Villager granted bail in case clouded in controversy

A villager, Sambayel Baldeh who is facing trial in a case fraught with
controversy was on Tuesday 15 September 2015 granted bail by the
Jareng Magistrates’ court.The accused, a farmer from Choya, Niamina West District, is charged
with disobeying the chief and threatening violence.
The marathon proceeding of 15 September was controversial from beginning to end.
Defence Counsel Borry S. Touray, representing the accused was not
pleased with the failure of the police to bring the remanded accused
to court till 4.22pm. He asserted that it is the responsibility of the
police and the prison wardens to produce remand prisoners in court
and that the court has no business in it.
When the case was called, Defence Counsel Touray demanded for a good
explanation from the prosecution on why the court could not proceed at
10am but they had to wait until 4:24, “because really we cannot
continue like this”.
In response, prosecutor 4370 E. Jallow blamed miscommunication between
the prosecution and the defence counsel for the delay.
Mr Touray was not satisfied with the explanation and this led to a
long drawn out argument which lasted for about 30 minutes. At this point,
Defence Counsel Touray pressed for the case to proceed.
“Perhaps, let’s move to the substance, we are here and we have to
move. Let the prosecution produce their witnesses, it is now 5
O’clock,” he remarked.

ON THE CALLING OF WITNESSES
However, there were no prosecution witnesses in court and Prosecutor
E. Jallow stated that, “Your worship on the side of the witnesses, it
was jointly agreed to call the case today and then adjourn it, and as
a result, when I received the text message of the coming of the
Defence Counsel from a third party, I attempted to call my witnesses
in the evening but I was able to get one out of the four witnesses
using a mobile phone and he was Ousman Sowe; but he told me that he
was sick and was at the health centre. I could not get the other three
witnesses by mobile phone. Even this morning, I was trying to contact
them but to no avail.”
In response defence Counsel Touray submitted, “This is a set up
to get the accused detained and deny him fair trial. Prisoners have no
holiday because they are in detention.
“Your worship, the reasons forwarded by the prosecutor are not
tenable; that the whole day he could not get all the four witnesses,”
he stressed.
B.S Touray stated that all the people attending the court are from
Choya and they are all poor farmers and that none of them are being
paid or use official vehicle.
He submitted that his client is being denied fair and expeditious trial.
“He has been denied his right to fair trial,” asserted Counsel Touray.

DEFENCE APPLY FOR COURT TO STRIKE OUT THE CASE
Following the failure of the prosecution to produce a witness during
the proceeding, Defence Counsel B.S.Touray applied under sections 160
and 163 of the Criminal Procedure Code for the court to strike out the
case due to lack of diligent prosecution.
He told the court that he is making the submission on the ground that
as senior counsel, he sacrificed to reach the court early by waking up
at 4am at a great cost to the accused, only for the case to be called
at 4:22pm and to add salt to injury, the prosecution failed to produce
their witnesses.
“Africa cannot be a serious continent because even if you want to
work, you cannot work” remarked Counsel Touray.
“I apply for the court to strike out this case because the accused is
taken as a prisoner for no just cause and if the prosecution is not
ready to prosecute the case then the court should strike it out,”
submitted Defence Counsel B.S Touray.
Prosecutor E. Jallow opposed the application, asserting that the
Prosecution is ready to continue with their case.
He argued that this is the only day that their witnesses have been
absent from court.
Counsel Touray stated that the prosecution witnesses were not in court
in the last proceeding. “The prosecution was in court in the last
proceeding to make an application for the review of the previous
case,” said Touray.
The prosecutor reiterated that the prosecution is in court and the
reason why the witnesses were not in court was based on the reasons
forwarded above.
“Your worship, this is a criminal trial and there should be room for
giving the benefit of doubt; and regarding the detention of the
accused, the prosecution does not object to his bail. The accused
should be given bail by the court, but the prosecution cannot grant
him bail,” submitted Prosecutor E. Jallow. He also submitted that
sections 160 and 163 do not apply because the prosecution was in
court.
In rebuttal, Counsel Touray submitted that the mere appearance of the
prosecutor in court without the prosecution witnesses does not
justify what sections 160 and 163 are saying.
At this stage, Magistrate Surahata Danso told the Defence counsel that
he will adjourn and give his ruling in the next sitting.

ON THE ISSUE OF BAIL
Magistrate Surahata Danso told the prosecutor that the issue of bail
is for the court and he should not talk about it.
He said counsel stated that the denial of bail to the accused is
unconstitutional but that he denied him bail based on his previous
court record.
Counsel Touray reiterated that that record is not before the court and
that Justice must not only be done but should be seen by the ordinary
man/woman who has no interest in the case to be done.
He indicated that if the previous record of the court is not
available, then he does not know how his client could get a fair
trial. He urged the trial to be so conducted that justice will be seen
to be done.
At this stage, counsel Touray made a fresh application for bail on the
ground that the trial may be subjected to delay and if the court
exercises delay, it may place hardship on the side of the accused
person.
The accused was granted bail on condition that he produce two sureties who must produce their
biometric ID Cards and signed a reconnaissance in the sum of D15,000
each.
The case was adjourned till 6 October, 2015.