| Senior Police Officer Testifies in Femi Peters’ Case Defence Raises Constitutional Issues By Fabakary B. Ceesay The trial of Mr. Femi Peters, the campaign manager of the opposition United Democratic Party (UDP) who is standing trial on two criminal charges of “control of procession and control of use of loud speaker,” on Tuesday 17th November, commenced at the Kanifing Magistrates’ Court before Principal Magistrate Joseph Ikpala of the said court, with the testimony of the first prosecution witness. The defence also raised a constitutional issue and indicated their resolve to go to the Supreme Court for it to address the issue. When the case was called, the court clerk asked Mr Peters what language he speaks. Mr. Peters said he speaks Creole but is comfortable with English. The charges were read out to him and he pleaded not guilty. The first prosecution witness, deputy police commissioner commanding Kanifing Division, Mr. Ebrima Manneh, told the court that on 24th October 2009, between 5-6 pm, while preparing to deploy his men on route line as the head of state was about to travel on that day, he received information that the UDP was holding a political rally at the Ebony junction at Serrekunda Central. He said he called his boss, police commissioner Momodou Sowe about the information he received pertaining to UDP and as such was instructed to go to the said rally to enquire if they had a permit to hold the really. He said he mobilized Superintendent Sambou Fatty, Officer Commanding Serrekunda Police Station and Inspector Kebba Camara, the Station officer of the said station. Commissioner Manneh stated that upon arrival at the meeting venue, they found out that the procession was already taking place. He said they went straight to the podium and met one Kebba Fatty, a retired police officer, and he explained the purpose of their visit to him. He indicated that ex-police officer Fatty directed them to Femi Peters. At this point magistrate Ikpala raised his head and asked who Mr. Peters is? Commissioner Manneh said “the accused person”. Magistrate Ikpala said, “here you call him an accused person.” Manneh said when they asked the accused person whether they have a permit to hold the rally, he told him he is not in a position to give him the answer. He said Mr. Peters told him, that the party leader is Mr. Ousainou Darboe and he is not yet at the meeting. Commissioner Manneh stated that while he was exchanging words with the accused persons, some youths stood up and started to scream and shout at them, asking what they were doing there. He said he responded to the youths that as police officers they have a right to go there and that their going there was not meant to cause trouble, but to find out if they had a permit to hold the rally. He added that the youths continued to shout at them and he ordered his men to retreat to the station. He said he called his boss, Commissioner Sowe and informed him of the response from the accused person and the behaviour of the youths towards them. He said Sowe ordered him to go back to the meeting venue and wait until he (Sowe) came to the venue. He told the court that the speakers at the meeting were using a public address system while some were drumming and dancing. He stated that when Commissioner Sowe came he told them to wait for the arrival of the police commissioner of operations, Omar Jawo. He said he directed Jawo to where the accused person was seated and Jawo went over to him and asked him about their permit to hold the rally and that the accused told him that he could only show him their permit after the rally. He said during that conversation with the accused person, the same youths got up again and shouted and abused them. Manneh said, “I can hear some saying, with or without permit, we will hold rallies. We are all citizens of this country”. He asserted that Commissioner Jawo advised them to move out of the crowd, but they should stay behind the rally. He said they remained on the ground waiting for the arrival of the Police Intervention Unit (PIU). He added that the PIU personnel arrived a bit late when the crowd at the rally had already dispersed. Commissioner Manneh indicated that up to date he is not aware of any permit issued to the accused person and he did not show the police any permit. He added that on Monday 26th October he was informed that the accused has applied for the permit but it was not issued to him. He noted that the accused is the campaign manager of the UDP. He stated that on Monday 26th October, he understood that the accused was arrested and taken to the police headquarters in Banjul. After the cross examination of commissioner Manneh, defence counsel Ousainou Darboe, made an application to refer the matter to the Supreme Court about the constitutionality of the case. Darboe added that whenever the constitutional provisions raise any thing in a case, the proceedings should be stopped. Darboe argued that it is the view of the accused person that the Public Order Act particularly section 5 thereof as amended by the public Order Act of 2009, is inconsistent with section 25 (1) (d) of the 1997 Constitution of the Gambia. He cited section 6 of the Public Order Act and argued that that section is inconsistent with section 25 (1) (d) of the Constitution. Darboe told the Court that his application is made under 127 of the constitution, arguing that all laws that are not in conformity to the Constitution should be declared null and void and shall not be enforceable. He cited section 4 of the Constitution which states that the supremacy of the constitution is in no uncertain terms limited. He argued that sections 5 and 6 of the Public Order Act are inconsistent with the constitutional provisions that allow the holding of public meetings and the use of public address system, adding that is an abrogation of the rights of people. Darboe said, “Any law that has effect of imposing an obligation to a person to seek prior permission for the exercise of his or her rights is inconsistent with the constitution. It is a law that is made in excess of the powers of the National Assembly”. He cited section 127 (1) (a) of the Constitution. He said the matter should be referred to the Supreme Court. The prosecutor, Inspector Kebba Fadera argued that Darboe’s submission should be overruled by the court. Fadera argued that the issue before the court is not a constitutional matter or an issue of fundamental rights. He added that the issue before the court is a criminal offence charge which the court has jurisdiction to determine. He argued that the court has no power to stay the proceedings at this stage when the case is going on smoothly. He cited section 133 of the constitution to back his claims. At this point, Magistrate Ikpala interrupted him and asked whether he was reading directly from the constitution or from another note. Magistrate Ikpala ordered him to read directly from the constitution and not from any note. Fadera asserted that it is only the High Court that can order for a stay of proceedings and not the subordinate court. He told the court that the defence has raised the same issue at the Banjul Magistrates’ Court on 6th November, and it was overruled by the Court. Fadera said, “If it is not right to apply for a permit, then why should the accused person apply for the permit. If it is not a right for political parties to apply for permit, all parties will be having meetings at the same time, which can bring conflicts”. He urged the court not to grant the application by Darboe, and allow the case to proceed smoothly as it started. Darboe stood up again and argued that the issue before the Banjul Magistrates’ Court was whether the accused person was denied his constitutional rights. He said section 133 of the constitution is misunderstood by the prosecutor. The case is adjourned to 23 November for ruling on the arguments. Mr. Femi Peters, was arrested on 25th October, at his house in Bakau and later charged with two counts of criminal offences namely, “control of procession,” contrary to section 5 (5) (a) of the Public Order Act and “Control of use of Loud Speakers,” contrary to section 6 (a) of t he Public Order Act. He was first arraigned at the Banjul Magistrates Court, but was transferred to Kanifing after the Court ruled that it does not have jurisdiction to hear the matter. Courtesy of foroyaa online |
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