Justice Simon A. Abi of the Banjul High Court is supposed to rule on an application for bail for Momar Sowe and Alieu Sarr respectively who are accused of multiple counts of homosexuality.When the case was called Mrs. Gaye-Coker, Sagarr Jahateh and Lamin S. Camara announced their appearances for the accused persons, while A. M. Yusuf and Aji Amie Ceesay represented the state.
In her oral submission in support of the bail application defence counsel Gaye-Coker, told the court that there is a bail application dated 28th of January, 2015 asking for the applicant (Momar Sowe) to be bailed and that the affidavit is supported by 7 paragraphs. She told the court that they intend to rely on all the paragraphs of the said affidavit. She said the state filed an affidavit opposing the bail application sworn to by Mam Fatou Secka, a legal clerk at Attorney General Chambers.
“My lord I wish to point out that the offences which the applicant is charged with are bailable offences and section 24 of the constitution has stated that anybody accused of a crime shall be presumed innocent until proven guilty by the court, therefore the applicant’s right to bail does not need to be unnecessarily restricted”, submitted Counsel Gaye-Coker.
She referred the court to paragraph 4(a) of the applicant’s affidavit which states that the applicant was arrested since the 9th of November, 2014 around Senegambia in Kololi and was subsequently detained at the National Intelligence Agency (NIA). She further stated that the applicant was only arraigned before the Banjul Magistrates’ Court on a single count of ‘Aggravated Homosexuality’ on the 24th of December, 2014 in which the applicant denied any wrong doing and the applicant was remanded at the mile two central prison.
Counsel Gaye-Coker indicated that the applicant has friends and families within the country and the applicant also has sureties` who can sign his bail bond and who will ensure that he will appear in court. She told the court that the applicant cannot interfere with any witness if granted bail. Furthermore, the applicant has no authority or power to interfere with any investigation which the state wishes to conduct. More fundamentally, the applicant is not likely to abscond if granted bail. She said there is no evidence that the applicant will abscond contrary to the affidavit filed in opposition.
“The state has stated a rather discriminatory position as they stated that the applicant was arrested in the midst of homosexuals and that is is suspicious, but no matter how a suspicion is, it cannot be a crime. The essence of bail is to ensure that the applicant remains free and make himself available for trial at all times and I urge this court to grant the application”, submitted Counsel Gaye-Coker.
State counsel, A. M. Yusuf told the court that they have filed an affidavit in opposition and that they wish to rely on all the paragraphs. He said it is trite law that all motions should be accompanied by supporting affidavit and there are rules and regulations governing affidavit. He submitted that paragraph 4 of the affidavit does not comply with section 92 of the Evidence Act.
“The name of the informant, the time he was informed was not stated in the motion and without the affidavit the motion cannot stand alone. Therefore, I urge the court to strike out the motion and dismiss the application,” submitted Prosecutor A.M Yusuf.
In her submission in support of Alieu Sarr’s application for bail, the defence Counsel Gaye-Coker intimidated to the court that the applicant was hospitalised at Edward Francis Small Teaching Hospital. She said the medical condition of the applicant charged with a criminal offence is a very important part of the bail application. “My lord we wish to adopt the previous arguments in support of the application and we urge this honourable court to grant the application”, submitted defence Counsel Gaye-Coker.
However, A.M Yusuf also told the court that he would like to adopt all the previous arguments.
The case was adjourned till 17th of February, 2015 for ruling on both applications for bail.