By Rohey Jadama Justice Simon A. Abi of the Banjul High Court yesterday, 24th February 2015, ruled that the witnesses in the homosexual trial involving one Momar Sowe will testify in chambers.When the case was called, A.M. Yusuf announced his appearance for the state while Mrs Gaye-Coker represented the accused. State Counsel Yusuf applied for the evidence of some of the prosecution witnesses who are to testify to be heard in chambers, arguing that these are security personnel whose identity should be protected from the public. Defence counsel Gaye-Coker, however, objected to the application on the basis that the state has not given any compelling reason as to why the evidence of these said witnesses should be heard in chambers. She argued that the only instances where proceedings may not be in public are provided for in section 24(2) of the Constitution of The Gambia 1997. After reading out the said section to the court, the defence counsel said the reason advanced by the state does not fall into any of the exceptions provided in section 24(2). She submitted further that it is not shown how hearing the witnesses in open court will prejudice the interest of justice and therefore urged the court to refuse the state’s application. Replying on points of law, state counsel Yusuf submitted that it is both trite and conventional in this jurisdiction that evidence of certain officers is usually heard in private and that this has been a common practice. He said the defence construed the exceptions in section 24(2) of the Constitution disjunctively instead of conjunctively and that the present application falls under the public order exception in section 24(2). He added that apart from the Constitution, the Evidence Act provides for the reception of evidence of certain officers in private and the present application is also covered by the Evidence Act. He concluded that the defence will not be prejudiced in anyway if the evidence of the witnesses is received in chambers since the accused and his counsel will both be present during testimony of the witnesses in chambers. Delivering his ruling, the trial judge said he had listened carefully to all the arguments from both sides. “Although this issue has come up from time to time before the courts, I do not think one particular case can be a proper guide in the determination of any other. This is because the facts and circumstances will definitely differ from case to case,” he said. Justice Abi pointed out that in this particular case, the application is based on the reason that the identity of the proposed witnesses who are security agents ought to be protected. “In the making of the application, no particulars were given as to the particular nature of the security work the proposed witnesses are engaged in. I know for a fact that security operatives who require such identity protection are mostly undercover operatives. Here, they are simply said to be security operatives,” said the judge. He said he could call for better particulars from the state but that itself, if done in open court, may endanger even more the security of the proposed witnesses whose identity the state wishes to protect. The trial judge added that on the question of Section 24(2) of the Constitution, both counsel dwelt on the provision without due reference to the operative words of the subsection which states “All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any court or other authority, including the announcement of the decision of the court or other authority shall be held in public”. “The operative words here are ‘proceedings relating to the determination of the existence or extent of civil rights or obligations’. I do not see how the subsection (2) will apply to criminal proceedings. There are other provisions both in the Constitution and other laws for hearings in public in criminal cases, but I have not come across a provision which disentitles the court from hearing witnesses in chambers in appropriate cases,” added the trial judge. He said he accordingly found and hold that Section 24(2) of the Constitution does not apply to criminal proceedings. He said in the instant case, in the absence of further particulars about the nature of the security work engaged in by the proposed witnesses, he will choose to err on the side of caution by protecting the identity of the proposed witnesses at this stage. “Should I be later furnished with a reason to hold otherwise, I will certainly remove any protection now granted,” he added. He concluded: “I therefore overruled the objection of learned defence counsel and the witnesses for the prosecution whom the State shall show are security operatives shall be heard in chambers.” The case was adjourned to the 5th of March 2015 at 2.15PM to 3.45PM; and on 12th March 2015 at 1PM respectively.]]>
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