High Court Orders the Release of Kanifing South Imam

By Kebba Jeffang
After 156 days of detention at the National Intelligence Agency (NIA)Imam Sawaneh of Kanifing South Mosque
without access to his family, the high court in Banjul presided over
by Justice Basiru Mahoney yesterday, 21 March, 2016, ordered for the
release of Alhaji Ousman Sawaneh, the Imam of Kanifing South Mosque
either conditionally or unconditionally.Lawyer Sheriff Tambadou, who filed the application on behalf of
the two wives of the detained Imam, namely Mariama Trawally and Rohey
Ceesay, said the applicant is praying that a writ of habeas corpus ad
subjiciendum be issued and directed to the NIA of the Gambia to have
the body of Alhaji Ousman Sawaneh brought immediately before the court
to undergo and receive all such matters and things as the court shall
then and there consider of and concerning him in this behalf; a
declaration that the applicant who is presently detained and in the
custody of the NIA is being unjustifiably detained; an order directing
the unconditional release from detention and custody of Imam
Sawaneh.
He said the said application is filed pursuant to section 133 of
the Constitution of the Gambia. He said this section gives power to
the high court to have supervisory jurisdiction over all lower courts
and adjudicatory authorities in the Gambia and make order for habeas
corpus cases. He said the application is supported by 18 paragraphs in
which they fully rely on all. He said particular attention is given to
paragraphs 3, 4 and 5.
The applicant’s lawyer told the court that the deponent said on the paragraphs of the affidavit
“on or about in the morning of the 18th October, 2015, the applicant
was arrested from his residence in Kanifing South by the NIA and was
taken to the headquarters of the NIA at Marina Parade in Banjul; that
I am aware that  on the 19th October, 2015, Sheriff Marie Tambadou, of
counsel, was allowed by the NIA to see and talk to the applicant
briefly at their headquarters at Marina Parade in Banjul; that I am
also aware and have been informed by Mr. Sheriff Marie Tambadou, who
has conduct of this application, and I verily believe the same to be
true, that the applicant was arrested and was being detained about a
petition the applicant and two other persons had addressed to the
President of the Gambia.”
Counsel for the applicant told the court that paragraph 10 of the
affidavit states that the wife said she was informed by the counsel
and verily belief the same to be true that he tried to see the
applicant on the 21st October, 2015, but he was informed by the
officials of the NIA that the applicant was being moved to
Jangjangbureh prison in the Central River Region on that very day. He
said the wife said she and the other members of the family have
been to Jangjangbureh prisons to inquire about the applicant but they
were told that he is not there.
Counsel said the deponent added, “We do know where the applicant is being held and nobody else has seen
him apart from counsel on the 19th October 2015 at the NIA
headquarters”.
Counsel noted, “These facts in the affidavit are well established. The facts clearly
showed the violation of the applicant’s rights to personal liberty.
Section 19 of the Constitution of the Gambia states that ‘every
person shall have liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived
of his or her liberty except on such grounds and in accordance with
such procedures as are established by law’. I therefore urge the court
to grant the application,” submitted lawyer Tambadou.
Meanwhile, appearing for the second respondent, the Attorney General,
Hadi Saleh Barkun, the Director of Public Prosecutions (DPP), said they
prefer to hear from the 1st respondent NIA. He urged the court to look
at the prevalence of circumstances in the matter before granting the
application. He cited paragraph 10 which indicates that the counsel
tried to see the applicant on the 21st October, 2015 but he was
informed by the officials of the NIA that the applicant was being
moved to Janjangbureh prison. He said there are no specific names of
the officers who gave that information to the counsel mentioned in the
affidavit.
“Every allegation has to be substantiated. Section 11 is vague and
vacant. There is no time also mentioned. In essence, fact in an
affidavit cannot be consumed by the court unless they are
substantiated. We want the court to take into account o all these
information raised,” said DPP Barkun.
Responding to DPP’s objection, Lawyer Tambadou said the DPP at the
last hearing date announced his representation for both the 1st and 2nd
respondents where he addressed on points of law. He said on the issue
of the detail of the affidavit as highlighted by the DPP, the counsel
said DPP has nothing to say in reply to the application because such
issues do not arise. He urged the court to grant the application.
In delivering the ruling on the case, Justice Mahoney said considering
the case, and the power vested in the high court in the respect of its
supervisory authority and also in accordance with the right to liberty
as enshrined in the constitution, the court has no other option but to
order the conditional or unconditional release of the applicant.