By Omar Bah
A Bundung high court judge, presiding over the famous Bob Keita rape trial, has yesterday insisted on a DNA test to be carried out on the accused and a man believed to be the boy friend of Mr Keita’s alleged victim.
Another of those required to do the test, the child of the complainant, died Friday but the court was informed that a sample had already been collected from him before he died.
Mr Keita faces a single charge of rape which he denied.
In May, state prosecutors filed a motion for the high court to grant an order for a DNA test between the accused person and the child of the girl he is accused to have raped.
However, the defence team had argued that it is opposed to the motion for DNA because paternity is “not the subject matter of the substantive trial before the court”.
Last week, Justice Momodou SM Jallow granted the prosecution’s appeal for a DNA test to be conducted on the child, Keita himself and the alleged boyfriend of the child’s mother.
However, at the last hearing on Thursday, the state counsel informed the court that the child had been in coma and admitted in a hospital in Dakar.
On Sunday, news emerged that the child had passed away, reportedly of suffocation after being left in a locked car for hours.
When the case resumed yesterday, civil litigation chief Kimbeng Tah presented himself as the lead prosecutor in the case to be assisted by counsel Alasan Jobe who was leading the prosecution.
In his submission, Counsel Tah told the court that all the modalities are in place for the immediate implementation of its orders for DNA.
“We are therefore seeking leave of this court for the accused person to immediately proceed to the EFSTH for the collection of samples at the conclusion of this proceeding.
Secondly, the DNA evidence will need to be submitted by the state by way of expert evidence.”
He however informed the court of the passing of the child who is the object of DNA testing in the trial.
But he was quick to say that samples have been collected prior to his demise.
Reacting to Counsel Tah’s submissions, the defense lawyer Lamin Camara told the court he is objecting the state’s application as it had no legal basis.
“My Lord on the 7th of July 2022 when the ruling was read, Counsel K Jallow informed the court that the accused person is desirous of appealing against the order of the court and therefore applied for the ruling which the court promised to avail. My Lord, a right to appeal your Lordship’s ruling is a constitutional right of the accused person and that right can only be competently exercised by the accused person if he is granted a copy of the ruling of the court,” he said.
Lawyer Camara said an appeal will be rendered competent if the judgment, order or ruling is attached to the notice of appeal.
He argued that pending a determination of the application of the stay of execution, the state cannot proceed with what they are doggedly determined to do.
“In a nutshell, the court needs to avail the accused a copy of the ruling for the appeal and therefore the court cannot grant this application today which can only be done if the ruling is served upon the accused person,” Lawyer Camara added.
On the submission that sample had been collected from Muhammed before he passed away on the 8th of July, Lawyer Camara argued: “My Lord the submission is worrying, disturbing to say the least. Because it can only mean that: Blood samples were allegedly extracted before the ruling without the presence of no interested person, counsel and the accused. My Lord, that is totally unacceptable to the accused person because it’s against all principles of fair hearing and transparency.”
He added that if the blood extraction of the child is to be subject to DNA examination, it must be done in a manner that inspires confidence, trust and transparency and not behind closed-doors.
Lawyer Camara reminded the court that the compliance with its orders means extracting blood samples from three parties after the ruling and not before.
Base on the circumstances, Lawyer Camara urged the court to refuse the application and order that the defence be served with the ruling immediately for them to file an appeal.
But reacting to the defence lawyer’s submissions, Counsel Tah said there was no fresh application made by the state, instead it was only informing the court about the developments in the case and the steps it is taking in enforcing the court’s ruling on DNA test.
He said the declarations of intention to file an application for stay of execution and notice of appeal “no matter how eloquently and passionately submitted can never be equated to a stay of execution”.
He said a physical copy of the ruling delivered viva voce is not a prerequisite to filing an appeal.
“There is no requirement whatsoever for a physical copy of a ruling to be attached to the notice of appeal. As per the law, there is no appeal, there is no stay of execution. Until such an application is made by this honourable court, the state is obligated to carry out the orders of this honourable court as not to do so by the state and the defence will amount to contempt of court,” he added.
After listening to both parties, Justice Momodou SM Jallow ordered that Bubacarr Keita be taken to the Edward Francis Small Teaching Hospital for his blood sample to be taken.
He ordered for the accused person, the deceased toddler Muhammed and Pa Modou Johm to be subjected to DNA samples being extracted from them.
“It’s noteworthy to guaranteeing all constitutional rights of the accused and the other two persons being subjected to the extraction of DNA samples pursuant to Section 23 of the 1997 Gambian constitution,” Justice Jallow said.
On the defense appeal for stay of execution, Justice Jallow argued: “Stays of execution even if applied for would not be granted if they are purposely requested to waste the court’s time.”