By Kebba Jeffang
Brikama Magistrates’ Court presided over by Principal Magistrate Omar Cham ruled that Sheikh Muhideen Hydara and Buyeh Touray, the Caliph General and Alkalo of Darsilameh Sangajor respectively, shall enter their defence as they have a case to answer.
This ruling followed the written submission of a ‘no case to answer’ by the defence counsel after the prosecution closed its testimonies when three witnesses testified.
In his submission last week, Lamin K. Mboge, the defence counsel, on Count One, cited Section 166 of the Criminal Procedure Code, arguing that there is no evidence to support the charge in the first instance and that the evidence of the prosecution has been so manifestly discredited in cross examination that it cannot be relied on by the court to convict the accused persons.
“There is no evidence of conspiracy at all in this case. Conspiracy is the agreement by two or more persons to effect an unlawful purpose and its proof is by inference from the actions or inactions of the conspirators towards achieving their common goal. None of the three prosecution witnesses have said anything about the accused persons conspiring to commit a felony. The court cannot speculate or infer from the circumstantial evidence for the court to act upon. The court therefore has no choice but to acquit and discharge the accused persons,” submitted Mboge.
On Count Two, Mboge said the accused are alleged to have disobeyed lawful orders of the President and prayed on the 29th July instead of 28th July 2014 and thereby committed an offence. He submitted that the first question to ask which begs for an answer is whether the President can make lawful orders before even looking at the evidence. He said the word ‘lawful’ is derived from law and it means any act or omission authorized by law made by National Assembly. He added that the 1997 Constitution of the Gambia under Section 25(1)(c) allows freedom of religion and that Constitution is the Supreme Law of the land and any law which conflicts with the said Constitution is null and void and of no legal effect.
“It is clear from the Constitution that the President cannot and does not make lawful orders but executive orders. I therefore submit that Count Two cannot be maintained as it is unconstitutional,” Lawyer Mboge submitted.
However, in a written reply filed by the prosecution yesterday, 27th January, 2015 which was submitted by Chief Inspector Camara, the prosecution argued that the duo has a case to answer because evidence was corroboratively made out from the three prosecution witnesses. It stated that all the three witnesses told the court that the message was delivered to the two accused persons as the head of the village and the Imam of Sangajor.
On Count Two, CI Camara submitted “the President is not in law of this land but has a policy whenever he made a pronouncement that must be obeyed by all citizens of the Gambia. The President has powers to give orders directly or indirectly and should be obeyed. The president’s executive orders should be obeyed by all citizen, failure to which is disobedience to a lawful order.”
During the course of the proceedings, Lawyer Mboge informed the Court that he has been served with the prosecution’s reply on that very morning.
However, in his response, he said the evidence before the court had never disclosed that the message was delivered to the two accused persons contrary to paragraph 5, line 4 of page 1 of prosecution’s response. He said the evidence before this court states that the message was delivered to the 2nd accused and Imam and not the 1st accused person.
“I have listened to the prosecution’s reply and also the defence lawyer’s reply on to that too. I put into concentration the principle of a ‘no case to answer’. I have also referred myself to Section 166 of CPC on ‘no case to answer’. And I therefore hold that the accused persons have a case to answer,” ruled Magistrate Cham.
At this juncture, the matter was adjourned till 5th February, 2015 at 2: 30pm to hear from defence witnesses.