IN THE SUPERIOR COURTS OF THE GAMBIA
IN THE HIGH COURT OF THE GAMBIA
HOLDEN AT BANJUL
CRIM. CASE NO: HC/365/19/CR/067/AO
BETWEEN:
THE STATE…………………………………………………………………..COMPLAINANT
AND
YANKUBA TOURAY………………………………………………….ACCUSED PERSON
CASE CALLED: on the 15TH JULY 2019
BEFORE HIS LORDSHIP HON. JUSTICE EBRIMA JAITEH
ACCUSED PESON: – present
APPEARANCES:
- Attorney General with A.M. Yusuf (PSC) and M. Koita for State – Present
- Sissohor for the Accused person – present
RULING
The Accused person is charged with one count of murder contrary to section 187 of the Criminal Code, Cap 10, Volume 3, laws of The Gambia. The particulars of offence alleged is that Yankuba Touray sometime in the month of June 1995 at Kololi in the West Coast Region of The Gambia within the jurisdiction of this Honourable Court and with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with a pestle-like object and other dangerous weapons thereby committing an offence.
The accused was arraigned before this Honourable Court on the 8th day of July 2019 and he refused to take his plea and enters a plea of constitutional immunity. This Honourable Court subsequently enters a plea of not guilty for the accused person. Based on the accused person’s refusal to take his plea and thus claiming constitutional immunity prompted the Hon. Attorney General to address this Court on a number of issues.
It is the submission of the Hon. Attorney General that the accused person’s refusal to take his plea and claiming constitutional immunity is a challenge to the jurisdiction of the court to hear and determine this charge of murder.
The Hon. Attorney General argued that the accused person’s claim of constitutional immunity is ambiguous and too broad to address its specificity, as there is no provision of the constitution the accused sought to invoke.
The Hon. Attorney General further submitted that it is unknown to this Court what type or category of immunity the accused is claiming and argued that the accused cannot arrogate to himself the power to determine his immunity because immunity could only be a defence like other defences in a criminal trial.
The Hon. Attorney General submitted that if the court is minded to consider the accused claim of constitutional immunity as a challenge to the jurisdiction of the court, this Hon. Court might refer to section 127 of the constitution for referral to the Supreme Court for interpretation. In the alternative, the Hon. Attorney General submitted that if the Court is minded to proceed with the hearing of this case despite a challenge to its jurisdiction, he thus applies for an adjournment pursuant to section 226 of the Criminal Procedure Code on the grounds that the prosecution is in the process of amending the bill of indictment to add at least 10 additional counts of murder and other serious offences.
The Hon. Attorney General argues that the prosecution needs to serve on the accused all relevant information to help him prepare his defence, which is consistent to the principle of the right to fair trial. The Hon. Attorney General further argues that in order to comply with pre-trial procedures, urges this Hon. Court to adjourn this matter after vacation.
In responding to the submission of the Hon. Attorney General, learned Counsel for the Accused A. Sissohor argues that there is a charge before the court and plea has been taken and the next step is to proceed with the trial on a daily basis and he vehemently opposes an adjournment. Counsel Sissohor submitted that the propose amendment is not yet before the Court and the prosecution can file fresh indictment if they so wish.
Learned Counsel Sissohor argues that when the accused took his plea, he did not make any reference to any section of the Constitution and therefore referral of this matter to the Supreme Court pursuant to section 127 (2) of the 1997 Constitution does not arise. Learned Counsel Sissohor further argues that for any matter to be referred to the Supreme Court, there is a condition precedent to be fulfilled.
Counsel Sissohor subsequently applied for bail and referred this Hon. Court to the case of Henry Gabriel v The State (Civil Appeal No.: SC/001/2019) where a single judge of the Supreme Court of The Gambia on the 31st day of May 2019 granted bail to a convict pending appeal. Counsel Sissohor refers this Honourable Court to section 24 of the 1997 Constitution and submitted that the accused is presumed innocent until proven guilty.
In responding on points of law, the Hon. Attorney General submitted that the case cited by the Defence Counsel is misconceived and misunderstood the import of the decision of The Gambia Supreme Court in the case between: Henry Gabriel v The State. The Hon. Attorney General submitted that the case of Henry Gabriel (Supra) was a charge of manslaughter and he was convicted of manslaughter and argues that the facts are distinguishable from this case before this Court. The Hon. Attorney General urged this Hon. Court to discountenance the said authority, as it is not applicable.
I have listened very carefully to both submissions and arguments by the Hon. Attorney General and the Defence Counsel with great interest. I believe for proper determination of this matter, there are three (3) issues that fall for determination and they as follows:
- Whether this Honourable Court should refer this case to the Supreme Court of The Gambia for interpretation?
- Whether the accused person is entitled to bail under the circumstances?
- Whether this Honourable Court should adjourn this case after the summer vacation?
With regards to the first issue as to whether this Honourable Court should refer this case to the Supreme Court of The Gambia for interpretation was premised on the accused plea of constitutional immunity, which in the opinion of the Hon. Attorney is a challenge to the jurisdiction of this Court to hear and determine this case. The law that governs the referral of matters to the Supreme Court for interpretation is section 127(1) & (2) of the 1997 Constitution of The Gambia. Section 127 (1) & (2) provides that:
- The Supreme Court shall have exclusive original jurisdiction-
- For the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36 (5) (which relates to fundamental rights and freedoms)
- On any question whether any law was made in excess of the powers conferred by this Constitution or any other law upon the National Assembly or any other person or authority;
- On any question as to whether or not any person was validly elected to the office of president or was validly elected to, or vacate his or her seat in, the National Assembly; or
- On any question whether any official document should be produced, or its contents disclosed, in proceedings before a court where such production is resisted on the grounds that its production of the disclosure of its contents would be prejudicial to the security of the State or be injurious to the public interest.
- Where any question referred to in paragraphs (a), (b) or (d) of subsection (1) arises in any proceedings in any other Court, that Court shall stay its proceedings and refer the matter to the Supreme Court for its determination, and such other court shall give effect to any decision of the Supreme Court in the matter.”
From the above provision of the 1997 Constitution, this Hon. Court has a mandatory obligation to stay any proceedings and refer any question to the Supreme Court of The Gambia for determination. It must be noted that in order to invoke the original jurisdiction of the Supreme Court under section 127 of the 1997 Constitution, certain conditions must be fulfilled such as the interpretation or enforcement of certain provisions of the 1997 Constitution as contained in sub-sections (a), (b) and (d) of section 127 (1) above. The question that begs an answer is whether the conditions stipulated in section 127 (1) (a), (b) and (d) are fulfilled to warrant this Court to make referral to the Supreme Court of The Gambia for determination.
The accused is charged with murder and he pleads constitutional immunity without making reference to any section or provision of the 1997 Constitution. It is very unclear to this Honourable Court what sort of immunity the Accused person is claiming and this Court cannot speculate or conjecture as to what sort of immunity he claims and under which section or provision of the Constitution of The Gambia. I therefore ask my self which question or provision of the law would be referred to the Supreme Court for interpretation. I must emphatically state that there is no question of law or provision of the constitution placed before this Court to be referred to the Supreme Court of The Gambia.
In my view the accused person by merely stating to the Court that he claims constitutional immunity is not sufficient in law to warrant this Honourable Court to make a referral to the Supreme Court of The Gambia. I hold the strong view that if the Accused is interested in raising constitutional immunity, he must come formally before this Honourable Court or has the liberty to filed an originating suit to the Supreme Court directly for interpretation.
From a perusal of the bill of indictment, the Accused is charged with murder and this Honourable Court has jurisdiction to hear and determine murder cases. The Accused person clumsily claiming constitutional immunity without fulfilling the requirements under the law does not automatically oust this Honourable Court of its jurisdiction to hear and determine the case.
From the foregoing reasons, there is absolutely no law or provision of the Constitution placed before this Court to refer to the Supreme Court of The Gambia for interpretation and this I shall hold as a fact. Based on the facts placed before this Hon. Court, this Honourable Court shall not make a referral of this case to the Supreme Court of The Gambia for interpretation or enforcement at this material time.
With regards to the second issue is whether the accused person is entitled to bail under the circumstances is premised on the application made by Counsel for the Accused person. I will like to start by saying that the law is very clear on the point that the matters to be taken into consideration on whether or not to grant bail are: the nature of the charge, the severity of the punishment, the quality of the evidence available, likelihood of the accused jumping bail or interfering with witnesses, the criminal record of the accused if any and the likelihood of a repetition of the offence if granted bail.
This list, which is far from exhaustive has been pronounced upon in plethora of cases. See the cases of ALBERT SAMBOU V. THE STATE (UNREP MISC. APP. NO.37/02); DOKUBO ASARI V. FRN (2007) VOL 152 LRCN 116 @ 120 – 121 HELD 1. Section 99(1) of the Criminal Procedure Code (the CPC) undoubtedly gives this court the discretion to grant bail to any person other than a person accused of an offence punishable with death or imprisonment for life.
This discretion must however be exercised judicially having due regards to the facts and circumstances of the case and in accordance with any statutory criteria for granting of bail. In this particular case, the accused person is charged with murder. I have looked at the law under which the accused person is charged and that is section 187 of the Criminal Code, Cap 10, volume 3, laws of The Gambia, which is murder. Section 188 of the Criminal Code deals with the punishment for murder and its states: “A person convicted of murder shall be sentenced to death.” The punishment allowed for murder in this jurisdiction is only sentence to death. In the Gambia Criminal Jurisprudence, section 99 (1) of the Criminal Procedure Code creates a statutory regime in accordance with which a Court makes a determination as to bail. Section 99(1) of the Criminal Procedure Code states:
“When a person, other than a person accused of an offence punishable with death or imprisonment for life, appears or is brought before a court on any process or after being arrested without a warrant, and is prepared at any time or at any stage of the proceedings to give bail, the person may in the discretion of the Court be released upon his or her entering in the manner hereinafter provided into a recognizance, with or without a surety or sureties, conditioned for his appearance before the court at the time and place mentioned in the recognizance.” (Emphasis underline)
It follows from the wordings of section 99 (1) of the Criminal procedure Code that this Honourable Court may exercise it discretion in the grant of bail for offences that are not punishable with death or imprisonment for life. What this means is that this Honourable Court can only grant bail to an accused person who is charged with a criminal offence and the punishment prescribed by law is not punishable with death or imprisonment for life. In the instant case, the Accused person is charged with murder, which is punishable with death. I must state murder is a serious offence attracting a sentence of death, which is a factor to refuse bail to an alleged offender.
The question that I asked my self is that does this Honourable Court have discretion to grant bail, having regard to the offence alleged by the prosecution and the purports of section 99(1) of the Criminal procedure Code.
Counsel for the Accused person refers this Court to section 24 of the 1997 Constitution that deals with the presumption of innocence and submits that the accused shall be presumed innocent until proven guilty. I agree that section 24(3) (a) of the 1997 Constitution of The Gambia states that: “Every person who is charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty.” I also hold the strong view that the fundamental hallmark of our criminal justice system is that a person accused of committing an offence is cloaked with a presumption of innocence. On the other hand society also has a poignant interest in not only ensuring that the accused will appear for any scheduled court appearances, but also in protecting itself from criminals that present a very real danger to persons or property. However, it should be noted that the presumption of innocence is not absolute and unqualified, see the case of SHELDRAKE v DPP (2004) UKHL 43(9). Section 99(1) of the Criminal Code creates a presumption in favour of bail for offence that does not carry the punishment with death or imprisonment for life. I have read the case of Henry Gabriel v State as cited by the Defence Counsel and the said case is not applicable to the facts and circumstance of this case. In the case of Henry Gabriel (Supra), he was convicted and sentenced for manslaughter and in our present case, the accused is charged with murder. I therefore, reach the conclusion that the case of Henry Gabriel (Supra) does not apply and is hereby discountenanced. Having regards to the severity of the punishment and purport of section 99(1) of the Criminal Procedure Code and among other reasons mentioned above, the Accused person Yankuba Touray shall not be admitted to bail. The application for bail is hereby refused and accordingly dismissed.
With regards to the third issue as to whether this Honourable Court should adjourn this case after the summer vacation was a request from the prosecution. The law that governs postponement or adjournment of proceedings in the High Court of The Gambia is section 226 of the Criminal Procedure Code, Cap 11:01, Volume 3, laws of The Gambia. Section 226 of the said Criminal Procedure Code provides that:
“If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the Court considers it necessary or advisable to postpone the commencement of or to adjourn any trial, the Court may from time to time postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may by warrant remand the accused person to some prison or other place of security…”
In this jurisdiction, the power of adjournment by Court is a matter of within the discretion of the Court. From the import of section 226 of the Criminal Procedure Code, this Honourable Court has the power to grant an adjournment on the grounds that witnesses are absent or any other reasonable cause in the proceedings if the court considers it necessary or advisable to postpone the commencement of any trial.
The Hon. Attorney General in his submission submitted that the prosecution is in the process of amending the bill of indictment to add at least 10 additional counts of murder and other serious offences of high magnitude. I must state that the prosecution has the discretion to file additional charges against the accused person at any material time. It is important to note that today is the 15th day of July 2019 and there is 16 days ahead before the commencement of this year’s summer recess, which commences on the 1st day of August 2019.
This Honourable Court shall not preside over this matter in the summer recess and considering that the accused was arraigned on the 8th day of July 2019, I do not believe that an adjournment of this matter would occasion a delay in the proceedings and thus denying the accused person a fair trial within a reasonable time because this Honourable Court shall not sit over this matter during the summer recess. Considering that this is a fresh criminal cause pending before this Honourable Court, the prosecution must serve the Accused person will all relevant information they wish to rely on in this trial and I therefore hold the strong view that the accused person herein shall be accorded adequate time and facility for the preparation of his defence in this trial as provided in section 24(3)(c) of the 1997 Constitution of The Gambia. In the exercise of its discretion to grant an adjournment and considering the prevailing circumstances into account, this Court must not lose sight of its constitutional duty to give all the parties before it a fair hearing, an opportunity to present their respective cases without let or hindrance.
In balancing the discretionary power to grant an adjournment and in the interest of substantial justice in the shape of this trial and fair hearing, I shall use the discretion of this Court and have this matter adjourn to next term. The prosecution is hereby directed to line up their witnesses for an accelerated trial in this criminal cause.
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Hon. Justice Ebrima Jaiteh
Judge
15th July 2019