Written by Lawyer Malick H.B Jallow.
It is quite tempting to comment on this case that is unprecedented in many respects.
The amount of public concern and clamor in it has been astounding. In the end, some would say it ended in something of an anti-climax given that the matter was withdrawn by the state before the trial got to its natural end or conclusion.
The trial has however brought to the fore some vitally important inherent challenges in the criminal justice system relating to investigation and prosecution of criminal matters, especially capital offences.
Ordinarily, the DNA test results that apparently tipped the wheels of justice in Bob Keita’s favor ought to have formed part of the investigations that informed the charge of rape against him and not as a prosecutorial afterthought a few years after the gentleman had already spent a significant part of his life in remand.
Ironically the Defence Counsel for Bob Keita Mr.LS Camara was seemingly vehemently opposed to the order for DNA on the grounds of fairness and protested about it quite passionately to the presiding Judge. Interestingly Mr.LS Camara has actually appeared as Counsel for the presiding Judge Momodou SM Jallow in the matter of Samsudeen Phatey v. Momodou SM Jallow at the High Court before Justice Amina Saho Ceesay pending judgment.
The case also brings to the fore the need for more stringent prosecutorial safeguards in the investigation and prosecution of capital offences in particular. Indeed many have been a victim of malicious allegations of rape for example only to be acquitted and discharged by a court of law. By then they would have probably spent a few years in remand, given the prevailing yet contentious perception that rape in particular is not a bailable offence, with the attendant stigma and incredible emotional and financial challenges that come with it.
Essentially, the corridors of justice should not be used as a tool for settling personal scores. If an individual is guilty of rape the person deserves to be punished accordingly likewise if it turns out that allegations are unproven and that it was motivated by malice then the complainant and the prosecuting authority ought to be held accountable as well, mainly through financial compensation of the Victim/alleged perpetrator
It is equally important that before an individual is arrested and charged with rape or any capital offence by the police, express authorization of the DPP or the Attorney General is sought and obtained. This would help close the gap on the exploitation of the criminal justice system to settle personal scores and for malicious allegations to be nipped in the bud right from the onset and not a few years after remand in custody of the alleged perpetrator.
I have also heard from some quarters that our laws do not accommodate the possibility of seeking compensation by an accused person who is a victim of malicious or negligent prosecution. I find this statement very unfortunate and quite an overstatement. There are indeed provisions both in the Constitution and statutory law that can neatly accommodate a legal process seeking compensation for malicious or negligent prosecutions most notably under the fundamental rights and freedoms column of the 1997 constitution. Indeed I believe the time has arrived to test the waters in that direction to ensure that alleged perpetrators also obtain redress where the charges are not substantiated in court and where it can be reasonably inferred from proceedings and the background that underpin such proceedings that the allegations were motivated by malice or a desire to settle personal scores.
Malick H.B Jallow Esq.
Founder/President, Malick Jallow Foundation for Children (MJFC)