Magistrate O. Cham of the Brikama Magistrates’ Court yesterday ruled that the Caliph General of Darsilameh Shangajor Muhideen Hydara and the Village Alkalo, Buyeh Touray, have a case to answer.
When the case was called, Chief Inspector Camara said he had filed his reply and had served the court and the counsel.
Defence counsel LK Mboge said he was just served with the prosecution’s reply, and wished to reply briefly on points of law.
He said the evidence before the court never disclosed that the message was delivered to the two accused persons, contrary to the prosecution’s reply.
He added that the statement before the court stated that the message was delivered to the 2nd accused and the Imam, and not the 1st accused and that is on the records before the court.
The briefs filed by the defence counsel on the no-case-to-answer submission stated that the trial of the accused persons is based on two counts of conspiracy and disobedience to lawful order.
It stated that the prosecution called four witnesses to prove its case and, at the close of their case, defence opted for a no-case-to-answer submission under section 166 of the Criminal Procedure Code.
It further stated that the submission of the defence that there is no evidence to support the charge, in the first instance, and the evidence of the prosecution has been so manifestly discredited in cross-examination, that it could not be relied on by the court to convict the accused.
The brief stated that there is no evidence of conspiracy at all, in this case, and that none of the four prosecution witnesses has said anything about the accused persons conspiring to commit a felony.
It stated that the court could not speculate or infer from the circumstances, since the court could only act on direct evidence and not circumstantial evidence in this case.
It also stated that there is no circumstantial evidence for the court to act upon.
It added that the particulars, in count one, did not specify the nature of the felony the accused alleged to have conspired to commit; that, therefore, left the court in doubt as to the nature of the offence alleged against them.
In count two, which is disobedience to lawful order, the defence brief stated that the first question to ask, which begs for an answer in the court, is whether the President could make lawful orders, before even looking at the evidence.
It stated that the phrase “lawful order” is derived from law, and it means any act or omission authorised by law made by the National Assembly.
It stated that the 1997 constitution of The Gambia under section 25(1)(c) allows freedom of religion, and that the constitution is the supreme law of the land and any law which conflicts with the said constitution is null and void, and of no legal effect. Therefore, defence counsel submitted that count two is unconstitutional.
It stated that it is clear from the constitution that the President could not make lawful orders, but executive orders.
The defence counsel, therefore, urged the court to acquit and discharge the accused persons.
In reply, Chief Inspector Camara stated that a no-case-to-answer submission could not be validly made, because there had been evidence to prove an essential element to the offence charged.
He said the evidence of all the three prosecution witnesses corroborated, as they all mentioned that the message was delivered to the two accused persons.
He said that in count two, the order of the President was not in law, but there is a policy that whenever he makes a pronouncement that must be obeyed by all citizens of The Gambia.
He said the President has powers to give orders directly or indirectly, and should be obeyed.
He, therefore, urged the court to call on the accused persons to enter their defence.
“I have gone through the evidence of the prosecution witnesses and the addresses of both the counsel and the prosecution, and the reply on points of law by the counsel,” said the magistrate.
He was also mindful of the principles of a no-case submission.
“I have also referred myself to section 166 of the Criminal Procedure Code, which is on a no-case submission. I have, therefore, considered that the accused persons have a case-to-answer, and I, therefore, urge the defence to open its case,” he declared.
The hearing was adjourned to 5 February 2015, for defence.
Source: The Point
This is getting ridiculous. Let the old man go home to his family.
What!! Is he serious???
The prosecutor said that there is a policy to the effect that whenever the president make a pronouncement, it suppose to be obeyed by all citizens. I was wondering where on earth did he get that from or have I completely lost my Gambia to some odd characters?? We suppose to be a democratic secular state in which people are endowed with inalienable rights for God Sake.
Disturbing! Really disturbing!!
let the court do its job no one should direct the law.
No one is directing the court at least over here but the court must not labour to offend public conscience and I hope that will be the case in this matter.
The prosecution is making very disturbing pronouncements in relation to the power of the president, and I hope the court will consider those views as pernicious perversity. The inalienable rights of the citizenry cannot and must not be edged out.
Thanks
History is for posterity record of events, & accountability to the public as to whether one strived in one’s life, to serve justice & fairness, in favour of God, humanity & harmony for all, & or one favoured & or sided with lies, oppression & the MURDEROUS kanilai devilish tyrant…. Injustices & disservice to the Gambian people & friends will ALL be accounted for in post dictatorship which is just here now… Every citizen & foreigner alive & or dead, will account for one’s aid-abetting of tyranny, lies & falsehood of a fellow mare mortal human being but a kanilai DEVIL incarnate, against the innocent public & God…? From time immemorial, Gambians were & still are praying on separate days & times; we ALL know about this separate prayer observation times, days & or periods…. Idol worshipping which kanilai DEVIL yaya jammeh is all about is entirely different from Islam…. There is NO doubt that both the devil & its accomplices in crimes committed against innocent Gambians & friends WILL be accounted for; here & or in hereafter…. The mercenary judges & all other collaborators MUST all take note. History is recording….
This is an interesting scenario where by the president orders and the citizenry obeys. Nothing wrong with that. That is unless what the president orders contravenes the law of the land.
No man is above the law…of man or god.
In a democratic society all are equally challenged and all are equally accountable.
One would have thought that the president has access to legal advice, that can guide him ?
Whereas a citizen…does not without great expense.
Therefore an imbalance occurs.
The better news is that in recent times, Gambian courts have shown a willingness to aquit… these contentious subjects.
One must therefore conclude that some of these prosecutions should have been dropped at the pre-court stage.
I agree with the president when he proclaims time and time again that the court process…is so slow and mired with stupid cases brought by the prosecutors/police.
Its a waste of valuable court time and resources.
Conclusion:
The president should lead by example.
“This is an interesting scenario where by the president orders and the citizenry obeys. Nothing wrong with that. That is unless what the president orders contravenes the law of the land.” – Scales
This is exactly the problem. The order purportedly from the president contravenes citizens’ right to freedom of religion as enshrined in law.
Some people think Gambian people are living in a medivial Monarchy ruled according to the whims and caprices of the Monarch.
Thanks