By Rohey Jadama
Magistrate Hilary Abeke of the Kanifing Magistrates’ Court yesterday, 19 May, 2016 granted bail to 6 women arrested on 9 May at Kanifing.
The defendants were granted bail in the sum of D2, 000 (Two thousand dalasi) and ordered to each produce one Gambian surety who shall swear to an affidavit of means and deposit their ID cards to the Registrar of the court.
They were all charged with seven counts of ’Conspiracy to commit felony’, ‘Unlawful assembly’, ‘Riot’, ‘Incitement of violence’, ‘Riotously interfering with vehicles, ‘Holding procession without a permit’, and ‘Disobeying an order to disperse from an unlawful procession’.
The six accused persons are Kaddy Samateh, lactating mother of a month old baby, Isatou Saidy, who is 60 years old, Lele Bojang, Sukai Dahaba, Fatou Sarr and Amie Touray.
When the case was called, Lawyer Sheriff Kumba Jobe appeared for the state, while the accused persons were represented by Lawyers Rachel Y. Mendy, Loubna Farage, Sagarr Jahateh and Yassin Senghore , who are all members of the Female Lawyers Association of the Gambia (FLAG).
After the announcement of their representation, Lawyer Jobe told the court that they have filed new charges against the accused persons.
At this stage, Lawyer Mendy, the lead defence counsel, applied bail for the accused persons pursuant to Section 19 of the Constitution and section 99 (1) of the Criminal Procedure Code (CPC). She further informed the court that they do not have access to the accused persons and would want to be given the opportunity to speak to them before their plea is taken.
Responding to the application of the defence counsel’s application, Lawyer Jobe said he understands the concerns of the defence in respect of having access to their clients but said that these are assertions that he cannot agree or disagree to.
He cited sections 141 and 145 of the Evidence Act, stating that he who alleges must prove and that since there is nothing to show that counsels did any efforts they cannot presume or conjure that it is the fact.
The state counsel added they have no problem in allowing counsels to have access to the accused persons before their plea is taken provided that they can immediately talk to them and they make progress. He said on the issue of the bail application, the practice in this jurisdiction is that counsel will make bail application after the plea of the accused persons are taken.
He referred the court to the case of the State vs Ousainou Darboe and others which, he said, is a similar factual case in which plea of the accused persons was taken and thereafter their counsels made their application for bail.
“This application should not be allowed at this stage of the case. What is prudent to be done in this case is to allow the accused persons to take their plea and thereafter the application for bail to be made. We want to crave the indulgence of the court to disallow the application at this juncture and give 10 minutes stand down to counsels to talk to their clients and thereafter we proceed with the pleas of the accused persons because it is in the interest of justice that the matter proceeds,” said State Counsel Jobe.
Responding to the state counsel, Lawyer Mendy said she is surprised that her learned friend does not know the difference between civil and criminal matters because sections 141 and 145 of the Evidence Act deal with civil matters. She said in a criminal case, the burden of proof is on the prosecution.
“My learned friend is so young at the bar and the ethics of the bar is that when a lawyer speaks from the bar it is taken as the truth. It is fortunate that the accused persons are here and they can tell the court whether they have access to their lawyers or not. The accused persons are charged with seven criminal offences and there is no law that says that access to counsel must be limited to 10 minutes. Their right to counsel is enshrined in the constitution and in fact that is the first thing to do even before bringing them to court and it is not for the prosecution to give us time but the court,” said defence counsel Mendy.
She further argued that the application for bail can be applied once the accused persons are brought to court and that the prosecution has not cited any law which states that bail can be taken after the pleas of the accused persons are taken.
Lawyer Mendy said section 19 (4) and (5) of the 1997 Constitution states that bail can be applied even at the preliminary stage.
At this juncture, the 3rd accused person, Lele Bojang was seen being supported by two female Police Intervention Unit (PIU) personnel to walk out of the court. She later collapsed outside and started screaming before being rushed to the PIU clinic for treatment.
The presiding magistrate said the accused person moved in a manner that she is not supposed to move and as such he cannot deliver a ruling in her absence. He ruled that the matter be stood down until anytime that Madam Bojang is back in court.
After about 3 hours, both the prosecution and the defence told the court to proceed with the ruling and plea taking of the accused persons in the absence of the 3rd accused person.
Delivering his ruling, Magistrate Abeke said the defence would be allowed 1 hour to enable them to talk to their clients and that bail application can be brought after the pleas of the accused persons are taken.
At this juncture, the defence counsels informed the court that when the matter was stood down, they were able to speak with their clients and that the court can now proceed with the plea taking.
When the charges were read out to the five accused persons present, they all pleaded not guilty to all the seven counts.
At this juncture, Lawyer Mendy told the court that she wished to apply for bail for all the accused persons based on the grounds already placed before the court on the previous proceedings. She further submitted that bail be granted with reasonable conditions.
Responding to the bail application of the defence counsel, State Counsel Jobe told the court that based on the special circumstances, they are not opposing bail. He, however, urged the court to place bail conditions that commensurate with the charges so as to secure the attendance of the accused persons whenever necessary as required by the court.
In his bail ruling, Magistrate Abeke said having gone through all the charges, and considering Isatou Fatty, the month old baby, the elderly woman, and the others who are often falling sick, he is granting bail to all the accused persons on the conditions stated above.
The case was adjourned to Tuesday 24 May, 2016 at 2pm.