Posted by By Pierre Njie
The State Prosecutor in the trial of the leaders of the 3 Years Jotna movement, has told the High Court that the State is objecting to the bail application of the accused persons made by the defence counsel.Prosecutor Patrick Gomez told Justice Aminata Saho-Ceesay of the Banjul High Court that they are opposed to the bail application made by the defence counsel for the eight accused persons.
The accused persons are facing charges of unlawful assembly, rioting after proclamation and demolishing public structures. They are yet to take their plea. They were first arraigned before the Kanifing Magistrate’s Court and the matter was transferred to the High Court because the lower court lacks the power to try offences that attract life imprisonment sentences upon conviction.
Appearing before the High Court on Tuesday, 11th February 2020, Defence Counsel Rachel Y. Mendy informed the court they have filed a 26- paragraph affidavit in support of their bail application. She said the 4- paragraph affidavit in opposition by the prosecution is defective because it contravenes Schedule One of the Evidence Act, which according to her, is a mandatory provision. She averred that the prosecution is conceding to their bail application as she told the court that there is nothing in the affidavit in opposition to their bail application that says that the prosecution is objecting to the application.
“The averment that the bail application has been overtaken by events that has no basis in law,” she said.
She submitted that once a person is in custody, he or she can bring as many bail applications as possible irrespective of what stage the proceeding is. She told the court the averment by the prosecution does not mean they are opposing to the bail application. She urged the court to grant the accused persons bail, saying there is nothing in the prosecution’s affidavit that opposed bail and therefore, they are conceding.
She submitted that the accused persons are presumed innocent until they are proven guilty and the burden of proving that the accused persons are not entitled to bail is on the prosecution.
“The prosecution in this case have failed to discharge that threshold. They have failed to provide this honourable court any fact or evidence which will convince this honourable court to refuse bail,” she remarked.
She said there is no formal indictment before the court. She added that the purported indictment by the prosecution has not been given effect by the court as required by Sections 115 and 116 of the Evidence Act. She stated that the two Sections of the Evidence Act provide that indictments should be certified. She said once a document is filed and certified, it becomes a public document and it is from there, the court can give effect to it.
“The court cannot give effect to photocopies of documents as originals,” she stressed.
The Defence Counsel said Section 87 of the Evidence Act is a general provision while Section 93 (which is the First Schedule) is a specific provision and it is a mandatory provision. She relied on the recent Supreme Court case of Ya Kumba Jaiteh versus the Clerk of the National Assembly and others as said general provisions are inapplicable where there is a specific provision.
Another Defence Counsel Lawyer Lamin S. Camara, said the application for bail was premised on Sections 19 (5) and 24 of the Constitution as well as Section 99 (1) of the Criminal Procedure Code. He said the 1997 Constitution provides for the protection of liberty and dignity of people.
“One of the cardinal principles of our criminal justice system is the presumption of innocence regardless of the indictment before any court. This cardinal principle is enshrined in Section 24 (3) of the Constitution,” Camara told the court.
The case was adjourned to Friday, 14th February 2020.