Delivering his ruling after going through the submission of both the prosecution and defence, the trial judge, Justice Ebrima Jaiteh ruled that he has listened very carefully to the submission of both parties in this case with great interest, further stating that it is also important to emphasized that subpoena is an order of court and any person summoned to give or produce documents, is bound to attend the court.
According to the trial judge, in this instant case, the prosecutor duly informed the court that there was a representative in court from the TRRC in compliance with the order of the court.
However, the trial judge explained that for the fact that the prosecutor has informed the court there was a representative from the TRRC, the defence notwithstanding proceeded to apply and urged the court to issue a bench warrant for the arrest of the executive secretary of the TRRC to appear before the court to show cause as to why he should not be cited for contempt of court order.
“I believe for proper determination of this application, there is one issue to be determined and that is:
“Whether the ‘summons to a witness to produce documents at trial’ issued on the 25th October 2019 to the Executive Secretary of the TRRC was brought under the appropriate Criminal Procedure Form in the Third Schedule of the Courts Act – Subsidiary Legislation, Cap 6:01, Volume 2, laws of The Gambia?”
The cardinal principle of law is that there are two (2) varieties of subpoenas. There is a subpoena, which requires a witness to appear and bring specific documents or records and there is which compels a witness to attend and give evidence and produce documents,”
According to Justice Jaiteh, the Executive Secretary of the TRRC is not a witness in this criminal trial and is not expected to testify as a witness.
Justice Jaiteh therefore upheld that the criminal judicial form used by defence counsel was a wrong form and was misleading hence the Executive Secretary is commanded to attend court and testify as a witness in this cause.
The trial judge consequently dismissed the application, before adjourning the case to Monday 18 November for continuation of cross-examination of prosecution witness, Ensa Mendy.
Mr Touray who looks strong and determined since his arrest and detention in June is alleged to have participated in the murder of Ousman “Koro” Ceesay, the former finance minister of the former AFPRC junta regime. Touray however failed to take his plea when he appeared before the court citing constitutional immunity and since then he is being detained at the state central prison in Mile 2.