By Yankuba Jallow and Hatab Nyang
In the ongoing Court Martial involving soldiers at the Yundum Military Camp, all twelve pleaded not guilty to all nine counts.
The 12 military officers were arraigned before a panel of five military men and a judge advocate at the Yundum Military Camp. The composition of the court includes Sainabou Ceesay- Wadda as the Judge, Colonel Salifu Bojang as President and other members of the panel are Lieutenant Colonel Seedy Joof, Major Lamin K. Sanyang, Major Abdoulie Manneh and Major Basiru Sarr whilst the waiting members are Lieutenant Colonel Mai Touray, Captain A. Dacosta and Captain Awa Bah.
Lawyer Sheriff Kumba Jobe appeared for the accused persons with Captains Suwaibou Jammeh, Bubacar Bah, Momodou Demba, Kebba Jabbie and Ansumana J. Sanyang, Lieutenants William Demba and Abdoulie K. Conteh. A.N Yusuf appeared for the State with Captain A.N Njie and Yusupha Jallow.
Lawyer A.N Yusuf applied for the charges that were instituted on the 10th October 2017, to be substituted with the one dated 22nd November 2017, to be read to the accused persons to take their plea.
Looking at the charge sheet, Lawyer Jobe for the accused persons asked the court whether it is normal practice in the general Court-Martial for charge sheets to be without the seal of the court because the charge sheet lacks the court’s seal. In response, he was told that he should take the charge sheet as it is.
When the charges were read to the accused persons, Lawyer Jobe objected to Count one of the charge sheet dealing with treason contrary to Section 35 (1) (d) of the Criminal Code of the Gambia. He said Count one does not conform to the provision of Section 39 of the Criminal Code. He cited the provision of Section 39 of the Criminal Code which provides that the Consent of the Attorney General be given before one can face charge on Treason (count 1). He said Section 39 makes it mandatory that for any person to be tried with treason, a written consent of the Attorney General must be provided. He added that the State has failed to provide the written Consent of the Attorney General because no document of such is provided in court and urged the court to suspend count one till the Attorney General’s consent is acquired and he urged the court not to continue with Count 1.
Counsel Yusuf on his counter argument told the court that Section 39 does not provide for the consent of the Attorney General to be provided to the accused persons or their lawyer. He added that before, during and after investigation, the Attorney General’s consent was sought in all stages. He also said before they instituted the charges at the Court-Martial, the consent was also sought which he said is a clear justification of the Consent of the Attorney General and urged the court to disregard the objection.
On his reply on points of law, he said Section 39 of the Criminal Code does not contravene in anyway the provisions of the 1997 Constitution of the Gambia. He said Section 39 of the Criminal Code does not talk about the prosecuting authority but rather the person charged and told the Court that the provisions of Section 39 is not ambiguous, as it clearly spelt out what needs to be done.
The Court overruled his objection with the view that since AN Yusuf of the State is a staff of the Attorney General, it shows his consent to the charge. She also held that Section 39 of the Criminal Code does not stipulate that the written consent of the Attorney General to the Court before trial commence.
After the accused persons took their plea of not guilty, Lawyer Gaye applied for bail for the 8th and 9th accused persons. He said the offences the accused persons are facing are bailable offences and relied on Section 99 of the Criminal Code, 19(5) and 24 of the Constitution. He reminded the court of presumption of innocence under section 24 of the constitution adding that granting of bail will further the accused persons’ fundamental human rights. He told the court that the accused persons are not likely to commit any offence during the course of the bail and they have their family members ready to bail them. He urged the court to grant them bail that is not excessive saying excessive bail condition may amount to denial of bail.
Lawyer Yusuf objected saying the laws Counsel Jobe was relying on are all general provisions of the law, adding that the provision of fundamental human rights are not absolute provisions. He cited section 19(4) to support his argument. He argued that the general provision of Section 99 of the Criminal Code cannot be applied on the matter relying on section 29 of the Gambia Armed Forces Act.
Lawyer Jobe in his response held that section 49(1) of the GAF Act subjects itself to subsection 4 of the same section.
“Therefore, when the Constitution grants for bail, no inferior law can derogate or deny such rights” he said.
He submitted that Section 49 of the Criminal Code does not deny the court the right to grant the accused persons bail.
The matter was subsequently adjourned to today at 10am.
The 12 soldiers are facing prosecution on 9 counts namely; commuting a civil offence punishable under section 83 of the Gambia Armed Forces Act (GAF Act) that is to say Treason Contrary to Section 35 (1) (d), incitement to mutiny contrary to section 47 (a) of the GAF Act, failure to report mutiny contrary to section 47 (e) of GAF Act, conspiracy to commit mutiny contrary to section $7 (b) of the GAF Act, Endeavour to persuade members of the Armed Forces to take part in mutiny contrary to section 47 (c) of the GAF Act, Negligent or wilful interference with lawful custody contrary to section 65 (c) of the GAF Act, Connivance of desertion contrary to section 54 (a) of the GAF Act, Connivance of desertion contrary to Section 54 (a) of the GAF Act and Negligent interference with lawful custody contrary to section 65 of the GAF Act.