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Justice Jobarteh’s Ruling On Sainabou Mbye, 2 Others’ Bail Application

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Sainabou Mbye, Cherno Mbye and Kibili Dambelly on arrival at the High Court on 11th August 2022

By Landing Ceesay

Justice Sidi K. Jobarteh of the High Court of the Gambia said the bail application filed by Sainabou Mbye and 2 others lacks merits.

The accused persons (Sainabou Mbye, Cherno Mbye and Kibili Dambelly) filed an application for the Court to grant them bail unconditionally, since the State is yet to file an indictment against them. 

In delivering her ruling on the bail application, Justice Jobarteh said she has carefully considered the submissions made on both sides and the processes before the court and it is noted that the State has not filed any affidavit in reply to the additional affidavit filed in support of the summons and the affidavit in reply.

She said it is settled law that uncontroverted and unchallenged evidence should be deemed admitted. 

“However, one need not reply to an affidavit if one intends to rely on points of law. This has been expounded in the case of Antoine Banna (supra). I hold the submissions of the State counsel in respect to the affidavits filed as proper and in accordance with the law,” she said.

Justice Jobarteh said the applicants’ counsel in moving the summons relied on the provisions of the 1997 Constitution, the Criminal Procedure Code (CPC), the African Charter on Human and Peoples Rights, and the International Covenant on Civil and Political Rights.

The judge said the Gambia is a signatory to the international conventions cited by the counsel and which laws are applicable to The Gambia.

“The articles cited from these conventions have been domesticated in Gambian laws and replica of the rights enshrined under chapter four of the 1997 Constitution which the court shall heavily rely on,” she said. 

 Jobarteh said the applicants have been charged and arraigned before the Kanifing Magistrates’ Court on 26th July 2022 for manslaughter, and the Magistrate acting under section 62(1) of the CPC transferred the matter to the High Court for want of jurisdiction. 

 “Section 62(1) states, if on the hearing of any proceedings under this Code it appears that the cause or matter is outside the limits of the jurisdiction of the Court, the Court shall, on being satisfied that it has no jurisdiction, direct the case to be transferred to the Court having jurisdiction. 

“Section 208A of the CPC further empowers a Magistrate to remand accused persons pending their trial at the High Court. This Section states: ‘where a charge has been brought against any person of an offence not triable by a Subordinate Court, the Magistrate may subject to Section 99, remand that person into custody until such time that the matter is mentioned in the High Court’. Section 99(1) does not require accused persons tried wIth offences that attract death penalty or life imprisonment to be bailed,” she said.

The Judge said the provision was well explained in the case of The State v Baboucarr Keita CRIM APPEAL NO: GCA 007/2020 (unreported) and upheld by the Supreme Court that Section 99 prohibits a court from admitting into bail a person accused of offences punishable with death or life imprisonment, she holds, the Lower Court acted within the realm of the law and remanded the applicants. 

Justice Jobarteh said the provisions of Section 208A of the CPC suggest that the remand of the applicants shall continue pending the mention of their case at the High Court which has jurisdiction to try the offence with which they were charged.

She said the applicants’ case was first mentioned at the High Court on 3rd August 2022 when the State became seized of the matter. 

Justice Jobarteh said Section 175A and B of the Criminal Procedure Code directs the Attorney General or a person authorized by him to file a bill of indictment stating the charge against the accused persons, and said the prescribed charge filed at the High Court is a bill of indictment.

“The High Court does not act on a charge sheet from the Subordinate Court. There is no charge preferred against them before the High Court. Section 62(2) of the CPC applies to transferred matters by the magistrate to the high court, and does not suggest its applicability at the High Court. The Practice Direction of 2013, especially Direction 5(4) provides that: ‘No holding charges shall be permitted’. 

“The State prosecutors may by summons directed at an accused person who is being held on charges which are still under investigation, apply to the Court to make orders to permit and facilitate further investigations pending the preferring of formal charges. By the above provision, it is evident that holding charges are not permissible. The second limb of direction 5(4) however applies. The State had applied for a time span of two weeks within which to file a bill or indictment which was granted by the Court. This fact has not been Contested and I hold the same as an established fact,” she said. 

Justice Jobarteh further stated that the court cannot also shut its eyes to the fact that the arrest, arraignment, and detention of the applicants is as a result of a charge of “manslaughter” preferred against them; saying “in fact, the case has been transferred to the High Court as a result of the nature of the charge preferred against the applicants”. 

Justice Jobarteh further ruled that the counsel for the applicants referred the court to Section 19 of the Constitution and that she has looked at the said provision in its entirety. 

“Sections 19(3)(b), (5) of the 1997 constitution: ‘(3) Any person who is arrested or detained- (b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the Laws of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours’.

“(5) If the person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further … which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable condition including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial,” she said. 

Justice Jobarteh said In their instant case, the applicants were charged and arraigned at the Magistrates’ Court on the 26th July 2022 where they were remanded pending their trial at the High Court, as earlier stated this was done within the realm of the law and justified in the circumstance. 

The Judge said on 29th July 2022 hearing notices were sent for the mention of the case at the High Court for the 3th August 2022; and said the State applied for two weeks adjournment to file a bill of indictment which was granted, and the question she asked at this stage is, whether the applicants are been remanded without trial within a reasonable time? 

Justice Jobarteh argued that trial within a reasonable time is expounded in the case of Clarke and Garrison v The Attorney General [1960-1993] GLR, page 499 which deals with the principle in determining what is reasonable time, and it held as follows: “In determining what is a ‘reasonable time’, the court is to be guided by the following factors: (i) the length of delay; (ii) the reasons given by the prosecution to justify the delay and the consequences for the delay; (iii) the responsibility of the accused for asserting his rights; and (iv) prejudice to the accused.

“The court must also have regard to the past and current problems, which affect the administration of justice in the country. What is ‘reasonable time’ cannot be prescribed, but must be determined from case to case regard being had to the circumstances of each case. Where there is delay which cannot be justified by any good reason, the absence of mala fide on the part of the prosecution will make such delay reasonable”. 

“From the date, the applicants were remanded to the day hearing notices were served for mention of the case at the High Court is three days. The Court then gave two weeks for the State to file a bill of indictment having regard to the criminal justice system of investigation and writing legal opinion,” she said. 

Justice Jobarteh further told the court that the High Court Practice Direction No:1 of 2022 particularly Direction 7(vi) states: “Where a criminal case has been transferred from the subordinate courts to the High Court for trial, it shall be called up for mention by the High Court within seven days of assignment and regularly thereafter in accordance with the rules. The court shall fix deadlines or timelines for the filing of indictment or information and other processes and expedite the hearing of the case”.

She ruled that taking into consideration the instant case and provisions of the law cited above, the applicants were not only arraigned within a reasonable time but their appearance in court is done within a reasonable time and justified in a democratic society.

Justice Jobarteh said there has not been any delay in tne criminal justice of the applicants that is not justified by any good reason.

“In fact, they have been brought to court promptly and within ‘reasonable time’ as stipulated by the Constitution. The rights of the applicants under the Constitution hold has not been infringed, but their detention is in accordance with the law,” She argued. 

Justice Jobarteh said the averments in the affidavits of the applicants relating to inhumane and degrading treatment as contained in paragraph 15 of the affidavit in support of the originating summons have been struck out for not in compliance with Section 90 of the Evidence Act. 

Justice Jobarteh further ruled that the argument of the counsel on this issue, therefore, does not stand on anything and it is accordingly disregarded. 

“I have taken note of Exhibit MM1 attached to the additional affidavit in support of the summons,” she said. 

Justice Jobarteh said the medical report of the second applicant attached is in French which has not been translated and the court cannot rely on same. 

She said similarly, a medical report from Westfield Clinic attached does not bear any name and has not been signed by any medical personal, thus does not have any nexus with the second applicant. 

“The court, therefore, minded not to rely on them. However, if the second applicant has any complaint of health issues at the Mile 2 prisons, the Director General of the State central prisons is directed to ensure that the second applicant is taken to the hospital for medical attention,” Justice Jobarteh said. 

Justice Jobarteh concluded on 11th August 2022 that in light of the foregoing, she holds that the application of the applicants at this stage lacks merit and their bail application is accordingly refused. 

The ex-wife of remanded Bob Keita Sainabou Mbye, Cherno Mbye, and Kibili Dambelly are charged with manslaughter contrary to section 186 of Criminal Code Cap: 10.01 Vol.III, Laws of the Gambia 2009.

The particulars of the offence stated that Sainabou Mbye, Cherno Mbye, and Kibili Dambelly on or about the 3rd day of July 2022, at Kanifing and diverse places in the Republic of the Gambia, by unlawful act or omission, amounting to culpable negligence, left one Muhammad Mbye, a two-year-old boy resident of Brusubi inside a car which caused his death, thereby committed an offence.

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