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Momodou
Denmark
11525 Posts |
 Posted - 17 May 2016 : 22:25:51
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PRODUCE THE ACCUSED OR RELEASE THEM – Female lawyers’ team tell court
By Rohey Jadama
Foroyaa: May 17, 2016
Barrister Janet Sallah-Njie, lead defence counsel for 6 women standing trial after staging a protest at Westfield Junction yesterday 16 May, 2016 urged the Kanifing Magistrates’ Court to order their production or unconditional release.
The accused include Kaddy Samateh, a lactating mother of a 1 month old baby, Isatou Saidy an elderly woman of 60 years of age and 4 others. The case is presided over by Magistrate Abeke.
The accused persons are facing 7 counts of Unlawful Assembly, Riot, Incitement of Violence, Holding a procession without a permit, Being Idle and Disorderly, Common Nuisance and Prohibition of conduct conducive to breach of peace.
Ten female lawyers are representing the accused. They are Janet Sallah-Njie, Rachel Y. Mendy, Haddy Dandeh Njie, Loubna Farage, Sagarr Jahateh, Combeh Gaye, Neneh Cham, Yassin Senghore, Anna Njie and F. Mahoney.
Sub-Inspector Colley announced his representation for the Inspector General of Police.
“As you rightly observed the accused persons are not present before this honorable court and this being a criminal charge before the court and the charges are not struck out. So as we speak the charges are still pending before the court and the matter cannot proceed in their absence”, said Lawyer Sallah-Njie, the leading defence lawyer.
She continued, “Based on the records, the last time the matter came up an application was made for their release which was unfortunately not granted and the court has ordered that the accused persons be granted police bail based on the facts and circumstances that one of the women is a lactating mother breast feeding a 1 month old baby and the other woman is an elderly woman and one of them nearly collapsed in court in the last proceedings”.
She told the court that the accused persons were not granted police bail and that counsels went to the Police Intervention Unit (PIU) office to facilitate their release, but that they were denied access to the accused persons at the PIU office.
She said the order of the court was not complied with and to make matters worse the accused persons are not present in court. “I think the prosecution should be in a position to tell the court why the order of the court is not complied with and why the accused persons are not present before the court. In anticipation of any application such cannot be made in the absence of the accused persons”.
“I believe this is a fit and deserving case, the court should make an order for the matter to be stood down so that the accused persons can be produced before this court because they are in custody. As an alternative we want to urge this honorable court to order the unconditional release of the accused persons at this point based on section 19 of the 1997 constitution which guarantees their right to liberty”, said Barrister Sallah-Njie.
For the elderly woman, she cited section 53 of the Women’s Act which according to her provides special protection for the elderly women. She said, the said section is not only law in the Gambia but it also re-enforces the respect that we have for the elderly as Gambians and Africans.
She said it is their submission that the physical well-being of this woman is not protected and that it is in her favour for her to be released.
“With regards to the lactating mother, we refer court to section 55 and 55(B) of the Women’s Act which gives special protection to all this women standing trial. The PIU office where they are detained is not an environment suitable for a lactating mother. By detaining a lactating mother with her child in custody, the rights of two people are flawed i.e. the Mother and the one month old baby and a two year old at home”, she said.
She further referred the court to section 6 and 12 of the Children’s Act, which gives every child the right to survival and development.
She said it’s obvious that the one month old baby detained with her mother will not enjoy these rights under section 12(1) of the said Act.
She referred the court to the case of Ebrima Sawaneh and 6 others and the case of the 7 journalists in which Sarata Jabbie a lactating mother was granted bail by the high court taking into consideration her condition as a lactating mother. She urged the court to apply the case of Sarata Jabbie to grant bail to Kaddy Samateh, which is a high court decision and which is binding on the lower court.
She also referred the court to the State Vs. Mambuso Nzinande, a South African case in which a lactating mother of a 36 months old baby was remanded in custody and was released on the basis that her child was dependant upon her for survival and development and detaining her will not be conducive to the survival and development the child.
“The right of the child is always paramount and fundamental and detaining a lactating mother will make a child vulnerable and will be in danger and deprived of her rights. This is why the high court ordered for the release of the accused person and we urge the court to use this principle and secure the release of the lactating mother”, said defence counsel Sallah-Njie.
She said Sukai Dahaba one of the accused persons accelerated the adjournment of this case when she collapsed in court. She said section 29 of the Women’s Act guarantees her the right to access health care and that an order was made for her to have access to health care which was flouted by the prosecution and based on that they are urging the court to order for her release.
She referred the court to the State Vs. Bun Sanneh and others where FLAG entered representation for Marie Sanneh as a female who was suffering ill health while in custody and unfortunately suffered miscarriage while in custody and bail was granted to her based on that at the High Court.
“The accused persons’ constitutional right to liberty has been flouted by the state, they are being detained beyond 72 hours. To add salt to injury, the prosecution has failed to produce them in court and their right to fair hearing is flouted under section 24(3)(f) of the 1997 constitution. I therefore urge this honorable court to order for the release of these vulnerable people whose rights have not only been flouted under the Constitution, but the Women’s Act and the Children’s Act respectively. Therefore, I urge this court to order their conditional and immediate release”, she submitted.
Responding to the application of the defence counsel, Sub-inspector Colley, told the court that the accused persons in this case are not under the custody of the Serrekunda Prosecuting Unit.
“The prosecution is not in a position to clarify the reason why they are not in court today. To summarize the whole submission, the case file in this matter, your worship, has been sent to the Attorney General’s Chambers and our instructions are that the state is coming to take over this matter through the Director of Public Prosecutions
(DPP) who is empowered under section 85(1) of the Constitution to undertake any case and continue any criminal proceedings. Our further instruction is that there will be an additional charge and additional accused persons in this case,” said SI Colley.
However, defence counsel Sallah-Njie objected to this submission, she said they made an application with regards to the non-compliance of the order of the court. She said when the DPP takes over the case he will tell the court which section empowers him to do so and that it is not the responsibility of prosecutor Colley to tell the court.
“This case is IGP Vs the accused persons not the Serrekunda Prosecuting Unit Vs. the accused person. So anybody appearing here is representing the IGP who is the overall head of all the police units”, submitted defence counsel Sallah –Njie.
Continuing his reply, SI Colley said the police have no intension to disregard or disrespect the orders of the court. He said the submission of the defence that the accused persons were denied access to their lawyers should not be calculated to mean that the police flouted the orders of this court.
“I submit that they are allegations that need proof and they have not made it clear to this court how they were denied access at the PIU office. We are aware of the provisions of section 19 of the Constitution, sections 53 and 55 of the Women’s Act, and section 6 of
the Children’s Act. We submit that the prosecution and any other security agents have no intension to disregard those sections especially the provisions of the Constitution which is the supreme law of the land”, said Prosecutor SI Colley.
He Continued, “We submit that the application of the defence be disregarded and dismissed because there is nothing before the court that this court should grant their application and I will add that their application is premature”. This prompted laughter in the crowded court room.
Replying on points of law Lawyer Sallah-Njie said the matter is so serious that she finds it difficult to laugh. The prosecution said their intention is not to flout the court order. Action speaks louder than voice, we are in court; where are the accused persons? The intention does not matter but the actions and normally when counsels speak from the bar and present facts to the court, the court should take judicial notice of that.
She said when a court order is flouted the court takes it seriously and frowned at it and does not take excuses. “When the prosecution believes in the supremacy of the Constitution it complies with the orders of the court and if they are dissatisfied with any decision of the court, they should appeal it rather than flouting it. This issue deals with rights of women and children. Laws are not enacted for fun but should be respected and enforced”, submitted Lawyer Sallah-Njie.
At this Juncture Barrister Sallah-Njie told the court to order for the accused persons to be produced at the next adjourned date otherwise the case cannot proceed in their absence.
However, Magistrate Abeke did not order for them to be produced, but instead said let him just adjourned the matter for ruling.
The case was adjourned till Tuesday 17th May, 2016 at 2:30pm for ruling. However, the presiding Magistrate who did not make any order for the accused persons to be produced, said if they are not present he will not deliver a ruling on the case.
Source: Foroyaa
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11525 Posts |
Posted - 18 May 2016 : 22:33:12
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“My hands are tied; the State should go back with their case” Says Magistrate Abeke in the trial of 6 women
By Rohey Jadama
Foroyaa: May 18, 2016
Magistrate Hilary Abeke of the Kanifing Magistrates’ Court yesterday 17 May, 2016 said his hands are tied and that the state Magistrate Hilary Abekeshould go back with the case of 6 women who were arrested near Kanifing.
The six accused persons are Kaddy Samateh, a lactating mother of a one month old baby, Isatou Saidy, who is 60 years old, Lele Bojang, Sukai Dahaba, Fatou Sarr and Amie Touray. They were charged with seven counts of ‘Unlawful assembly’, ‘Riot’, ‘Incitement of violence’, ‘Holding procession without a permit’, ‘Idle and disorderly behavior’, ‘Common nuisance’ and’Prohibition of conduct conducive to the breach of the peace’.
When the case was called, Lamin Jarju and Sheriff Kumba Jobe, state counsels, appeared for the Inspector General of Police (IGP), while the accused persons were represented by lawyers Janet Sallah-Njie, Loubna Farage, Haddy Dadeh Njie, Sagarr Jahateh and Anna Njie, who are all members of the Female Lawyers Association of the Gambia (FLAG).
After announcing their representations, the presiding magistrate told Ms. Samateh, the lactating mother who was carrying her baby in the dock, and Isatou Saidy, the elderly woman, to sit down.
At this juncture, the lead defence counsel Lawyer Sallah-Njie told the court that the matter is for ruling. She further said that as a team of defence lawyers they are relieved that even though no order was made for the accused persons to be produced before the court, they are in court as required by law.
“We are objecting for ruling to be delivered today simply because the ruling is for bail and the Office of the Director of Public Prosecution has taken over the case. The matter is for bail as I was briefed. We will file fresh charges against the accused persons and all what we are asking for is a short adjournment to enable us to file,” said State counsel Jarjue.
Responding to the prosecution’s objection, Barrister Sallah-Njie told the court that she is a bit flabbergasted with the position of the prosecution. She said she does not understand how and in what position of the law is the objection of the State counsel based on regarding the delivery of a ruling when the court already adjourned the matter for ruling.
She added that she did not make any application warranting objection and that she only reminded the court about the ruling.
Lawyer Sallah-Njie said the prosecution’s objection is erroneous because the ruling has nothing to do with bail.
“This ruling is consistent and the order should be obeyed by the prosecution and the defence,” she said. She added that until the ruling is appealed against it has to be obeyed.
She further said that there is no legal basis and that the taking over of the case cannot bar this ruling by the court. She said the prosecution’s objection is misconceived and that she is urging the court to disregard it.
The defence counsel further said that the prosecution told the court that they intend to file a fresh charge and that this court should stay off proceedings. “This is an aberration and he does not provide justification to stay off proceeding. What is before the court is that the state has taken over and if they intend to file, they should apply for the charges to be struck out because the accused persons are denied their right to liberty. Orders of the court are meant to be obeyed,” said Lawyer Sallah-Njie.
Prosecutor Jarjue wanted to refer the court to what he said earlier but the defence counsel interjected thus telling the State counsel to reply on points of law and not to reiterate his earlier argument.
“Let me make my submission or I will not sit down. Let her allow us to make our submission. She did not raise a single law so there is no need to reply on points of law. I will allow the court to do a ruling,” said the prosecutor.
In his ruling, the presiding magistrate said he will urge both parties, especially the counsels in the matter, to go through the case file especially the one taking over. He added that the one handing over the case should properly brief the one taking over it otherwise it will bring misunderstanding.
Magistrate Abeke therefore over ruled the prosecution’s objection on the delivery of a ruling on the matter.
The trial magistrate said he has read through the arguments of both parties and that in his prior ruling he had told the prosecution to go and put their house in order and to seek the consent of the Attorney General and that the charges are incompetent.
He said he had also ordered for the accused persons to be granted police bail.
Magistrate Abeke said the defence counsels argued that they were denied access to their clients. He said they did not tell the court what they did to secure the bail of the accused persons and that they have not exhibited it and as such the court cannot speculate.
“In my ruling on the 12 of May 2016, I advised the defence to apply for a police bail and the court cannot make any order when the accused persons are not before the court. The charges were not even read to them and they are not arraigned and they are not before the court and as such the court cannot do anything about it,” said Magistrate Abeke.
At this juncture, Lawyer Sallah-Njie said based on the ruling, she is applying for the charges to be struck out. “When charges are found to be incompetent, they ought to be struck out as required by the law,” said the defence counsel.
Responding to the defence counsel’s application, the prosecution argued that the ruling was very clear and that there is nothing before the court.
He added that he is very surprised to hear such an application from the defence. He said they are applying for a short adjournment to enable them file fresh charges.
“For records purposes, my application is for the charges to be struck out, not the process. If there is nothing before this court, why should we adjourn the case? When charges are improper, they should be struck out and the application for adjournment is misconceived,” submitted Barrister Sallah-Njie.
She further said that certain issues were raised which were ignored in the ruling of the magistrate such as the right of the vulnerable. “These issues are still relevant because you can hear the cry of a baby in court,” said Barrister Sallah-Njie.
However, the presiding magistrate said he has repeatedly been telling the prosecution to go back and put their house in order and which they did not do but instead handed over the case to the State. He said even the application for an adjournment is not before him.
“My hands are tied and the state should go back with their case,” ruled Magistrate Abeke.
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PRODUCE THE ACCUSED OR RELEASE THEM
