DARBOE AND OTHERS APPEAR IN COURT
On Thursday, 13 July 2000, the leader of the UDP and 24 others were
arraigned before Justice Ihekire at the High Court in Banjul to answer to
charges connected with the alleged murder of Alieu Njie.
When the charge sheet was read to them, each of the accused, commencing with
Mr Darboe, pleaded not guilty. After the plea, the question of the nature of
the trial came to the fore. The question was whether the trial should
proceed by a judge alone or by jury.
Apparently, just as in the case of Lieutenant Sanneh, the defence counsel
wanted to know what a trial by jury would entail. They were very concerned
with the option of trial by jury, but wanted to know how the jury would be
constitued and whether the accused persons would have a right to object to
the composition.
The reader may find this to be rather strange as such matters should have
already been prescribed by law. The fact of the matter is that that is not
the case. This is why it is necessary for FOROYAA to throw light on this
issue.
The question now arises: What is meant by trial by jury?
TRIAL BY JURY
In a trial by a judge the prosecution adduces facts and cites relevant laws
to convince the judge, beyond reasonable doubt, that the accused person is
guilty of the offence. The defence also adduces facts and cites laws to
refute the allegations of the prosecution in order to prove the innocence of
the accused. In a trial by a judge, he or she considers the facts and law to
determine the case and subsequently pronounces innocence or guilt.
On the other hand, trial by jury means that the judge will simply be
responsible for guiding the jury on question of law while leaving the jury
to decide on the facts of the case. Ultimately, it is the jury that decides
whether the accused is innocent or guilty.
One may now ask: Why is it that there is yet to be law to determine how
trial by jury would be conducted? The answer to this question is simple. The
Criminal Procedure Code did contain a part on trial by jury. However, this
was repealed by Act No. 15 of 1982 to prevent trial by jury after the coup d
'etat of 1981. This is why trial by jury was effaced from Gambia's law books
until the 1997 Constitution came into being.
Section 24, subsection (9) of the Constitution states that "A person charged
with a criminal offence in the High Court shall have the right to elect to
be tried by a jury."
Hence, it is fundamental right now for an accused person to elect to be
tried by a jury. What is, however, not clear is the nature and composition
of the jury since what existed in the past had been repealed in 1982.
Needless to say, if there is to be trial by jury, a new law would have to
come into being in order to explain how a jury is to be constituted. For
example, under Section 228 of the Criminal Procedure Code (which is now
repealed), the accused person or his or her advocate, as well as the
prosecutor, had right to challenge the membership of any person to a jury on
the following grounds:
(a) presumed or actual partiality of the assessor (juror);
(b) personal cause such as infancy, old age, deafness, blindness or
infirmity of the assessor (juror);
(c) the character of the assessor (juror) in that he has been convicted of
some offence which, in the opinion of the Court, renders him unfit to serve
as an assessor (juror);
(d) the inability of the assessor to understand the English language.
Section 232 of the Code (repealed) stated: "(1) The qualifications of jurors
shall be the same as those of assessors, and the lists of assessors shall be
used for the selection of jurors."
It was, therefore, no surprise that the defence counsel could not properly
guide the accused persons to exercise their option for trial by a judge or
jury. As Mr Darboe indicated, he could not know what type of persons would
comprise the jury. The defence counsel, Mr Ousman Sillah, did also express
concern as to whether the accused persons will have a right to object to its
composition.
Since the law which existed in the past has been repealed since 1982, the
National Assembly would have to pass a Bill on the subject before a law will
come into being.
The Solicitor General, Mr Raymond Sock, therefore proposed an adjournment up
till 3 August 2000 so as to examine the situation. The case is adjourned
till 3 August 2000.
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