By Yankuba Jallow
Magistrate Kebba Baldeh, in the case involving 30 civil servants, ruled that the prosecution cannot rely on section 169 of the Criminal Procedure Code (CPC) to continue with proceedings without obtaining a fiat from the Attorney General. He further urged the prosecution to obtain the fiat from the Attorney General, adding that proceedings cannot continue without the presence of the other accused persons.
He made this ruling at the Banjul Magistrates’ Court yesterday 18th October 2016.
When the case was called, Lawyer O.M.M. Njie announced his appearance for the 4th and 5th accused persons, Lawyer E. Sanneh appeared for the 1st, 3rd, 6th, 7th, 8th, 9th, 11th, 14th, 15th, 17th, 19th, 20th, 23rd, 24th, 27th and the 30th accused persons, Lawyer Y. Senghor announced her appearance for the 25th accused.
Inspector S. Sanyang and Sergeant 656 Jaiteh announced their representation of the Inspector General of Police (IGP).
However, the 2nd, 10th, 12th, 16th, 23rd, 25th, 29th and 30th were not present in the court.
Prosecutor Sanyang said that they are relying on section 169 of the C.P.C to amend or change the charges of the accused persons. He urged the court to revoke the bail of the accused persons as some of them have got police bail.
Counsel Njie argued that Inspector Sanyang has not explained how his application falls under section 169 of the C.P.C. He further argued that the inclusion of the additional accused persons is not applicable in this said section. He cited section 169 (1)(b) of the C.P.C for clarification of his defense. He reminded the court that on the 13th July 2016, on count one (1), they were charged on section 113 of the criminal code (C.C) and on count two (2) they were charged with abuse of office contrary to section 90 of the C.C.
The defence counsel said they have not been told how the previous charges are defective for them to be under section 169 (1) of the C.C. “From the submission made, the only change is the additional defendants, that is the list of the defendants is being changed. Looking at section 169, it is not a ground provided under section 169 of the C.P.C. and for that reason there is no legal reason,” submitted Counsel Njie.
As for Counsel Sanneh, he said section 169 of C.P.C allows for the charges seen to be amended. He added that the same section has clearly pointed out that for change to be made, there must be a material difference between the charges that were filed on the 30th August 2016 and that filed 18th October 2016 (yesterday).
Counsel Sanneh said for the clarity of the court, the charges that are filed on the 30th August 2016 are for all the accused persons. “Count (1) was filed contrary to section 113 of the C.C, whilst count (2) was on section 90 of the C.C,” he said.
He further argued that both the charges of 30th August 2016 and 18 October 2016 are the same in all aspects. “The inspector’s application for the amendment is severely misconceive,” he submitted.
He reminded the court that on the last adjourned date, the prosecutors were asked to regularize the charges by securing the charge sheet from the Attorney General to handle the matter to enable the prosecutors to continue with the case.
The defence counsel argued that there is no competent charge before the court since there is no fiat. He urged the court to consider or have regards on its previous order i.e. for the prosecutor to proceed with the matter as it is a matter of urgency.
He told the court that he wants it to be on record that the prosecution’s failure to proceed with this matter has severely flouted accused persons’ constitutional rights under section 24 of the constitution. He said section 90 (3) does not accord the state the discretion to file a charge on a person without a fiat. He referred the court to the case of the Attorney General v UDP (Court of Appeal case).
Counsel Senghor associated herself with the stated position of the counsels for the accused persons.
Replying to the arguments of the defence counsels, Inspector Sanyang said the application will not cause any injustice to the accused persons. He said the amendment came about when the counsels for the accused persons argued that the previous charges were defective. He said they based their arguments on the word ‘amended’ in the previous charges. He said they did that for the interest of justice.
Counsel Njie said they were helpful to the prosecutors but it is not reciprocated. He reminded the trial magistrate that this matter was first heard by Principal Magistrate Omar Cham in this same court and who is now on leave. He said Lawyer L.S. Camara pointed out to the said magistrate on the 7th September 2016 that the charges filed were for all the accused persons and absence of anyone of them will hinder the proceedings.
“Charge 2 is charge of abuse of office that requires a fiat from the Attorney General without which proceedings cannot continue,” said defence counsel Njie.
Lawyer Camara told the court that the charges on the 30th August are full of irregularities, adding that it is not only the title or heading which is wrong. He reminded the court that Inspector Sanyang made a promise before the principal magistrate that he will request for the fiat for the proceedings to continue but failed to do so.
He asked the court to consider two clear points which are that I. There is no change in the charge sheet and 2. He said there is no fiat, adding that proceedings cannot continue when charges before the court are without fiat.
The matter was adjourned to the 1st November 2016 at 1 pm for continuation of the hearing of the case.