By Bruce Asemota
The former AFPRC junta member, Yankuba Touray who is currently standing trial for the murder of his former colleague Ousman Koro Cessay in June 1995, has now been cleared by the High Court to testify in his defence.
Last week when his lawyer applied for him to testify, the state objected, it saying it was too late since other witnesses have been cross-examined already.
In reply, the defence lawyer submitted agreements as to why Yankuba should be allowed to testify.
In yesterday’s sitting, Justice Ebrima Ba Jaiteh ruled that Yankuba Touray should be allowed to testify.
Justice Jaiteh pointed out that the law governing the procedure where the accused person is defended and intends to call other witnesses other than the accused is provided under section 240(4) of the Criminal Procedure Code.
He stated that from the import of section 240(4) of the CPC, the laid-down procedure is when the prosecution closed its case, the accused is required if he or she desires to give evidence on oath and thereafter to call his witnesses.
Justice Jaiteh asserted that in the present case, the accused person did not follow this laid down procedure because he called his witnesses and thereafter, he now desires to testify.
Justice Jaiteh disclosed that there is no sanction created if the accused failed to testify before calling other witnesses in his defence, adding that there is no legal effect created in section 240 (4) of the CPC if the accused failed to testify before calling other witnesses.
He pointed out that section 240(4) of the CPC is merely directory and not mandatory and if the legislature had intended to make it mandatory, there would have been a sanction for breaching section 240(4) of the CPC and the court in its quest of doing substantial justice cannot punish the accused for a breach of duty when the act is directory.
Justice Jaiteh stated that every person who is tried for a criminal offence must be given full opportunity to defend himself or herself before the court in person and present his case and call witnesses in his defence. He said failure on the part of the Court is a breach of natural justice.
He further stated that the rights of accused in criminal offences are protected by section 24 of the 1997 Constitution of The Gambia. Section 24 of the Constitution is an entrenched fundamental human right clause and the courts are enjoined to respect and protect these rights.
Justice Jaiteh stated that the accused person must be accorded a fair hearing and be allowed to testify in this murder trial.
He further stated that the accused has the right to be present in court in the trial from arraignment up to judgment and all the witnesses for the prosecution and the defence have to come face to face with the accused during their testimony and the issue of prejudicial effect is immaterial in the context of the accused person’s testimony before the court.
Justice Jaiteh said the prosecution will have the opportunity to cross-examine the accused on his testimony and the weight to be attached to each and every piece of evidence shall be determined at the end of the trial.
The High Court Judge stated that in the interest of fair hearing and natural justice, Yankuba should be allowed to testify.
Justice Jaiteh asserted that his court is under an obligation to give the prosecution and the defence the opportunity to present their respective cases without any hindrance from the beginning to the end which will make impartial observer leave the courtroom believing that the trial has been balanced and fair.
Touray is expected to take the witness stand today.
