By Omar Bah &
Eight leaders of the banned Operation Three Years Jotna have been slammed with three counts of criminal charges, one of which attracts a life imprisonment.
Abdou Njie, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh, Fanta Mballow, Karim Touray, Yankuba Darboe and Matarr Ceesay, who appeared at the Kanifing Magistrates’ Court yesterday are charged with unlawful assembly, rioting after proclamation and demolishing structures.
The police prosecution team said the accused persons refused to peacefully disperse after expiration of the proclamation made by deputy superintendent Alagie Jallow in the name of the President.
The police said the accused persons had also destroyed the Gambia Technical Training Institute students’ waiting shed by setting it on fire and taking part in an unlawful assembly.
Magistrate P. Sarr remanded the eight accused persons at Mile 2 Central Prisons pending their arraignment before the high court.
The magistrate’s ruling came following an intense argument between the police prosecutor and the defence lawyer over whether the Kanifing court has the jurisdiction to hear the case.
Police superintendent M.D Mballow made an application for the matter to be transferred to the high court because the court lacks the jurisdiction to try count 3, which deals with rioters demolishing structures.
He relied on Legal Notice number 3 of 2009 which provided for a Special Criminal Division of the High Court to try offences such as count 3 because it attracts the sentence of life imprisonment.
Superintendent Mballow further argued that whiles count 1 and 2 that attract imprisonment of 1 and 5 years respectively can be tried by the Magistrates’ Court, count 3 which attracts life imprisonment can only be tried by the High Court.
“Our laws do not confer this court with the power to try offences that attract a life imprisonment,” Mballow argued.
However, defence lawyer Lamin Camara representing the eight accused persons said the court has the jurisdiction to try the case.
Lawyer Camara submitted that Legal Notice number 3 of 2009 is not a law but a practice directive.
“The legal notice does not oust the court’s jurisdiction to try the offences. The intent of the practice directive is contained in section 1. It provides in the interest of effective case management and expeditious disposition of cases relating to capital offences,” Camara said.
He said the legal notice did not create a court, instead it created a Special Division of a court, therefore, it cannot take away jurisdiction.
“This court has all the powers under section 5 (2) of the Criminal Procedure Code (CPC) (powers of the subordinate courts). Section 5 (2) of the CPC provides that the court can sentence any offence authorised by law,” he added.
Relying on section 29 of the Criminal Code, Lawyer Camara said the court also has the jurisdiction to grant the accused persons bail on all the 3 counts even though count 3 attracts life imprisonment. He said the discretion of the court to hand down judgment prescribed by law is not fettered.
“Sentence to life imprisonment is not mandatory under our laws, unlike treason which attracts death. The court can reduce sentences including life imprisonment sentences,” he said.
Delivering her ruling in a heavily guarded court, Magistrate Sarr said the Legal Notice is a law and it has ousted the jurisdiction of the court to try the case.
She said the Legal Notice is a subsidiary legislation and therefore section 7 of the Constitution provides that subsidiary legislation forms part of the laws of the Gambia. She said she lacks the jurisdiction to entertain the matter.
She transferred the matter to the high court relying on section 61 of the Criminal Code. She also relied on section 208A to remand the accused persons at Mile 2.
Hundreds of Operation Three Years Jotna members clashed with police at Sting Corner as they protested against President Barrow’s rule. At least 125 people were arrested, most of whom have been released.
Immediately after the ruling, the accused persons were heard shouting “we will liberate Gambians from Adama Barrow.”
Sympathisers of the Three Years Jotna were also seen in their numbers outside of the court premises chanting “Three Years Jotna. Barrow is more dictatorial than Yahya Jammeh. He has betrayed Gambians.” The supporters who stormed the court premises also called for the immediate release of the 8 detainees.