‘Aggravated homosexuality’ case transferred to high court, Accused persons remanded

By Mamadou Dem
Magistrate Samsideen Conteh of the lower court in Banjul Wednesday,
24th December, 2014 transferred the ‘aggravated
homosexuality’ case of suspected homosexuals to the high court and ordered the accused persons to be remanded in prison custody.The accused persons are facing trial on a single count charge of
‘Aggravated Homosexuality’ contrary to Section 144A (1) (f) of the
Criminal Code as amended by the Criminal Code (Amendment) Act 2014.

During the course of the proceeding, Modou Lamin Bittaye, the third
accused person, who is said to be an asthmatic patient, collapsed in
court. While standing in the box, he complained to his counsel, Mr.
Borry Touray, that he is suffering from an asthma attack. The lawyer then
applied to the court for his client to be allowed to be seated and
which was granted. However the condition of the accused worsens as
he wheezed heavily, he collapsed on the floor and was eventually
rushed to the hospital under the escort of NIA operatives.

Barrister Touray represented Bittaye, the third accused, Mrs Combeh Gaye
Coker, is representing Momar Sowe and Alieu Sarr, the first and second
accused persons respectively.
The particulars of offence on count one states that Momar Sowe at
various times and dates and at diverse places in the  Gambia and
elsewhere within the jurisdiction of the  court engaged in homosexual
acts with Modou Lamin Conteh, Iker Nyan, Albert and Kebba Ceesay and
thereby committed an offence.

On Count two, the particulars of offence states that Alieu Sarr at
various times and dates and at diverse places in the Gambia and
elsewhere within the jurisdiction of the court, engaged in homosexual
acts with Sheikh Bob, Mamond, Fallou Camara, Serigne Mboob and Modou
Boy Jallow and thereby committed an offence.

The third count states that Modou Lamin Bittaye, at various times and
dates and at diverse places in the  Gambia and elsewhere within the
jurisdiction of the  court, engaged in homosexual acts with Saloum
Njie, Njanko Ceesay and Jibbou Jatta and thereby committed an offence.

The trio, who denied any wrongdoing, was subsequently remanded in
prison custody pending their appearance at the high court.

Prior to the court ruling, Hadi Saleh Barkum, the Director of Public
Prosecutions (DPP), applied for the accused persons to be remanded in
prison custody as well as for the matter to be transferred from the
lower court to the high court. He argued that this type of case is
normally tried at the superior court.

This application was objected to by Barrister Touray who argued that
the lower court has the jurisdiction to handle all offences except
treason and economic crime. He added that the court can also
take judicial notice that the high court is on vacation.

The defence counsel further told the court that allowing the state’s
application for a transfer would mean that the matter will not be
heard until after the vacation of the high court.

“Secondly, I wish to make an application for the court to order the
severance of the counts for the third accused to be tried separately
with the first and second accused persons respectively,” he submitted.

He argued that the alleged cases are not committed at the same time.  He
said “They are not offences of the same transactions, same and
similarities, the dates, time and places have been omitted from the
charge sheet,” he said.

The counsel for the third accused further argued that the locus of the
alleged crime was not identified, adding that the guiding law of
jurisdiction of offences is permitted under Section 114 of the
Criminal Code.

He said they are not joined in the same counts but are tried together.
“Let me echo with caution that Section 112 of the Criminal Code does
not avail the prosecution in this case. There is only one offence
before this court allegedly committed by different persons at diverse
places and time,” he submitted.

He continued: “Even from the particulars of offence, the testimonies
are exclusive and information regarding the location and time has been
suppressed.”

He argued that if evidence or evidences are adduced during the course
of trial which has the tendency of embarrassing them to the ingredient
of the offences, the rest of the accused persons stand at trial for
that embarrassment.
He finally submitted that the state has the capacity for the severance
of the charges and therefore urged the court for the trial to be
conducted separately.

Responding to the defence’s application, the DPP urged the court to
transfer the case to the high court by virtue of Section 5 of the
Criminal Procedure Code. He said the defence’s application should have
been before the taking of the plea at the commencement of the case. He
cited Section 161A and Section 218 of the CPC and
urged the court to disregard the defence’s application and grant the
prosecution’s prayers.

Replying on points of law, Lawyer Touray submitted that the state’s
submission that he does not identify the class of persons that should
be joined amounts to a conjecture. He added that he was not applying
for the amendment of the charges before the court.

“The charges before the court are substantive charges and not a
holding charge,” he concluded.

Delivering the ruling, Magistrate Conteh, in addition to transferring
the matter to the high court and remanding the accused persons, also
ordered for the third accused to be tried separately.

When the third accused person collapsed in court, his female
relatives, who were also in the courtroom, were seen crying.