Mr Sabally is being tried by state prosecutors on eight counts including economic crime, abuse of office and false information. He denied the charges. He was arrested on 7 July this year and presented before the court in August. He has since spent four months, ten days in detention.
In moving his bail application on behalf of his client, lawyer Antouman Gaye drew the attention of the court to the nature of the charge sheet and the offences which his client were charged with and submitted that they were all bailable offences.
He submitted that his motion of notice for the bail of his client was dated 16 October 2014 in which his client was seeking for release on bail and his affidavit was supported by 33 paragraphs sworn to by Jainaba–Teeda Sarr, the wife of the applicant.
“I submit that all the offences are bailable offences and the applicant has good defence against all the charges. It is our humble submission that this application is brought under the provision of the Constitution and the Criminal Procedure Code… Furthermore, it is our submission that there is constitutional provision of bail in favour of the applicant,” Antouman Gaye said.
He contended that since the arrest of his client in July, no charges were preferred against him until August when he was brought before the court which initially remanded him in custody at the National Intelligence Agency offices.
“In criminal matters, when a court adjourns a case, if the accused is on bail, the procedure stipulated that the case can be adjourned within two weeks but if the accused is in detention the case can be adjourned within seven days, see section 162 of the CPC which is applicable at the lower court and section 226 which is also applicable at the high court,” he expounded.
Addressing the court on principles of granting bail, Mr Gaye asked the court to put the following into consideration: whether if granted bail, the applicant will abscond or commit other crimes; whether he would interfere with the witnesses; or whether he would interfere with the course of justice. He said Momodou Sabally is a citizen of The Gambia and has his roots in this country.
He argued that the continuous detention of Mr Sabally would erode the constitutional provision of his presumption of innocence and urged the court to exercise its discretion “judicially and judiciously” and grant bail to his client on reasonable conditions.
Responding, the director of public prosecution vehemently opposed the application.
Mr Barkun who filed four paragraphs of affidavit in support of his motion contended that when an application is made for the court to exercise its discretion, facts must be available before the court from both sides in order for the court to exercise its discretion judiciously and judicially.
He said the affidavit in support of the applicant, especially from paragraphs 1 to 26, were not tangible reasons for him to be granted bail.
“The first thing the court needs to take into consideration is the nature of the charge. The applicant is charged with eight counts which include two counts of economic crime, two counts of abuse of office and giving false information among others. The first two counts carry a minimum sentence of three years and maximum of ten years imprisonment. The prosecution has strong evidence against the applicant which are very strong and by considering the nature of the offence, there is likelihood that if the applicant is granted bail, he may abscond. Furthermore, there is likelihood that more charges are to be filed against the applicant as investigation into the matter is still ongoing. So these are the factors the court should put into consideration before giving bail to the applicant.
The state chief prosecutor finally urged the court not to grant bail to Sabally but recommended for the accelerated hearing of the case. The case resumes on November 25 for ruling.
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