Court Grants Paulo Djabi & 3 Others Bail, Refused Transfer Of The Case To High Court 

By Landing Ceesay 

Magistrate Omar Jabang of the Kanifing Magistrates’ Court on Thursday 14th September 2023 granted bail to Paulo Djabi, Nandine Pereira, Mamadu Djabi, and Secuna Jabi after Drug Law Enforcement Agency (DLEAG) charged them with 15 counts of drug-related offenses, including money laundering. 

On the 13 of September 2023, the accused persons were arraigned before Magistrate Jabang on fifteen counts offence of possession of Prohibited Drugs, dealing in prohibited drugs, and conspiracy all contrary to the Drug Control Act Cap 13:05 Vol II revised Laws of The Gambia, 2009, and Money Laundering contrary to the Anti-Money Laundering and Combating of Terrorist Financing Act of the Gambia 2012. 

After the accused pleaded not guilty, the prosecution, represented by Commissioner A. Ceesay, requested that the case be transferred to the High Court, arguing that money laundering cases can only be tried there. Commissioner Ceesay also requested that the accused be detained pending the outcome of the investigation.

Defense counsel Lamin S. Camara objected to both requests, arguing that the Magistrates’ Court has jurisdiction to hear and determine the case. Camara urged the court to jealously protect its jurisdiction.

On September 14, 2023, during the hearing of the application, Magistrate Jabang issued a ruling affirming the court’s jurisdiction to handle the case.

Furthermore, Magistrate Jabang determined that according to the stipulations in the Anti-Money Laundering Act and the absence of any ouster clause, both the Magistrates’ Court and the High Court are empowered to exercise jurisdiction in cases involving Money Laundering offenses.

“I cannot therefore hold that this court lacks the jurisdiction to try the offence of Money Laundering without any ouster clause to that effect in the Act. The application of the prosecution to have this matter transferred to the High Court for want of jurisdiction is hereby refused, and the same dismissed.” 

Magistrate Jabang ruled that the Magistrates’ Court has the discretion to grant bail in all offences except those punishable by death or life imprisonment. He said that this power, like all other discretionary powers, must be exercised judiciously and in accordance with the law. He also noted that all the charges against the accused persons are bailable offences.

“The prosecution in their application for the accused persons to be remanded did not advance any reasons to warrant this court to refuse bail to the accused persons. Even though the prosecution did not advance any such reason, the decision to grant or refuse bail rest absolutely with the court, as stated above. It was the submission of the Defence that the accused persons were arrested on the 27th of August 2023. They were not arraigned before the court until the 4th of September 2023. 

“This runs foul to the provisions of section 19(3)(b) of the 1997 Constitution of The Gambia. Their detention surpassed the seventy-two hours constitutional safeguard, thus making their detention & a violation of the Constitution. Even with just this, can this court continue to remand the accused persons without granting them bail? I believe not. This is because if the court proceeds to deny the accused persons bail, it will be validating the unconstitutional detention of the accused persons. A court should not be a party to such an enterprise,” Magistrate Jabang ruled. 

Magistrate Jabang emphasized that holding an accused individual in custody beyond the constitutionally mandated seventy-two-hour limit cannot be justified on the grounds of an ongoing investigation.

He clarified that if investigators anticipate that they won’t be able to conclude their inquiries within the prescribed timeframe to present the accused before a legally authorized court, the law provides clear guidance. 

He pointed out that Subsection 4 of Section 19 of the Constitution explicitly specifies that only a court has the authority to validate or extend the detention of an accused beyond this timeframe.

Magistrate Jabang firmly established that the decision to detain an accused person beyond seventy-two hours rests exclusively with the judiciary and no one else.

He underscored that obtaining permission through a formal application from a court with the requisite jurisdiction is the only legitimate avenue for extended detention of an accused during ongoing investigations.

“This could be done by way of a summon and the same be subjected to a periodic review to avail the court the chance to see if the circumstances warranting the continuous detention of the accused are still existing or not. This is in line with international best practices and standards and ran as safeguard against arbitrary detention. In any event, this application for the continuous detention of an accused person must be brought before the lapse of the seventy-two-hour period upon arrest.

“Based on this clear violation of the Constitution by the relevant authority, I am minded to grant the accused persons bail. There is no counter position to show that the investigations are ongoing such that the accused persons’ will interfere. There is also nothing to show that if they are granted bail, they will abscond the jurisdiction. There is also nothing to show that if they are granted bail, they will commit another offence. Therefore, from all of the foregoing, the accused persons are granted bail,” Magistrate Jabang ruled.  

Magistrate Jabang then proposed the following conditions for granting bail to the accused individuals.

Magistrate Jabang ruled that the 1st and 2nd accused persons may be granted bail either by posting a bond of One Million Dalasis (D1,000,000) each or by securing four Gambian sureties who can vouch for the same amount. Meanwhile, the 3rd and 4th accused can obtain bail by either depositing D300,000 each or securing two Gambian sureties each to guarantee the same amount.

Additionally, Magistrate Jabang ordered that each surety must provide an affidavit of means for the specified sum and surrender their identification cards to the court’s registrar as part of the bail conditions.

“The accused persons are to also surrender all their travel documents with the Registrar of the court pending the hearing and determination of the case. If same, is with the investigators or DLEAG then they must be provided to the Registrar of the court forthwith,” Magistrate Jabang ruled.