As Gov't Justifies Darboe's Arrest And Detention Defense Counsels React to
the State

The Independent (Banjul)
NEWS
November 29, 2002
Posted to the web November 30, 2002

By Pk Jarju
Banjul

A team of defense counsels representing the UDP leadership has strongly
reacted to the Attorney General's Chamber's justification for the arrest
and continuous detention of Ousainou Darboe and three others by the state.

The AG Chambers in a press release stated that the arrest and continuous
detention of members of the UDP leadership was in accordance with the
result of an amendment to Section 99 of the Criminal Procedure Code 2002,
which states that all persons charged with murder and other similar
offences for which the penalty is life imprisonment or death are not
entitled to be granted bail unless where the trial has been unreasonably
delayed.

Reacting to this, the team of defense counsels expressed outmost surprise
to the arrest and detention by the state especially when they were being
connected with the murder case of June 17, 2000 in Basse during a skirmish
between APRC and UDP supporters.

According to the defense, the attempt to justify the arrests on the basis
of the CPC Amendment Act 2002 is unfortunate because the act is
inconsistent with or in contravention of section 19(4) of the nation's
constitution, which states that 'where any person is brought before a court
upon suspicion of him or her having committed or being about to commit an
offence, he or she shall not thereafter be further held in custody in
connection with . that offence save upon the order of a court'.

They further argued that judicial matters are squarely in the hands of the
courts and not the National Assembly as enshrined in section 120 (2) of the
constitution. As a result of this they argued that matters of criminal
liability and punishment are judicial matters.

The defense stated that in the appeal by the state against the bail granted
to the accused persons by Justice Kabalata on June 21, 2000, the Court of
Appeal expressed concern that the liberty of Mr. Darboe and his co-accused
would be interfered with if the court were to rule in favour of the state
in the appeal.

The defense added that during the hearing of the case, the learned Director
of Public Prosecution DPP Chief Akomaye Agim gave the undertaking that the
liberty of the accused would not be interfered with, which was recorded by
The Gambia Court of Appeal in their judgment. The Defense quoted Court of
Appeal records as declaring 'that the learned DPP has in keeping with his
status as an officer of the court assured us that the respondents would not
suffer any negative consequences as a result of this judgment. So be it.'

In view of recent developments regarding the accused, the Defense stated
that the learned DPP a member of a honourable profession must be
embarrassed by the arrests and detention following the judgment, which is
unfair to him. They refused to accept that he has any hand in the arrests.

'Maybe those who ordered these arrests are not aware of the judgment of the
court of appeal' the Defense stated.

According to the defense since the Kabalata ruling granting Mr. Darboe and
his alleged conspirators bail, the murder case has been listed and called
in the High Court over ten times with them always presenting themselves
during all phases of the trial. They added that the denial of bail when it
should be granted amounts to imposing a punishment on the person or persons
refused bail.

'The only consideration for bail is whether the accused will present him or
herself for his or her trial' the Defense indicated.

They added all other factors are offshoots of this consideration and that
the legal presumption entrenched in the constitution is 'that a person is
presumed innocent until proven guilty after a due process of the law'.

The Defense lamented that even if the CPC Amendment Act of 2002 was not
offensive to the fundamental rights provisions of the constitution,
applying it to a two year old murder case would be giving it retroactive
effect and thereby prejudicing or depriving the persons accused of rights
vested in them, namely that they could be granted bail by the courts. This
they added would also offend against section 100(c) of the constitution.

Meanwhile a suit filed at the High Court by defense lawyers seeking the
unconditional release of the UDP four was Tuesday not entertained by
Justice Abdukarim Savage on the grounds that the substantive case is before
another Judge (Justice Tahir). He added that if he proceeded with the case
and make a ruling, it would have effect on the substantive case before
Tahir. Justice Savage noted that as the judge assigned to hear matters
touching on the liberty of people for the week, he could only be at liberty
to hear the matter if Tahir is beyond the jurisdiction of the country.

'Handling this matter now would set a dangerous precedence in the country's
judicial history' he lamentably observed.

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