By Mafugi Ceesay
The Banjul High Court presided over by Justice Ebrima Jaiteh will on Monday rule on the bail application made by Yankuba Touray who is facing a murder charge.
Touray is charged with the murder of ex-secretary of state for finance, Ousman Koro Ceesay, who was alleged to have been murdered sometime in June 1995 with the use of a pestle-like object and other dangerous weapons.
Abubacar Tambadou, the Attorney-General together with lawyers MB Abubakar, the Deputy Director of Public Prosecution and A.M. Yusuf, the Principal State Counsel appeared for the State while Lawyers Abdoulie Sisoho and Patrick Gomez appeared for Mr. Touray.
In his argument for bail for his client, Lawyer Sisoho told the court that the status quo has changed and that the Supreme Court in civil suit number 001/19 in the case involving Henry Gabriel and The State, bail was granted to a convict pending the appeal.
He argued that the accused person is presumed innocent until proven guilty.
“Why should the court adjourn the matter for 15 weeks?” the defense Lawyer asked.
He said if the slogan ‘New Gambia’ is real, the rule of law must be duly followed and the accused should be granted bail.
“The accused person should be granted bail and the trial should commence next week,” Lawyer Sisoho concluded.
In his reply, Lawyer Tambadou said Counsel Sisoho misconceived the Supreme Court case involving the State and Henry Gabriel. He said Mr. Gabriel was facing a charge and convicted on manslaughter while Mr. Touray is charged with murder.
He said the initial murder charge in the Gabriel case was amended to manslaughter.
Layer Sisoho meanwhile countered in his reply making reference to a certain provision of the Criminal Code where murder and manslaughter fall in the same category of offences.
Meanwhile, when the charge was read to Mr. Touray for him to take his plea, he told the court: “I plead my constitutional immunity.”
Justice Jaiteh then put it to Mr. Touray that since he refused to take his plea, the court would enter the plea of not guilty of the offence as charged. Touray maintained his plea that he invoked his constitutional immunity.
Justice Jaiteh said: “The accused has indicated that he pleads his constitutional immunity. He did not enter a plea of guilty or not. Under the circumstance, I enter a plea of not guilty for the accused person,” the judge said.
The Attorney-General, Abubacar Tambaou in his submission said the court is right by entering a plea of not guilty under the circumstance.
He said the accused is challenging the jurisdiction of the court to hear and determine the matter by raising issues of constitutional immunity.
“It is a challenge that cannot be ignored,” Tambadou told the court.
He said a general claim for constitutional immunity such as the one claimed by Mr Touray is ambiguous.
“There is nothing or no provision of the Constitution that the accused person sought to invoke. We do not know the type of immunity he is claiming.
We do not know the category of offences he is claiming immunity for. The accused person cannot arrogate to himself the power to determine his immunity.
The claim for constitutional immunity cannot be ignored,” the Attorney-General submitted.
“It is the courts that should determine whether the defence should be upheld or not.”
He sought for an adjournment to enable the prosecution to amend the indictment to add at least ten (10) additional counts of murder and other serious offences.
He said because of this amendment, the prosecution needs to serve the accused all relevant information to help him prepare his defence consistent to his right to a fair hearing.
He asked the court to grant them an adjournment till after the vacation which would be in October 2019.
In his reply to the bail application, Lawyer A. Sisoho said the charge before the court is murder.
“We urge the court to try this case next week from Monday to Friday. Any proposed amendment is not before the court and those alleged offences have no nexus to this case.
They can file a new indictment as it regards those proposed amendments,” Counsel Sisoho said.
He said the issue about section 127 of the Constitution that the Attorney-General raised does not arise in the case.
He relied on section 127 (2) of the Constitution which provides that when issues of enforcement or interpretation of the Constitution arise, the matter should be stayed pending the determination of the Supreme Court.
“Unfortunately, there is nothing before this court as a precedent that would require referral of the matter to the Supreme Court,” Sisoho said.
He said if the Honourable Attorney-General feels that a referral is necessary, he can file a new suit before the Supreme Court invoking its exclusive original jurisdiction.
