By Rohey Jadama
The Gambia Court of Appeal presided over by Justices A.O Adogoke President, Edrisa Fafa M’bai and Awa Bah yesterday 5 December, 2016 granted bail to convicted Lawyer Ousainou Darboe, Secretary General of United Democratic Party and eighteen others.
The other appellants are Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Baboucarr Camara, Fakebba Colley, Ismaila Ceesay, Samba Kinteh, Dodou Ceesay, Samba Kinteh, Mamudou Manneh, Nfamara Kuyateh, Fanta Darboe, Lamin Njie, Juguna Suso, Momodou L.K Sanneh, Yaya Jammeh and Masaneh Lalo Jawla.
They are appealing against the conviction of Justice Eunice O. Dada of the Banjul High Court who convicted and sentenced them to three years imprisonment without hard labour.
When the case was called Lawyers Antouman A.B Gaye, Amie N.D Bensouda, Hawa Sisay-Sabally, Sheriff Marie Tambedou, Omar M.M Njie, Rachel Y. Mendy, Neneh M. Cham, Lamin S. Camara, Musa Bachily, Abdoulie Sissohor, Borry S. Touray, Yassin Seneghore, Combeh Gaye, H.Gaye and Anna Njie announced their representation for the state.
“My lady, I see that there is no one representing the state. We do not want to take advantage of anyone, may I respectfully apply for a stand down to enable us call the State to appear. I believe 15 minutes is reasonable time because they are just down the road here”, submitted Barrister Gaye.
In her ruling Justice Adogoke said it is rather unusual for the state not to be present because there are two sides in litigation. She went on to say that in the interest of justice the matter will be stood down to enable the state to appear.
Accordingly, the case was stood down for 15 minutes. When the case resumed Hadi Saleh Barkun, the Director of Public Prosecutions (DPP), A. Adeyemi, A. Mendy and K. Mbye appeared for the state.
“We are very sorry for our inability to be in court. It was not our desire but reasons beyond our comprehension”, said the DPP.
At this juncture Lawyer Gaye told the court that at the previous proceeding the court had made an order consolidating all the appeals and the matter was adjourned till yesterday for proof of service.
He continued: “I can confirm that the DPP has been served. Regarding the matter for ordering of briefs we have an application for bail. I have spoken to the DPP over the weekend about the application we are going to make in this court today”.
Barrister Gaye added that the court should take judicial notice of the fact that over the last few days there has been a significant change of circumstance in the country and that affects his client.
“As a result of 1st December Presidential election, change of government in this country are about to take place. The first appellant Mr. Darboe is the Secretary General of the United Democratic Party, one of the parties that formed the coalition. The incoming president is going to need his advice on several things”, submitted Lawyer Gaye.
He further told the court that they wished to make an oral bail application for their clients to be admitted to bail pending the final determination of the appeal.
Lawyer Gaye said the offences leading them to appeal are all bailable and that it is now 8 months since their conviction.
“It is for public interest for there to be an end to litigation. He said this must stop. If I look at you I see bold spirit not timorous spirit”, said Barrister Gaye.
Responding to the application the DPP said he did not have much to say. He said, “It is true that I received a call from Lawyer Bensouda at 12:47pm on Saturday informing me of their intention to bring an oral application before this court”.
The DPP said he responded by saying that the practice in the court of appeal is always to entertain bail application formally. He added that according to his instructions the bail application should be formal as that has been the practice.
Lawyer Gaye said for the special circumstances the court under its inherent jurisdiction can depart from its practice. He further referred the court to sections 68 and 12(1) of the Gambia Court of Appeal Act. He submitted that this is a court of law and equity, so it is therefore enjoined to do substantial justice.
In her ruling Justice Adogoke said section 12(1) of the Gambia Court of Appeal Act provides that the court could depart from the issue of non-conformity with the Gambia Court of Appeal rules. Accordingly the objection of the DPP was overruled and the defence counsel for the appellants was ordered to continue with the bail application.
At this point Lawyer Amie Bensouda was called to make an oral bail application for the 19 appellants. She submitted that the appellants having been convicted by the high court on various offences and in particular section 5 of the Public Order Act.
Barrister Bensouda cited two cases presided over by the court of appeal wherein the appellants were granted bail pending the final determination of the said appeals.
She said the records on this appeal will show that the appellants were convicted on the 20 July, 2016 and that previous to their conviction they have been in custody since April 16. He said they have therefore served 8 months in prison.
She went on, “The appeal before you will show that the grounds of appeal raised fundamental constitutional questions which is their democratic rights of expression. This is the premise for which the application for bail is based on”.
Lawyer Bensouda said it is their submission that there is special circumstance which should warrant bail. The record will show that all the appellants convicted are all members of the UDP. The coalition that should form a government comprises different parties and a leading member of which is UDP.
She said it is clear that from section 63 of the constitution of the Gambia and by virtue of the swearing in ceremony of president elect Adama Barrow slated for 18 January, 2017 as published in the gazette, a new government will have to be sworn in. She added that the transition process is a very short one and the leadership of the UDP have a crucial role to play in that process.
“They will not be able to do so unless this court grants them bail today. The record will show that 11 of them are executive members of the UDP. This court cannot be oblivious to the momentous decision of the Gambian people who by voting in the coalition government which comprises the UDP and other parties had manifested that UDP is one of the Parties they wished to lead them”, she submitted.
She drew the court’s attention to take judicial notice of the 1st appellant who practised in this court and that is a circumstance that deserves consideration.
Barrister Bensouda finally urged the court to exercise its discretion under section 12(1) of the Gambia Court of Appeal Act to grant bail to the appellants on their recognizance.
Responding to the application, the DPP said in view of the court’s ruling which was premised on the prevailing circumstance, he will leave it at the discretion of the court.
In her ruling, Justice Adogoke granted self-bail to Ousainou Darboe on self-recognizance. The other appellants were ordered to each deposit their international passports to the court registrar and to each produce a surety.
After the ruling of the court of appeal the supporters were chanting “Freedom new Gambia”. They later sang the National Anthem and Ligai Jot na Gambia Amna Bopam song.
Darboe and 18 others were able to fulfil the bail conditions and they finally reunited with their respective families.