By Rohey Jadama
Magistrate Hilary Abeke of the Kanifing Magistrates’ Court yesterday 17 May, 2016 said his hands are tied and that the state should go back with the case of 6 women who were arrested near Kanifing.
The six accused persons are Kaddy Samateh, a lactating mother of a one month old baby, Isatou Saidy, who is 60 years old, Lele Bojang, Sukai Dahaba, Fatou Sarr and Amie Touray. They were charged with seven counts of ‘Unlawful assembly’, ‘Riot’, ‘Incitement of violence’, ‘Holding procession without a permit’, ‘Idle and disorderly behavior’, ‘Common nuisance’ and’Prohibition of conduct conducive to the breach of the peace’.
When the case was called, Lamin Jarju and Sheriff Kumba Jobe, state
counsels, appeared for the Inspector General of Police (IGP), while the
accused persons were represented by lawyers Janet Sallah-Njie, Loubna
Farage, Haddy Dadeh Njie, Sagarr Jahateh and Anna Njie, who are all members of the Female Lawyers Association of the Gambia (FLAG).
After announcing their representations, the presiding magistrate told
Ms. Samateh, the lactating mother who was carrying her baby in
the dock, and Isatou Saidy, the elderly woman, to sit down.
At this juncture, the lead defence counsel Lawyer Sallah-Njie told the
court that the matter is for ruling. She further said that as a team of defence lawyers they are relieved that even though no order was made for the accused persons to be produced before the court, they are in court as required by law.
“We are objecting for ruling to be delivered today simply because the
ruling is for bail and the Office of the Director of Public Prosecution
has taken over the case. The matter is for bail as I was briefed. We
will file fresh charges against the accused persons and all what we
are asking for is a short adjournment to enable us to file,” said
State counsel Jarjue.
Responding to the prosecution’s objection, Barrister Sallah-Njie told
the court that she is a bit flabbergasted with the position of the
prosecution. She said she does not understand how and in what position
of the law is the objection of the State counsel based on regarding the delivery of a ruling when the court already adjourned the matter for ruling.
She added that she did not make any application warranting
objection and that she only reminded the court about the ruling.
Lawyer Sallah-Njie said the prosecution’s objection is erroneous
because the ruling has nothing to do with bail.
“This ruling is consistent and the order should be obeyed by the
prosecution and the defence,” she said. She added that until the ruling is appealed against it has to be obeyed.
She further said that there is no legal basis and that the taking over of the case cannot bar this ruling by the court. She said the prosecution’s objection is misconceived and that she is urging the court to disregard it.
The defence counsel further said that the prosecution told the court that they intend to file a fresh charge and that this court should stay off proceedings. “This is an aberration and he does not provide
justification to stay off proceeding. What is before the court is that
the state has taken over and if they intend to file, they should apply
for the charges to be struck out because the accused persons are denied
their right to liberty. Orders of the court are meant to be obeyed,” said Lawyer Sallah-Njie.
Prosecutor Jarjue wanted to refer the court to what he said earlier but the defence counsel interjected thus telling the State counsel to reply on points of law and not to reiterate his earlier argument.
“Let me make my submission or I will not sit down. Let her allow us
to make our submission. She did not raise a single law so there is no need to reply on points of law. I will allow the court to do a ruling,” said the prosecutor.
In his ruling, the presiding magistrate said he will urge both parties,
especially the counsels in the matter, to go through the case file
especially the one taking over. He added that the one handing over the case should properly brief the one taking over it otherwise it will bring misunderstanding.
Magistrate Abeke therefore over ruled the prosecution’s objection on the delivery of a ruling on the matter.
The trial magistrate said he has read through the arguments of both parties and that in his prior ruling he had told the prosecution to go and put their house in order and to seek the consent of the Attorney General and that the charges are incompetent.
He said he had also ordered for the accused persons to be granted police bail.
Magistrate Abeke said the defence counsels argued that they were denied access to their clients. He said they did not tell the court what they did to secure the bail of the accused persons and that they
have not exhibited it and as such the court cannot speculate.
“In my ruling on the 12 of May 2016, I advised the defence to apply for a police bail and the court cannot make any order when the accused persons are not before the court. The charges were not even read to them and they are not arraigned and they are not before the court and as such the court cannot do anything about it,” said Magistrate Abeke.
At this juncture, Lawyer Sallah-Njie said based on the ruling, she is
applying for the charges to be struck out. “When charges are found
to be incompetent, they ought to be struck out as required by the law,” said the defence counsel.
Responding to the defence counsel’s application, the prosecution argued that the ruling was very clear and that there is nothing before the court.
He added that he is very surprised to hear such an application from the defence. He said they are applying for a short adjournment to enable them file fresh charges.
“For records purposes, my application is for the charges to be struck
out, not the process. If there is nothing before this court, why
should we adjourn the case? When charges are improper, they should be
struck out and the application for adjournment is misconceived,” submitted Barrister Sallah-Njie.
She further said that certain issues were raised which were ignored in the ruling of the magistrate such as the right of the vulnerable. “These issues are still relevant because you can hear the cry of a baby in court,” said Barrister Sallah-Njie.
However, the presiding magistrate said he has repeatedly been telling the prosecution to go back and put their house in order and which they did not do but instead handed over the case to the State. He said even
the application for an adjournment is not before him.
“My hands are tied and the state should go back with their case,” ruled Magistrate Abeke.