Defence Applies for Referral of Case to Supreme Court In Caliph General and Co Trial

By KebbaJeffang and RoheyJadama

Lawyer Antouman Gaye, the lead counsel in the trial involving Sheikh Sheikh Muhideen HydaraMuhideen Hydara and Buyeh Touray, the Caliph General and the Alkalo of Darsilameh Sangajorr respectively, has applied for the Magistrates’ Court to stay off hearing the proceeding and refer the case to the Supreme Court of the Gambia following the evidence given by the first prosecution witness on Monday, 18th August, 2014.

The application was made following the amendment of count two of the charge sheet before Principal Magistrate Sirending Sanneh of the Brikama Magistrates’ court.

Chief Inspector Lamin Touray appeared for the state, while Lawyers Antouman Gaye (Senior Counsel), Lamin K. Mboge and Borry S. Touray represented the two accused persons.

When the case was called in a crowded courtroom, Chief Inspector Touray, the prosecutor, applied to make an amendment to count two on the charge sheet. He said instead of charge for Misdemeanour as stated in the charge sheet, the prosecution wants to amend it to Conspiracy to commit felony. The prosecution’s application for the amendment of Count Two was accordingly granted by the Court as there was no objection from the defence.

In giving his evidence before the Court, Momodou Lamin Jarju, the first prosecution witness, said he is the Chief of Foni Kansala and is residing in Kanfenda. He said he recognised the accused persons from Darsilameh Sangajor and that he can remember the 29th day of July, 2014. He said there are nine chiefs in the West Coast Region and all of them have agreed to select one chief as a focal person at the Governor’s office who will be giving information to them when the need arises. He said this person is Dembo Badjie, the Chief of Foni Bondali District and that he has received a call from him informing him that the governor has said there should be no prayer (Eid-Fitr) on Tuesday (27 July, 2014) for those who failed to pray on Monday (28th July, 2014).

“This was in the night and I went to Bwiam radio to disseminate the same information. In that very night I assigned Seedy Gibba, my Badge Messenger from Jiramba village to go to Darsilameh to inform them that I have received information from the governor that there should be no prayer on Tuesday. When he came, he told me that he went to Darsilameh and has informed the Alkalo and other people whose names he said he doesn’t know. I asked him the response of the villagers and he told me that the information they received affects only Kombo and not Foni. I asked him to go back the following morning which he did because the information I received stated that there should be no prayer from Kartong to Kalagi. While he was there, he called to inform me that these people will pray and I further told him (my messenger) to stay and be an eye witness in case they prayed. He later informed me that they had prayed. This was the time I called the governor (Siffai Hydara) to tell her that I have told them but they finally prayed. The governor then asked me to continue my work as I have done my duty,” said the prosecution witness.

Under cross examination, Lawyer L.K, Mboge asked the witness whether he knows the number of religions that are in the Gambia. He responded that what he knows is that there are Muslims, but not groups, but added that in Islam people give a lot of respect to those reffered to as “Sheriffs.”

“Do you know Ahmadiyaa in the Gambia?” “Yes,” he replied.

Mboge asked, “Do you know about Tijaniyaa, Quadriyaa?” He replied in the affirmative.

Mboge asked, “Do you know about the Sunni sect which is commonly called ‘Masha Allah’ in the Gambia?” He responded that he used to hear about them.

Mboge asked, “Do you know that all these sects believe in God and it is only God they worship?” He replied that he believes that they are all Muslims and they all worship the same God.

Mboge asked, “You also know that all these sects recognised the Holy Prophet and that he is the last Messenger of God?” He replied in the affirmative.

Mboge asked, “Do you know that since the demise of the Holy prophet (PBUH), all the various sects of Muslims practised the same religion in different ways?” “All I know is that all the sects are Muslims and they believe in the same God,” replied the witness.

Cross examination by Lawyer Antouman Gaye.

Gaye asked, “How old are you?” He responded that he was born in 1941 but could not remember the exact date.

Gaye asked, “How long have you been a chief?” He said about eight to nine years now.

Gaye said, “It is a fact that in this country since you were young, Ramadan or Tobaski, people fast and pray on different days. Is that true?” He responded in the affirmative.

Gaye remarked, “You will recall that last Ramadan people did not fast the same day. When did the people of Kansala start fasting?” He said he does not know about others, but he started fasting on Sunday and not on Monday.

Gaye added, “But you are aware that some people in the Gambia, including some people of your district, started fasting on Monday?” He replied that he was not aware of that.

At this juncture, the lead defence counsel applied to the Court that since the accused persons pleaded not guilty to the charge against them and also based on the evidence heard from the first prosecution witness (PW1), he is submitting that there have been sufficient facts that enabled them to make an application before the court. He said therefore he submitted that the court shall do two things.

Gaye remarked, “Firstly, I apply to this honourable court to stay off the proceeding of this case. Secondly, to refer the matter to the Supreme Court of the Gambia for that court’s interpretation and determination of the following questions under the constitution of the Gambia, 1997.”

Lawyer Gaye asked “whether or not by the laws which are within the contemplation of the Constitution of the Gambia 1997, the offence charged on count two, not withstanding its incompetence and duplicity of the charge, is inconsistent with and contrary to Section 25(1c) of the Constitution of the Gambia and therefore null and void and of no effect?”

He said if the answer to question one is in the affirmative, then the second question is whether the count is maintainable against the accused persons. He said the application is made under Section 127 of the Constitution because that is where the interpretation of original jurisdiction is spelt out and the Supreme Court is the jurisdiction.

Replying to the submission of the defence, the prosecuting officer argued that the offences which the accused persons are charged have been before this court many times. He said the court has the power and the jurisdiction to hear the matter.

At this juncture, the matter was adjourned to Monday, 1st September, 2014 at 12 noon for ruling.