By Yankuba Jallow
The State is expected to take over the ongoing criminal trial involving 19 Kanilai protesters at the Brikama Magistrate Court.
The 19 accused persons are facing the same charges at different courts where the Principal magistrate Omar Cham is presiding over the case of 13 of them and Faal 6 others.
The protesters were remanded in relation to the protest in Kanilai on Friday 2nd June 2017, which eventually led to a fracas between the indigenes of the village and Ecomig soldiers. It is said that the villagers came out to express their dissatisfaction in a peaceful protest about the manner the soldiers were treating them.
The 13 accused persons are facing charges before the Principal Magistrate are mostly men, including two women. They are Ebou Beteng Sanyang, Ansu Jatta, Lamin Kujabi, Sambujang Badjie, Kaddy Badjie, Mamadou Jang Jallow, Awa Badjie, Ebrima Jammeh, Baboucar Tamba, Assan Jammeh, Cham Jarju and Saikou Omar Sanneh.
They are all charged with unlawful assembly, contrary to Section 70 of the Criminal Code of the Gambia, in which they are alleged to have on or about the 2nd of June 2017, assembled in Kanilai and diverse places in the West Coast Region, with intent to commit offence by demonstrating without a permit from the office of the Inspector General of Police.
On count two, they were charged for inciting violence, contrary to Section 59 B (1) (a) (b) of the Criminal Code of the Gambia, by making statements calculated to bring death or physical injury to people on the same day.
In addition, they were also charged with prohibition of conduct, contrary to Section 9 of the Public Order Act, in which they are alleged to have committed themselves in manners likely to cause a breach of peace, by burning tyres and using provocative words against the members of the Ecomig and Gambia Armed Forces.
Furthermore, on count four they are all charged with rioting, contrary to Section 71 of the Criminal Code of The Gambia, where they are all alleged to have taken part in a riot against the Ecomig and Gambia Armed Forces.
Finally, on count 5 they are all charged with conspiracy to commit misdemeanour contrary to Section 369 of the Criminal Code of the Gambia, in which they are alleged to have conspired amongst themselves to riot against the presence of members of the Gambia Armed Forces and the ECOWAS mission in the Gambia.
The case will be coming on August 22 2017, for continuation of hearing. The case also has a pending application by the defence Lawyer, Barrister Ibrahim Jallow, who made a notice for referral to the Supreme Court of The Gambia for Interpretation of one of the counts in the charge sheet, which is in respect of the Public Order Act. He urged the Court for referral of the case for the Supreme Court to determine on this. He told the court that the count that is mentioned to be taken to the Supreme Court will affect all other counts in the charge sheet. Therefore, he urged the court to stay proceedings till the determination of the Supreme Court, relying on Section 127(1) and (2) of the 1997 Constitution of The Gambia that the Supreme Court has the exclusive original jurisdiction to interpret and enforce the Constitution. He added that the Constitutional provision is very clear and it is mandatory for the stay of proceedings and to refer the matter to the Supreme Court for determination.
Inspector K. Gibba said generally, criminal cases can get stay of proceedings when a substance is subjected to either appeal or by way of Constitutional review. However, Section 126 of the Criminal Procedure Code Cap 11:01 is clear and mandatory that criminal cases cannot be adjourned for more than 15 clear days. Therefore, he said, a stay of proceedings without any notice from the High Court will amount to the violation of Section 126 of the Criminal Procedure Code. He countered the defense counsel’s application saying it is not applicable in this matter and urged the court to allow the case to proceed and overrule the application. Inspector Gibba argued that Counsel Jallow cited Section 9 of the Public Order Act which is consistent with the 1997 Constitution.
Counsel Jallow in his response held that the Senior Prosecutor, Inspector Gibba, cited Section 126 of the Criminal Procedure Code which is inconsistent with the 1997 Constitution of The Gambia. Barrister Jallow referred the Court to Section 4 of the 1997 Constitution which depicts the supremacy of the constitution stating thereby, any law that is found inconsistent with its provision will be null or void to the level of its inconsistency. He said the provision of Section 126 of the Criminal Procedure Code is in contravention of a provision of the 1997 Constitution and will be regarded to be null and void to the level of its inconsistency.
He also interjected and countered the Inspector’s submission that the Supreme Court should make a notice to the court, is misconceived and is not in accordance with Section 127(2) of the Constitution. He further said Inspector Gibba has not cited any law to support his assertion that the Supreme Court should make a directive to the court to refer the matter to the Supreme Court for interpretation.
Counsel Jallow, in his bold state, referred the court to the case of Sabally and others vs The State. He urged the Court to overrule Inspector Gibba’s objection and refer the case to the Supreme Court of the Gambia. Magistrate Cham upon hearing the arguments of both the Defense and the Prosecutor adjourned the case to July 24th 2017, for ruing.