Witnesses to testify in Camera in Suspected Homosexual trial

By Rohey Jadama
Justice Simon A. Abi of the Banjul High Court yesterday, 24th February 2015, ruled that the witnesses in the homosexual
trial involving one Momar Sowe will testify in chambers.When the case was called, A.M. Yusuf announced his appearance for the
state while Mrs Gaye-Coker represented the accused.
State Counsel Yusuf applied for the evidence of some of the
prosecution witnesses who are to testify to be heard in chambers,
arguing that these are security personnel whose identity should be
protected from the public.
Defence counsel Gaye-Coker, however, objected to the application on
the basis that the state has not given any compelling reason as to why
the evidence of these said witnesses should be heard in chambers. She
argued that the only instances where proceedings may not be in public
are provided for in section 24(2) of the Constitution of The Gambia
1997.
After reading out the said section to the court, the defence counsel
said the reason advanced by the state does not fall into any of the
exceptions provided in section 24(2). She submitted further that it is
not shown how hearing the witnesses in open court will prejudice the
interest of justice and therefore urged the court to refuse the
state’s application.
Replying on points of law, state counsel Yusuf submitted that it is
both trite and conventional in this jurisdiction that evidence of
certain officers is usually heard in private and that this has been a
common practice. He said the defence construed the exceptions in
section 24(2) of the Constitution disjunctively instead of
conjunctively and that the present application falls under the public
order exception in section 24(2). He added that apart from the
Constitution, the Evidence Act provides for the reception of evidence
of certain officers in private and the present application is also
covered by the Evidence Act. He concluded that the defence will not be
prejudiced in anyway if the evidence of the witnesses is received in
chambers since the accused and his counsel will both be present during
testimony of the witnesses in chambers.
Delivering his ruling, the trial judge said he had listened carefully
to all the arguments from both sides. “Although this issue has come up
from time to time before the courts, I do not think one particular
case can be a proper guide in the determination of any other. This is
because the facts and circumstances will definitely differ from case
to case,” he said.
Justice Abi pointed out that in this particular case, the application
is based on the reason that the identity of the proposed witnesses who
are security agents ought to be protected. “In the making of the
application, no particulars were given as to the particular nature of
the security work the proposed witnesses are engaged in. I know for a
fact that security operatives who require such identity protection are
mostly undercover operatives. Here, they are simply said to be
security operatives,” said the judge.
He said he could call for better particulars from the state but that
itself, if done in open court, may endanger even more the security of
the proposed witnesses whose identity the state wishes to protect.
The trial judge added that on the question of Section 24(2) of the
Constitution, both counsel dwelt on the provision without due
reference to the operative words of the subsection which states “All
proceedings of every court and proceedings relating to the
determination of the existence or extent of civil
rights or obligations before any court or other authority, including
the announcement of the decision of the court or other authority shall
be held in public”.
“The operative words here are ‘proceedings relating to the
determination of the existence or extent of civil rights or
obligations’. I do not see how the subsection (2) will apply to
criminal proceedings. There are other provisions both in the
Constitution and other laws for hearings in public in criminal cases,
but I have not come across a provision which disentitles the court
from hearing witnesses in chambers in appropriate cases,” added the
trial judge.
He said he accordingly found and hold that Section 24(2) of the
Constitution does not apply to criminal proceedings.
He said in the instant case, in the absence of further particulars
about the nature of the security work engaged in by the proposed
witnesses, he will choose to err on the side of caution by protecting
the identity of the proposed witnesses at this stage. “Should I be
later furnished with a reason to hold otherwise, I will certainly
remove any protection now granted,” he added.
He concluded: “I therefore overruled the objection of learned defence
counsel and the witnesses for the prosecution whom the State shall
show are security operatives shall be heard in chambers.”
The case was adjourned to the 5th of March 2015 at 2.15PM to 3.45PM;
and on 12th March 2015 at 1PM respectively.