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Prosecution Says Detention Of Sainabou Mbye, 2 Others Is Legal

Sainabou Mbye, 2 Others at the High Court in Banjul

The State Counsel Muhammad M. B Sowe while responding to the defence counsel’s bail application said there are absolutely no violations of the applicant’s rights in terms of section 24, and section 19 of the 1997 Constitution.

He said the the detention of Sainabou Mbye, Cherno Mbye, and Kibili Dambelly is based on a court order, and that the order has not been set aside in terms of the provision of section 19 sub 4 of the Constitution.

Counsel Sowe said the applicants (Sainabou Mbye, and 2 others) did not point to any specific provision which says that the accused persons can be remanded based on a Court order.

“The applicants (Sainabou Mbye, and 2 others) are charged with manslaughter and in their submission, they admitted that they are charged with manslaughter. So why are they saying that there is no charge against them? You must be truthful when seeking for the court’s discretion in terms of the facts you are providing for the court. Interestingly these applicants have not indicated that or have not shown at least to be truthful in their own case,” M.B Sowe said.

Counsel Sowe told the court that the death of baby Muhammad is the circumstances of their (Sainabou Mbye, and 2 others) arrest which they have indicated in their affidavit in opposition.

“But they didn’t say that in their affidavit in support. So these applicants did not deserve the Court’s discretion, because they are not being truthful to the Court in terms of the facts,” he said.

The counsel said the presiding Judge should not entertain any application for bail or release of the applicants because there is a pending charge of manslaughter against them.

He said the Bob Keita Vs the State case which the applicants said is distinguished from their case is set aside by the Supreme Court of the Gambia, and that at least the applicants should be factual about that to the court.

“In this case, by their own admission, the applicants themselves were remanded by the Magistrates Court. So it is very surprising that they are turning around. You cannot indicate in your affidavit that you were remanded, in your submission, you are saying there is no remand, the detention is arbitrary. That claim in the first place cannot even seek the discretion of this court, if they are not being honest to you with the facts.

“As far as this case is concerned, the nature of the case is such that it is a transferred matter. So to say that the charge at the time has expired, the applicant did give us any laws which say that when you transfer a matter, the charges expire. On the other hands, my learned senior submitted that the appellants are charged with manslaughter. So it’s not even clear from their own case what they want. It’s not clear whether they are being charged, or they are being properly remanded in their own documents,” Counsel Sowe told the court.

He further said it is their submission that there is nothing illegal about the applicant’s detention and that they were remanded on court order, and that order has not been appealed against, to set aside the ruling of the Magistrate that the detention of the applicants is illegal.

The State Counsel said the applicants should provide the court with the law on the legality and illegality of their detention; adding that as far as the State is concerned, the court has the jurisdiction and has the power to uphold the remand of the applicants.

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.

The bail application filed by the defence on behalf of the accused is set for 

ruling, later today.

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