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Friday, July 10, 2020

Re: Palaver over Faraba trial discontinuation’

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Introduction:
I was terribly flabbergasted and visibly astounded to read a very interesting article titled:- “PALAVER OVER FARABA TRIAL DISCONTINUATION”, authored by Lamin Cham and published in Page 2 of Thursday 10th January 2019 publication of The Standard Newspaper. The first paragraph of the said article reads:-“The announcement by State House that President Barrow has accepted appeals by the people of Faraba to discontinue the trial of people connected with the June 18th 2018 bloody riot, has drawn sharp criticisms around the country, including even a near rebuttal from the Ministry Of Justice.” I am very elated, that the announcement by State House never said that “President Barrow has pardoned those accused who were undergoing Criminal trials, in connection with the June 18th 2018 bloody Faraba riot.”

The word “Pardon”, is a technical legal term, before His Excellency President Adama Barrow, can “Pardon” any person, in pursuance of his executive power of “Prerogative Of Mercy”, granted to him by Section 82 of The 1997 Constitution:- (1) The person or prospective Presidential beneficiary concerned, must be someone who has been convicted by a Gambian Court of competent jurisdiction, and serving his/her sentence in a Gambian prison or “House Of Correction”, either with or without hard labour, (2) The Prerogative Of Mercy Committee, established by Section 82 (2) of the said Constitution, should have Officially met to consider this matter, and later advise His Excellency The President accordingly. The Honourable Attorney General & Minister Of Justice, is the able Chairman of the said Committee. If the State House Press Release had used the word “Pardoned”, ill-intentioned opponents and detractors of His Excellency President Adama Barrow, would have made a lot of unwarranted noise about this legal error, in both the print and electronic media, just to have cheap popularity.

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The second paragraph of the said article reads:-“The statement had said the decision by the President was taken in the interest of reconciliation among other things. However, even before the ink on the statement was dried up Gambians took to Social Media, denouncing the act as a violation of the Constitution, since The President has no powers to stop prosecution in any case.” If The President’s act has violated the Constitution, we should have been told, which Section was allegedly violated? Law Of Evidence says:-“He who alleges must prove.” Yes, it is very true, that The President’s decision was made “…..in the interest of reconciliation among other things.” Those Gambians who rushed to the Social Media challenging The President’s decision and alleging that “….the said decision was a violation of the Constitution, since The President has no powers to stop prosecution in any Case…..”, were indeed saying monumental legal nonsense.

I will provide the incontrovertible legal evidence for this assertion, later in this legal article. The late Father Matthias Murphy (C.S.S.P.), a Roman Catholic Priest, and my Bible Knowledge (B.K.) Teacher at the then St. Augustine’s High School, (a Citadel Of Learning), liked quoting this famous adage:-“Fools rush in, where Angels fear to tread.” In 1959, two years before Her Majesty Queen Elizabeth The 2nd made a Royal Visit to Colonial Gambia, the then Methodist Boys High School and Methodist Girls High School (2 Citadels Of Learning, owned by The Gambia Methodist Church, my Church), were Officially amalgamated to form the then Gambia High School (another Citadel Of Learning), which has now metamorphosed to The Gambia Senior Secondary School (G.S.S.S.).

Part of Paragraph 2 of the said article reads:-“Madi Jobarteh, a vocal human rights activist, said The President has no authority to discontinue any Court Case in anyway.” Again what Mr. Madi Jobarteh, a so called human rights activist was also saying, was indeed tantamount to a monumental and totally unacceptable legal nonsense, that was coming as usual, from a notorious legal quack or charlatan, who is always pretending to be a Lawyer, when in actual fact, he does not have “The foggiest idea about the Law”, as My Learned Friend, a former Dean of The Faculty Of Law of Fourah Bay College, University Of Sierra Leone, a former Judge Of The Gambia Supreme Court, Sierra Leonean-born Professor DR. Henry Joko Smart, would say. In my immediate past published article titled:- “Madi Jobarteh And Mamma Kandeh Maliciously Misconstrued President Barrow’s Security Statement”, I strictly warned him to desist from dabbling in the learned legal arena, and to avoid making fraudulent legal misrepresentations in Gambian Newspapers and in the Social Media, but he refused to listen to my professional advice, and he is hell bent on publicizing his unacceptable legal ignorance with glee. This is now his unacceptable and unpalatable academic hobby.

This Press Release from State House inter alia purportedly said:-“….Based on the foregoing the President has accordingly accepted to respect and grant the wishes of the community, particularly families of the victims, to immediately withdraw all the Charges against the P.I.U. Officers and Civilian perpetrators concerned….” I can now fully understand, why the Honourable Mr. Alhaji Aboubacarr M. Tambadou, The Attorney General & Minister Of Justice, honestly described the words in the said Press Release as “Unfortunate Words.” These words of that Press Release could have been an error, however “to err is human, and to forgive is divine”, It is however not too late to rectify this error now. “It is better to be late than never.”

Mr. Madi Jobarteh was legally wrong to say that, “…The President has no authority to discontinue any Court Case in anyway…”, because Section 76 (1) of our 1997 Constitution, vests Executive Power in His Excellency President Adama Barrow, and he can easily use this to issue an Executive Order to the Honourable Attorney General & Minister Of Justice (Honourable Mr. Alhaji Abubacarr M. Tambadou), to stop or discontinue any Court Case (be it Civil or Criminal) pro bono publico (Latin:- for the good of the public), and this will be legally right.

The ball is now in the court of The Honourable and Learned Attorney General & Minister Of Justice, in his Official and Constitutional capacity, as The Chief Legal Adviser Of The Gambia Government, to urgently advise His Excellency The President on this matter, having due cognizance of all the factors namely:- being merciful, promoting reconciliation and peace in Faraba, The President’s aforesaid purported acceptance, respecting “Separation Of Powers” etc..

Mr. Lamin Cham, in the said article, quoted Mr. Madi Jorbateh as having said “He has no such powers at all! The powers to discontinue a Criminal Case lies with the Director Of Public Prosecutions under Section 85 of the Constitution. Hence if The President did enter to stop the trial of P.I.U. Officers on the recommendation of the Faraba Commission then this decision constitutes a violation of the Constitution.” Again Mr. Madi Jorbateh was saying monumental legal nonsense. Yes, the power to stop a Criminal Case is vested in the Director Of Public Prosecutions (D.P.P.), (not exclusively) as dictated by Section 85 of the said Constitution, but let me enlighten him by adding, that the D.P.P. cannot stop or discontinue any Criminal Case, that has been instituted by a Private Prosecutor, by way of a Private Prosecution, except the Private Prosecutor agrees with this. There must be consensus ad idem (Latin:- meeting or convergence of minds) between the two aforesaid personalities. More importantly, Section 85 (4) Of the said Constitution says:- “In the exercise of his or her functions, under this Section, the Director Of Public Prosecutions, shall be subject to the direction and control of the Attorney General.” Under Section 68 of the Criminal Procedure Code (C.P.C.), The Honourable Attorney General is empowered to stop or withdraw any Criminal Case from a subordinate Gambian Court. Under Section 64 of the C.P.C., the D.P.P. is empowered to file a Nolle Proequi (Latin:-stop prosecution), to stop or discontinue any Criminal Case in any Gambian Court.

Going by the Official chain of command, the D.P.P. is Officially answerable to the Honourable Attorney General & Minister Of Justice, who in turn is Officially answerable to His Excellency Adama Barrow, The President Of The Republic Of The Gambia & Commander-In-Chief Of The Gambia Armed Forces. On Wednesday 9th January 2019, an Official Statement or a Press Release was divulged by The Attorney General’s Chambers & Ministry Of Justice, and it inter alia said:-“…The said request by the affected families, which is not unusual in this jurisdiction, was properly addressed to the Attorney General and was made through the Alkalo of the Village. The request is still under consideration by the Attorney General, and the Office of The President was only consulted for its views on the request in light of the fact that the Faraba incident on 18th June 2018 was of such national tragedy and importance that it warranted the establishment by His Excellency The President, of a Commission Of inquiry under Section 200 of The 1997 Constitution….” It is of paramount legal importance to note that, it was concerned and affected residents of Faraba Village, who rightly wrote a Petition to the Honourable Attorney General & Minister Of Justice (Honourable Mr. Alhaji Aboubacar M. Tambadou), under flying seal (U.F.S.) the Alkalo of the Village, (Mr. Omar Kujabi),and the learned Attorney General & Minister Of Justice, deemed it prudent and administratively correct, to send the said Petition to the Office of The President, for its views on this important matter.

Mr. Madi Jobarteh went on to myopically say: “But he cannot stop any Court Case in any way at any time. This is clear abuse of power and direct interference with the Judiciary.” I vehemently object to what Mr. Madi Jobarteh was saying, because if His Excellency Adama Barrow wants a Criminal or a Civil Case to be stopped, he would easily issue an Executive Order to the concerned Public Officer or Honourable Minister (Honourable Mr. Alhaji Aboucarr M. Tambadou, the Attorney General & Minister Of Justice), but ex abundante cautella (Latin:- out of the abundance of caution), he wisely decided not to do so, because this could have been seriously misinterpreted by some of his myopic opponents, (as it is the Case right now). Section 76 (1) of the said Constitution says:- “The executive power of The Gambia is vested in The President and, subject to this Constitution, shall be exercised by him or her either directly or through the Vice President, Ministers or Officers responsible to him or her.” Concerning Mr. Jobarteh’s alleged “direct interference with the Judiciary”, this is clearly not the Case here. He is indeed Judicially bankrupt. The heinous Judicial Offence of “interference with the Judiciary”, is allegedly committed, when either a member of The Executive or any other person or authority, tries to pressurize or corrupt a sitting Judge or Magistrate, so that he/she will decide a particular Case, in a certain way.

A classic example of this happened in The Republic Of South Africa a few years ago, when the then President, His Excellency Mr. Tabu Mbeki, tried to pressurize a sitting South African Judge, to decide a particular high-profile Case the way he wanted. He was caught red handed, and he was forced by Honourable South African Parliamentarians, to immediately and disgracefully tender his resignation as The President, of the new-found Republican State, after the Universally-condemned Apartheid Regime, legitimately and legally became a thing of the past.

The last paragraph of the Ministry Of Justice Press Release reads:-“The Office of the Attorney General reassures the general public that the exercise of prosecutorial discretion is vested exclusively in the Attorney General which he executes mainly through the Office of Director Of Public Prosecutions and the Inspector General Of Police. This discretion, is exercised with due consideration of several factors including the public interest, and the wishes of victims’ families.” I concur in toto ab initio (Latin:- altogether from the beginning), that the wishes of victims’ families, is one important matter, which the Honourable Attorney General considers, when he is deciding whether or not a particular Criminal Case should be prosecuted ?, because if victims’ families are competent and compellable witnesses for a Criminal Case, and they do not want the Case to proceed, a sitting Judge or Magistrate can command them to appear in Court ( against their wishes), to give evidence, and they will surely comply with the Court Order, because if they fail to do so, they will be Charged with the heinous Judicial Offence of “Contempt Of Court”. But after these people have been commanded or forced to appear in Court, obviously they are going to be “Hostile Witnesses”, who will do everything in their power to frustrate The Prosecution’s Case, and to make it a foolish Case, so that securing a conviction, concerning any Charge(s), on The Charge Sheet, will certainly be a monumental legal impossibility.

Conclusion
In conclusion, let me humbly and authoritatively say, by purportedly accepting pleas for mercy from Faraba residents, for ongoing Criminal Cases to be stopped for very good social and legal reasons, His Excellency President Adama Barrow, has not violated any provision of The Gambia’s 1997 Constitution. As a Senior Canadian-Trained Theologian, let me say that His Excellency President Barrow, should be highly commended for his magnanimity and for being merciful. “Blessed are the merciful, for they shall obtain mercy.” –The Holy Bible. The Holy Qur’an also says:“Innalaha Tawwabu Raheem” Chapter 2 Suratul Bakara, Verse 128, meaning:“Allah forgives people and he is the most merciful.” Indeed His Excellency President Adama Barrow, is a good practising Muslim, and may Allah bless him richly. I rest my case.

Dr Henry DR Carrol (MRG), is a senior Oxford-trained Lawyer, Solicitor General Emeritus Of The Gambia & Founder Senior U.T.G. Law Lecturer (From 2007 to Date).

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