PRODUCE THE ACCUSED OR RELEASE THEM – Female lawyers’ team tell court

By Rohey Jadama
Barrister Janet Sallah-Njie, lead defence counsel for 6 women standing
trial after staging a protest at Westfield Junction yesterday 16 May, 2016 urged the Kanifing Magistrates’ Court to order their production or unconditional release.

The accused include Kaddy Samateh, a lactating mother of a 1 month
old baby, Isatou Saidy an elderly woman of 60 years of age and 4
others. The case is presided over by Magistrate Abeke.
The accused persons are facing 7 counts of Unlawful Assembly, Riot,
Incitement of Violence, Holding a procession without a permit, Being Idle and Disorderly, Common Nuisance and Prohibition of conduct conducive to breach of peace.
Ten female lawyers are representing the accused. They are Janet Sallah-Njie, Rachel Y. Mendy, Haddy Dandeh Njie, Loubna Farage,
Sagarr Jahateh, Combeh Gaye, Neneh Cham, Yassin Senghore, Anna Njie and F. Mahoney.

Sub-Inspector Colley announced his representation for the Inspector General of Police.
“As you rightly observed the accused persons are not present before
this honorable court and this being a criminal charge before the
court and the charges are not struck out. So as we speak the charges
are still pending before the court and the matter cannot proceed in
their absence”, said Lawyer Sallah-Njie, the leading defence lawyer.
She continued, “Based on the records, the last time the matter came
up an application was made for their release which was unfortunately
not granted and the court has ordered that the accused persons be
granted police bail based on the facts and circumstances that one of
the women is a lactating mother breast feeding a 1 month old baby and
the other woman is an elderly woman and one of them nearly collapsed
in court in the last proceedings”.
She told the court that the accused persons were not granted police
bail and that counsels went to the Police Intervention Unit (PIU)
office to facilitate their release,  but that they were denied access
to the accused persons at the PIU office.
She said the order of the court was not complied with and to make matters worse the accused persons are not present in court. “I think the prosecution should be in a position to tell the court why the order of the court is not complied with and why the accused persons are not present before the court. In anticipation of any application such cannot be made in the absence of the accused persons”.
“I believe this is a fit and deserving case, the court should make
an order for the matter to be stood down so that the accused persons can be produced before this court because they are in custody. As an
alternative we want to urge this honorable court to order the
unconditional release of the accused persons at this point based on
section 19 of the 1997 constitution  which guarantees their right to
liberty”, said Barrister Sallah-Njie.
For the elderly woman, she cited section 53 of the Women’s
Act which according to her provides special protection for the
elderly women. She said, the said section is not only law in the
Gambia but it also re-enforces the respect that we have for the
elderly as Gambians and Africans.
She said it is their submission that the physical well-being of this
woman is not protected and that it is in her favour for her to be
released.
“With regards to the lactating mother, we refer court to section 55
and 55(B) of the Women’s Act which gives special protection to all
this women standing trial. The PIU office where they are detained is
not an environment suitable for a lactating mother. By detaining a
lactating mother with her child in custody, the rights of two people
are flawed i.e. the Mother and the one month old baby and a two year
old at home”, she said.
She further referred the court to section 6 and 12 of the Children’s
Act, which gives every child the right to survival and development.
She said it’s obvious that the one month old baby detained with her
mother will not enjoy these rights under section 12(1) of the said
Act.
She referred the court to the case of Ebrima Sawaneh and 6 others  and the
case of the 7 journalists in which Sarata Jabbie a  lactating mother
was granted bail by the high court  taking into consideration her
condition as a lactating mother. She urged the court to apply the
case of Sarata Jabbie to grant bail to Kaddy Samateh, which is a high
court decision and which is binding on the lower court.
She also referred the court to the State Vs.  Mambuso Nzinande, a
South African case in which a lactating mother of a 36 months old baby
was remanded in custody and was released on the basis that her child
was dependant upon her for survival and development  and detaining her will not be conducive to the survival and development the child.
“The right of the child is always paramount and fundamental and
detaining a lactating mother will make a child vulnerable and will be
in danger and deprived of her rights. This is why the high court
ordered for the release of the accused person and we urge the court
to use this principle and secure the release of the lactating
mother”, said  defence counsel Sallah-Njie.
She said Sukai Dahaba one of the accused persons accelerated the
adjournment of this case when she collapsed in court. She said
section 29 of the Women’s Act guarantees her the right to access
health care  and that an order was made for her to have access to
health care which was flouted by the prosecution and based on that they
are urging the court to order for her release.
She referred the court to the State Vs. Bun Sanneh and others where
FLAG entered representation for Marie Sanneh as a female who was
suffering ill health while in custody and unfortunately suffered
miscarriage while in custody and bail was granted to her based on that
at the High Court.
“The accused persons’ constitutional right to liberty has been flouted by
the state, they are being detained beyond 72 hours.  To add salt to
injury, the prosecution has failed to produce them in court and their
right to fair hearing is flouted under section 24(3)(f) of the 1997
constitution. I therefore urge this honorable court to order for the
release of these vulnerable people whose rights have not only been
flouted under the Constitution, but the Women’s Act and the Children’s Act respectively. Therefore, I urge this court to order their conditional
and immediate release”, she submitted.
Responding to the application of the defence counsel, Sub-inspector
Colley, told the court that the accused persons in this case are not
under the custody of the Serrekunda Prosecuting Unit.
“The prosecution is not in a  position to clarify the reason why they are not in court today. To summarize the whole submission, the
case file in this matter, your worship,  has been sent to the Attorney
General’s Chambers and our instructions are that the state is coming
to take over this matter through the Director of Public Prosecutions
(DPP) who is empowered under section 85(1) of the Constitution to
undertake any  case and continue any criminal proceedings. Our further
instruction is that there will be an additional charge and additional
accused persons in this case,” said SI Colley.
However, defence counsel Sallah-Njie objected to this submission, she
said they made an application with regards to the non-compliance of
the order of the court. She said when the DPP takes over the case he will
tell the court which section empowers him to do so and that it is not
the responsibility of prosecutor Colley to tell the court.
“This case is IGP Vs the accused persons not the Serrekunda
Prosecuting Unit Vs. the accused person. So anybody appearing here is
representing the IGP who is the overall head of all the police units”,
submitted defence counsel Sallah –Njie.
Continuing his reply, SI Colley said the police have no intension to
disregard or disrespect the orders of the court. He said the
submission of the defence that the accused persons were denied access
to their lawyers should not be calculated to mean that the police
flouted the orders of this court.
“I submit that they are allegations that need proof and they have not
made it clear to this court how they were denied access at the PIU
office. We are aware of the provisions of section 19 of the
Constitution, sections 53 and 55  of the Women’s Act, and section 6 of
the Children’s Act. We submit that the prosecution and any other
security agents have no intension to disregard those sections
especially the provisions of the Constitution which is the supreme law
of the land”, said Prosecutor SI Colley.
He Continued, “We submit that the application of the defence be
disregarded and dismissed because there is nothing before the court
that this court should grant their application and I will add that
their application is premature”. This prompted laughter in the crowded
court room.
Replying on points of law Lawyer Sallah-Njie said the matter is so
serious that she finds it difficult to laugh. The prosecution said
their intention is not to flout the court order. Action speaks
louder than voice, we are in court; where are the accused persons? The
intention does not matter but the actions and normally when counsels
speak from the bar and present facts to the court, the court should
take judicial notice of that.
She said when a court order is flouted the court takes it seriously and
frowned at it and does not take excuses. “When the prosecution
believes in the supremacy of the Constitution it complies with the
orders of the court  and if they are dissatisfied with any decision of
the court, they should  appeal it rather than flouting it. This issue
deals with rights of women and children. Laws are not enacted for fun
but should be respected and enforced”, submitted Lawyer Sallah-Njie.
At this Juncture Barrister Sallah-Njie told the court to order for the
accused persons to be produced at the next adjourned date otherwise the case cannot proceed in their absence.

However, Magistrate Abeke did not order for them to be produced, but instead said let him just adjourned the matter for ruling.
The case was adjourned till Tuesday 17th May, 2016 at 2:30pm for
ruling. However, the presiding Magistrate who did not make any order
for the accused persons to be produced, said if they are not present he
will not deliver a ruling on the case.