By Demba (Banjul correspondent)
The defence counsel for the accused persons; Sainabou Mbye, Cherno Mbye and Kibili Dambelly, has urged the high court in Banjul, presided over by Justice Ebrima Jaiteh to grant her clients bail either conditionally or unconditionally.
Lawyer Kombeh Gaye made this call on Wednesday, 3rd August 2022, during the sittings of her clients, who are standing trial on one count of manslaughter, contrary to the criminal code, Laws of The Gambia.
When the case was called, Lawyer Gaye argued that the accused persons are innocent until they’re proven guilty, but not the other way round.
She submitted: “Assuming that there was even a charge file, then the court can hold that the State is serious about the case. But as it stands, the State is not serious about the matter. Therefore, the accused persons can’t continue to suffer while the State is putting their house in order. I urge the court to grant the accused persons bail either on condition or unconditional bail.”
Meanwhile, State Counsel P. Mendy, S. Camara and F. Drammeh announced their appearance for the State, while Lawyer Kombeh Gaye, Sagarr Thomas Jaiteh and M. Faye appeared for the accused persons.
State Counsel P. Mendy who first addressed the court, said: “My Lord, we want to apply for a week or two with a view to enable us file an indictment. We still don’t receive the post-mortem results from the Edward Francis Small Teaching Hospital. Again, we are working on an opinion which is still not yet ready. We are working on a legal opinion which is not yet finalised, but we believe it will be ready this week or early next week.”
The defence counsel Kombeh Gaye, while objecting the point raised by the State Counsel, said: “There is nothing before the court except a transferred file. My lord, since the matter was brought before the magistrate court, the State should have prepared and brought something before the court. Therefore, since there’s nothing before the court, I believe this court should invoke Section 19 of the Constitution in order to grant bail to the accused persons until such a time that the State is ready to bring an indictment before the court.”
She added: “Right now as it stands, my learned State Counsel can’t be certain as to how long it will take before they file an indictment. The opinion itself is not yet ready and the autopsy is not performed. Therefore, enough time has elapsed since the magistrate makes his order transferring the case. I believe the right of the accused persons is paramount at this stage and I believe the court has to protect the right of the accused persons.”
State counsel Mendy, however, told the court that this is the first time the State is appearing in this matter, adding: “Therefore, to suggest that the State is not serious about the matter is definitely not correct. In fact, it’s because of the seriousness of the matter that’s why we are here. The accused persons are charged with manslaughter and perhaps this is not convenient to just file an indictment of manslaughter which is not bailable. Yes we want to do justice to this matter and we want to professionally analyse the evidence that’s brought to us.”
State Counsel Mendy submitted: “Therefore, what we ask for is very specific. My lord with regard to what my learned friend said; that we don’t know what time we are going to file an indictment is definitely wrong. We told this court that we need a week or two to file our opinion and indictment. We are also opposing the defence counsel’s request for bail. The accused persons are charged with manslaughter and can’t be bailed. The accused persons shouldn’t be granted bail at this point in time. We are strongly opposing bail for the accused persons.“
However, defence counsel, Kombeh Gaye, responded: “My lord, the state knows that as soon as the matter comes to court, the order of the magistrate elapses and everything now is behind the court. Unfortunately, nothing has been filed by way of indictment. We now refer ourselves to the constitution which guarantees the right and liberty of the accused persons. Therefore, to oppose bail without any reason is unreasonable.”
Meanwhile, Justice Ebrima Jaiteh told the court that he has heard the concerns of both the state and defence; noting that “the practice here is in an event where an indictment is filed, you can make an oral application that’s provided in our rules.”
“However, before an indictment is filed, you should come by way of motion on notice that will come formally before the court, but unfortunately you have not filed any application that this court would consider.”
“I will suggest you should have filed your application and serve the state regardless of whatever charges they are charged with. You have a right to make an application and I also have a right to consider and we will have to look at it and see.”
“If I had seen that there are issues or whatever, I will be able to move it to the next level. When you have charges from the magistrate court, then those charges are not applicable before this court, then literally there is nothing before this court. If you have brought your application, I would have entertained your application formally and looked at the affidavit and I would have dealt with it,” said Justice Jaiteh.
He then adjourned the matter to Friday, 5th August 2022 at 10:00 am for further mention.