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Farang
As in most jurisdictions, Gambia's criminal justice system particularly centres around the Executive, and Judicial, arms of government. Even though the Legislature enacts the laws in consultation/collaboration with the Executive, the implementation of the criminal justice system is mainly the preserve of the Executive and the Judicial arms.
Although multiple agencies, e.g., the police, NDEA, NIA, may be involved in investigating alleged criminal activity, the charging and prosecuting decisions are usually made by the police. However, in more legally involved/complex cases, the prosecuting arm of the AG's Chambers under the leadership of the Director of Public Prosecutions may take over. After the testing of evidence under cross examination, it is the function of the Judicial Officer to decide the case.
In a jurisdiction where national power is concentrated in the Executive, fairness becomes an issue in legal disputes, be they civil or criminal. And this is particularly significant in the case of non-Gambian Magistrstes/Judges on very sort contracts the Executive must renew. In legal disputes, process is quite significant but the one-sided nature of national power can significantly compromise process, either at the investigatory, or the prosecuting levels.
Although the Constitution deals with the broad architecture of government, the bulk of guidance in the criminal justice system is to be found particularly in Volumes 2 &3 of the very recently published (2011) Laws of the Gambia, 2009. Volume 2 concentrates on different facets of the Administration of Justice, and Volume 3 partly covers Criminal Law and Procedure. Incidentally, Treason is the only offence substantively defined in the Constitution.
Yes, we need a criminal justice system overhaul, but the Professor is unlikely to accept the transparency that comes with an independent system. He controls the police, the Director of Public Prosecutions, and its supervising agency of the AG's Chambers.
We must first change the Government to overhaul our criminal justice system.
From: [log in to unmask] <[log in to unmask]>
Subject: Re: [G_L] Treason, and Concealment of Treason
To: [log in to unmask]
Date: Sunday, 26 June, 2011, 0:47
Demba,
Thanks for your pertinent Questions and your apt analysis, my Question to Our Honorable Brother LJD, is ' Do you think in your professional Opinion the Criminal Justice System in The Gambian Constitution NEEDS to be Overhauled?
Farang?
-----Original Message-----
From: Demba Baldeh < [log in to unmask]>
To: GAMBIA-L < [log in to unmask]>
Sent: Sat, Jun 25, 2011 1:18 pm
Subject: Re: [G_L] Treason, and Concealment of Treason
LJD,
Thanks for citing the constitutional provision under which Abbas Manneh was convicted, and Dr. Janneh and co are being prosecuted under.
I think this raises pertinent questions on the constitutionality of these cases and how the Jammeh regime is frivolously using loop holes in the constitution to consistently deny Gambians the right to fair trial and due process of the law!
So I wanted to get your take as one of the best legal minds we have to possibly explain to the readership that those of us without legal background struggle with constantly!
Do you reasonably believe that the Gambian judiciary fairly and ethically apply the laws in our constitution to prosecute and convict citizens?
Do you also agree that there is judicial activism in Gambia where outcome of cases especially ones involving the state are predictable and obvious?
What
are the ethical and moral standards in universal legal practice for defense counsels to agree to represent the accuse pro bono or at a fee when they - the legal counsel knows that the outcome of the case is a predictable conviction?
In fact knowing that judges appointed by the state are activists judges and will no doubt rule in favor of the state in almost all criminal cases, why would defense counsels agree to appear before such judges and courts?
Does this constant appearance of Gambian lawyers before the courts in fact not legitimize the system that openly convict citizens using flimsy provisions of the law?
Finally sorry for the long questions, do you believe the Gambia bar association in fact enables this regime to constantly abuse citizen rights to due process of the law by denial them fair trial, bail, and reasonable sentencing where convicted? Why would the legal body continue to be used by the courts without anyone taking
a stand??
Sorry LJD, I just wanted to pick your brain on some of these issues that I think may be contributing to constance abuse of our judiciary system!
Your time and educating input is greatly appreciated!
Thanks
Demba
Sent via BlackBerry from T-Mobile
Date: Sat, 25 Jun 2011 10:52:06 +0100
Subject: [G_L] Treason, and Concealment of Treason
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Folks
Applying the law of treason to the facts as advanced by the State, is it legally defensible to accuse Dr Amadou Scattred Janneh of this particular offence?
Can the State discharge its burden of proving the allegation beyond reasonable doubt?
Do remember that the words of the statute are ordinary every day words and should be construed accordingly.
You may wish to consider the possibility of a conflict between the law of treason, and the fundamental freedoms under Chapter IV of the 1997 Constitution where expression appears to be the core factual element of the allegation. If indeed there is a conflict, how should an adjudicating court, in this case the High Court, resolve that in Dr Janneh's matter?
LJDarbo
Section 35 of the Gambia’s Criminal Code
Treason
(1) A person who:-
(a) Prepares or endeavours to overthrow the Government by unlawful means
(b) Prepares or endeavours to procure by force any alteration of the law or the policies of the Government
(c) Prepares or endeavours to carry out by force an enterprise which usurps the executive power of the State in any manner of both a public and a general nature
(d) Incites or assists or procures a person to invade The Gambia with an armed force or unlawfully to subject any part of The Gambia to attack by land, sea or air or assists in the preparation of any such invasion or attack
(e) In the time of war and with intent to give assistance to the enemy, does any act which is likely to give such assistance
(f) Causes or attempts to cause the death of a member of the Government or other citizen of The Gambia with a view to securing the overthrow of the Government or with intent to coerce any other citizen of The Gambia into opposing the Government or otherwise into withdrawing or withholding his or her support from the Government, or
(g) Conspires with any other person or persons to effect any of the purposes specified in paragraphs (a) to (f)of this subsection,
commits the offence of treason and, subject to subsection (2) of this section, is liable on conviction to be sentenced to death or to imprisonment for life
(2) Where a person commits an offence under paragraph (f) of subsection (1) of this section, he or she shall, on conviction, be sentenced to death
Section 36 of the Gambia’s Criminal Code
Concealment of Treason
A person who knowing that any other person intends to commit treason , does not-
(a) Give information thereof within ll reasonable despatch to a Minister, a Magistrate, a police officer or a member of the Armed Forces, or
(b) Use other reasonable endeavour to prevent the commission of the offence,
commits an offence and is liable on conviction to imprisonment for life
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