The cruelties of our criminal justice system

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By Yankuba Darboe

The problem with the Gambia’s criminal justice system is the locking up of everyone charged with capital offence at Mile 2. It leaves no room for discretion of the courts to grant bail, even where that is necessary.

Both Bob Keita and Sainabou Mbye’s cases deserve bail, if properly considered. This is because presumption is always in favour of granting bail, a long standing legal maxim, which in most democracies is overturned only where the accused person is likely to re-offend or pose a danger to society, or likely to abscond or run away or interfere with witnesses.

But Yahya Jammeh over the years decided, in his dictatorial mindset, to strip our courts and judges of the powers to grant bail, as long as the accused person is charged with capital offence. Yahya Jammeh later weaponised the same against his perceived opponents, such that if he wants to lock up anyone, all he needs is to charge that person with one of those capital offences and the person would legally be locked up at Mile 2 until the lord sends his mercy to his/her rescue.

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Unfortunately, that terrible criminal justice system, inherited from Jammeh’s dictatorship, has been happily embraced by the Barrow administration, which presents itself as a democracy.

Thus, even where all evidence proves that an accused person will not harm anyone in the society during his or her trial, or will not abscond, or will not interfere with witnesses, they are happy to lock him/her up at Mile 2 for the rest of his/her days.

If Bob Keita was granted bail, his case would not have attracted that much adverse public outcry. But it attracted public outcry because the cruelties of our system became so obvious for all to appeal than the offence. Otherwise why would any decent society come to the defence of a person accused of rape, since nobody wants their daughter or sister or mother to be a victim of such an offence?

But if the process to justice becomes so cruel than the offence, then it impugned the justice longed for.

Our police for some reason are too accustomed to the practices of the past that they find it heinous to change. Otherwise, despite the confessions of the former Solicitor General, Cherno Marenah, at the TRRC that the practice of presenting accused persons with capital offences at magistrates courts are unlawful – purely designed to fast track their detention at Mile 2 and depriving them of any chance of early bail, if the case is first presented at the High Court – the police continue to take accused persons with capital offences to magistrate courts, which had no powers to deal with such offences. As such courts would only confirm that fact and send the case to the High Court, where the case should have been presented in the first place. But it is simply done to secure the detention of the accused persons at Mile 2 and to deny them of any chance of bail at the High Court on the first day of their appearance there.

It is the result of these cruelties of our system that both Bob Keita and his wife, Sainabou Mbye, are languishing behind bars, whilst waiting for justice, when they could have been eligible for bail and allowed in society whilst fighting for their cases, without having any adverse impact on the process of securing justice in their cases.

I know many believe this is karma, but my people this is not just karma, this the cruelty of our criminal justice system and until we call it for what it is, and ask our MPs to change the law, so that all offences are bailable and that bail is determined by the courts, taking into consideration the seriousness of the offences, the individual’s history, their likelihood to reoffend or cause harm to society, or abscond or interfere with witnesses, we are all doomed to become its victims. I know it first hand, because I was a victim of the same cruel system.