By Yankuba Jallow
Intense arguments on points of law yesterday 10 July 2017 dominated the ongoing criminal trial involving 13 residents of Kanilai standing trial at the Brikama Magistrates’ Court.
Defence counsel representing the 13 accused persons urged the court, presided over by Principal Magistrate Omar Cham, to refer the matter to the Supreme Court for interpretation. He argued that one of the charges touches on section 9 of the Public Order Act which demands that permission be acquired before engaging in a demonstration contrary to the constitution which does not make it a requirement. He told the court that the count when taken to the Supreme Court will affect all other counts in the charge sheet.
Therefore, he urged the court to stay proceedings till the determination of the said count by the Supreme Court. He relied on Section 127(1) and (2) of the 1997 Constitution of The Gambia which states that the Supreme Court has the exclusive original jurisdiction to interpret and enforce the Constitution. He added the Constitutional provision is very clear and it is mandatory for the stay of proceedings and to refer the matter to the Supreme Court for determination.
Inspector K. Gibba, the prosecutor for his part, said generally, proceedings of criminal cases can be stayed when a substance is subject to either appeal or by way of Constitutional review. He argued that stay of proceedings without any notice from the High Court will amount to the violation of Section 126 of the Criminal Procedure Code. He submitted that the defense counsel’s application is not applicable in this matter and urged the court to allow the case to proceed and overrule the application. He also added that Section 9 of the Public Order Act is not found to be inconsistent with the 1997 Constitution.
Counsel Jallow in his reply argued that when a law is inconsistent with the Constitution it is the Constitution that takes precedence and that the same applies to section 126 of the Criminal Procedure Code. Barrister Jallow referred the Court to Section 4 of the 1997 Constitution which depicts the supremacy of the constitution. He added that any law that is found inconsistent with its provision will be null or void to the extent of its inconsistency. He said the provision of Section 126 of the Criminal Procedure Code is in contravention of a provision of the 1997 Constitution and thereby it will be regarded to be null and void to the level of its inconsistency.
He urged the Court to overrule Inspector Gibba’s objection and refer the case to the Supreme Court of The Gambia.
Magistrate Cham upon hearing the arguments of both the Defense and the prosecutor adjourned the case to July 24, 2017 for ruling.