge was directed by the state not to admit them bail) is a grave violation of Darbo and Co’s constitutional and fundamental human rights as provided for by section 24 of the 1997 Constitution of the Gambia. Thus a blatant miscarriage of justice
RIGHT TO FAIR HEARING
The right to fair hearing is a constitutional right enshrined under section 24 of the 1997 Constitution of the Gambia. The right cannot be waived or statutorily taken away.
Section 24(1)(a) and (b) of the 1997 Constitution of the Gambia provides thus:
- (a) if any person is charged with a criminal offence, then, unless the charge is withdrawn; or
- (b) where proceedings are commenced for the determination or the existence of any civil right or obligation, the case shall be afforded a fair hearing within a reasonable time.
The aforesaid constitutional provision is applicable to everyone irrespective of your nationality, race, ethnic group or political affiliation. The courts are bound to apply it at all time. The natural question that flows from this is, what are the essential elements of fair hearing? In other words, what are the things that must be accorded to an accused person before we can conclude that such a person has been handed a fair hearing.
The Supreme Court prescribed the essential elements of fair hearing as follows:
- Easy access to court;
- Right to be heard;
- Impartiality of the adjudicating process;
- Principles of nemo judex in cuasa sua; and
- Whether there is inordinate delay in delivering judgment.
If one of the aforementioned is violated, the right to fair hearing of the accused person is violated. Thus, to satisfy the principle of right to fair hearing, all of the essential elements must be respected. The question now is whether Darboe and Co are being accorded a fair hearing so far? The answer is an emphatic NO because of the following incidents that transpired during the proceedings so far.
-Darboe and Co were in PIU custody from the 16th to the 20th April 2016 before their subsequent arraignment at the high court. In fact they were to be arraigned at the Kanifing Magistrates’ court and everything changed in the last minute.
-The Judge received a directive from the government to deny Darboe and Co bail. This was evidence by the interview the judge had with Fatou Camara. This led the judge to recuse himself from the case and the case was assigned to another judge.
-Security personnel are constantly around the Darboe and Co even when they are briefing their lawyers even though it is their right to have audience with their lawyers privately. The defense complaint to the court about the irregularity. The Judge refused to order security personnel to allow the defense team to have audience with their clients saying it is beyond her powers.
-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 first witness the prosecution called testified in English even though most of the accused persons do not understand English. The following day the DPP having been aware of the irregularity, wrongfully invoke section 123 of the CPC to recall the witness and the Judge allowed his application. Furthermore the judge herself read what the witness said to the interpreter who then interpreted it to the accused persons.
-The DPP made another application to recall a witness who had already testified, the judge granted the application made by the DPP without asking the defense whether they have any objection to the application even though she was obliged to do so. she has intentionally refused to listen to the defense.
This trial without doubt is politically motivated. Consequently the accused persons’ rights have been constantly violated by the prosecution and the Court. the miscarriage of justice occasioned in this trial is overwhelming. The lack of respect for rule of law by the court and the adherence to the will of the president by the court shows that our judiciary is not independent. I will say this without any fear of contradiction that one of the following will happen
- Darboe and Co will be convicted and sentenced by the court
- The President may direct the office of the Attorney General to withdraw charges
- The President may, after their conviction pardon them and play hero once again.
No matter what the out come is, one thing is clear, our justice system has failed us and we cannot trust it with our lives.