Justice O. Ottaba of the Special Criminal Division of the Banjul High Court yesterday, 9 May, 2016 adjourned the criminal
trial involving Mr. Ousainou Darboe, leader of the United Democratic Party (UDP) and 18 others for ruling on whether the court should transfer counts 5 and 6 to the Supreme Court for interpretation.
The other accused persons are Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Yahya Bah, Babucarr Camara, Fakebba Colley, Ismaila Ceesay, Momodou Fatty, Dodou Ceesay, Samba Kinteh, Mamudu Manneh, Nfamara Kuyateh, Fanta Darboe, Lamin Njie, Juguna Suso, Momodou L.K Sanneh and Yaya Jammeh.
When the case was called, Lawyer Antouman Gaye, who headed a team of defence lawyers, announced their representation for all the accused persons, while Hadi Saleh Barkun, the Director of Public Prosecutions (DPP) and a team of state lawyers appeared for the state.
In his reply to the application of the defence for the two counts to be referred to the supreme court, the DPP said at the last seating the defence counsel (Hawa Sisay Sabally) asked the court to transfer two out of the seven counts against the accused persons to the supreme court on the grounds that the two counts are predicated on the Public Order Act which was made in excess of the power vested on the National Assembly.
He said the second issue raised by the defence is that the said Act is not in harmony with section 25 of the 1997 Constitution. “My lord, the question before this court is not to determine the legislative competence of the National Assembly. The question before this court is whether the accused persons are guilty or innocent of the charges filed against them on the 28 of April 2016,” submitted the DPP.
He further submitted that the jurisdiction of this court has been
conferred in this case by filing the bill of indictment and arraigning
the accused persons accordingly. He said it should be noted that they were first arraigned on the 21 of April, 2016 and that their pleas were taken on that day, and that subsequently the prosecution amended the charge on the 28 of April, 2016 and that their pleas were taken again. “It is also noteworthy that no objection whatsoever was made as to the competence of the charges before their respective pleas were taken. That gave this court the jurisdiction to try the charges before it,” he argued.
The DPP continued: “By virtue of section 217 of the criminal procedure code, any objection of whatsoever nature to a charge should be made before the plea of the accused person is taken and where that is not done, it can be assumed that all is well and the defence is not objecting to the charge. Notwithstanding an objection was made on count 5 and 6 regarding the public order act on the grounds that it was made in excess of legislative powers of the national assembly which application was concluded with a prayer that ii should be sent to the supreme court for determination.”
He further told the court that another question to be asked is “how do we send a question for determination?” He cited section 127(1)
paragraph A-D and section 100 (a)(B) (c). He said the excessive powers of the National Assembly has to be explained in black and white before the court can act on such application and it is not a mere saying, adding that in other words, the applicant has to convince the court that a law has been made in excess and that that is what is lacking at this stage.
The DPP said the defence stressed that section 25 of the Constitution has been violated by section 5 of the Public Order Act.
“It is our submission that assuming section 5 of the Public Order Act is inconsistent with the 1997 Constitution that alone will not confine the Public Order Act being accommodated under section 100(2) (a) (b) (c). The only section that can be implored is section 4 of the constitution nothing more than that,” he added.
He therefore urged the court to refuse the application and allow them to proceed with the case.
In her counter reply to the points by the DPP, Defence Counsel Hawa Sisay-Sabally argued that it was never in their submission for the court to transfer counts 5 and 6 to the Supreme Court but they rather asked for a referral. She said they even went to the extent of formulating the questions to be referred.
On 217 of the CPC as cited by the DPP, Barrister Sisay-Sabally submitted that this section does not deal with constitutional issues. She said the particular section is not relevant to their application. She referred the court to Saho Vs the Inspector General of Police, an authority which made reference to the constitution. She said
it is not right to say that it is only the Sabally case that has been
referred to the supreme court but the Saho case was also referred.
Lawyer Sisay-Sabally argued that the constitution is not subject to be interpreted by the black law dictionary relied upon by the DPP. She said the language of the constitution is very clear and that section 100 referred to by her learned friend (DPP) does not create a category of cases to be transferred to the Supreme Court. She said section 25 of the Constitution falls under section 127(a) and therefore this court should determine section 5 of the Public Order Act. “It is my submission that that section is severally flouted,” she said.
Counsel Sisay Sabally added “The DPP did ask that excess legislative power has to be explained in black and white; it is not a mere saying, it came from the accused persons who are remanded in custody. Finally I urged this court using Attorney General vs Jobe to refer this counts to the Supreme Court for determination and disregard the entire arguments of the prosecution which are misconceived and not in line with the constitution,” submitted Sisay-Sabally.
At this juncture, the presiding judge adjourned the case to Monday 16 May, 2016 at 12 noon for ruling.