Sunday, September 25

GP Trial: Prosecution Questions High Court’s Jurisdiction To Hear ‘No Case To Answer’ Submission

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Gam Petroleum Storage Facility Depot in Mandinary

By Landing Ceesay

The Prosecution in the Gam Petroleum corruption scandal trial has questioned the jurisdiction of the High Court of the Gambia on the ‘No Case To Answer’ submission by the defence counsel following testimonies by twelve prosecution witnesses.

In his submission, the defence Lawyer Mene said the accused persons have no case to answer and should therefore not be called upon to defend themselves; but on 12th July 2022 the prosecution responded to the defence ‘No Case To Answer’ submission.

The Senior State Counsel Mballow said it is submitted that the Constitutional Criminal Procedure rights of the accused persons as enshrined under section 24 of the 1997 Constitution are not absolute, and said those rights are in two categories: qualified and privileged rights.

Mballow argued that the right to remain silent is misconstrued in the defence counsel’s submission and understanding of that provision. 

“It is because of the Constitutional presumption that the accused persons are presumed innocent and as such shall not be forced to prove their innocence,” he said.

The Senior State Counsel said the Constitution is not a procedural law and that the procedural law sets out the Standards and practices to be followed and to be invoked by the courts in the prosecution and defence of criminal cases.

“Section 3 of the Economic Crimes (specified offence) Act is clear as to the applicability of the Act, some other Acts particularly the Criminal Code and Procedure, but to the extent only if those Acts are not settled law under section 3 (2) (a) of the Act- ousts the court’s jurisdiction to hear application under Section 238 of the CPC for ‘No Case Submission’ per Ikpala J, in the State Vs Lang Dibba and 2 others (Criminal Case No. HC/1441/ 10) ruling delivered on 4th July, 2011,” he said.

Counsel Mballow said Section 3 (2) of the Economic Crimes (specified offences) makes no difference if the court hears an application in a normal case; andrules that the accused have a case to answer.

Mballow said it is submitted that the accused would still exercise his rights to remain silent in practical, resting his case on the prosecution’s case; right to make a statement without giving evidence on oath, and shall not be cross-examined by any and the right to give sworn evidence.

He further stated that it is submitted that if the defence is not content or happy with the law, Section 5 of the 1997 Constitution is settled; the court is not clothed with the jurisdiction to make a declaration that Section 3 of the Economic Crime (specified offences) Act is void due to its inconsistency with the Constitution.

“I invite the defence to invite us to the Supreme Court for that exercise and not to shortcut such an important matter before the High Court,” Mballow said.

Senior State Counsel Mballow’s submission on Principles of ‘No Case To Answer’

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Counsel Mballow said most of the commonwealth countries like Ghana, Nigeria, Uganda and Kenya most of their substantive and procedural laws arefrom the United Kingdom and the practice model from the UK is still considered a good practice and applicable as in “all caps fit in one size”.

“What, if this honourable court develops the jurisprudence of our laws by making a clear distinction between the jurisdiction, establishment and practice of law in the United Kingdom and establishment, jurisdiction and procedure of laws applicable in the Gambia by refusing to adopt procedures not akin to our procedure anymore.

“If my lady examines the literature behind a submission of ‘no case to answer’, this court will realise that it was first applied in a civil case and later in Criminal Cases with special procedure distinct from our procedure and establishment,” he said.

Mballow said the notion of the trial judge warning the jury to stop the trial and direct them to the evidence that the prosecution has not made out a prima facie case sufficiently to warrant the accused open their defence was a trial by jury.

He further argued that it is submitted that trial is no longer applicable in this jurisdiction by virtue of section 131 (2) of the Constitution of the Gambia 1997.

“Now the question to ask is, who is this honourable court now warning to stop the prosecution’s case at this stage? Nojuro. Is it still reasonable to continue an old practice, which has completely different procedure and practice for as far back as R. V. Galbraith (1981) WLR 1039?” Mballow asked.

Mballow said it is their submission that the only clear provisions which is so close to what is known as a ‘no case to answer’ is provided for in Part V, which is procedure for trials before the subordinate courts under section 166 of the Criminal Procedure Code, Cap 11:01 Vol. iii laws of the Gambia 2009.

Mballow said aside that, another provision the defence linked to a ‘no case to answer’ is Section 238 of the Criminal Procedure Code, Cap 11:01 Vol. iii laws of the Gambia.

“The learned defence counsel repeatedly and without basis kept referring to Economic Crimes (Specified Offences) act as a decree. Until when the Law Reform Commission incorporated it into Vol. iii, it was in separate legislation. In fact, there is no mention that the offence charged is contrary to a decree.

“This was settled by Section 4 (u) of the Law Revision Act read with the second schedule of the 1997 Constitution. Transitional and consequential provisions, Section 6 (1) which empowers the Commissioner to re-designate all decrees as Acts and hence its incorporation into Vol. iii laws of the Gambia. Assuming it was Section 7 (c) of the 1997 Constitution settles this issue beyond the reach of this matter. It is part of our laws and is as good as any other law,” Mballow argued.

Lawyer M.D. Mballow and Abdul Aziz Saho represented the State, while the lawyers Christopher E. Mene, B. S. Conteh, and S. Akimbo, Pauline Bakurin, and Sasum Sillah represented the 1st accused (Saihou Drammeh), and 2nd accused (Lamin Gassama) in the hearing.

Lawyer Mene is the lead counsel of the accused persons in the trial at the High Court of the Gambia involving two staff of Gam Petroleum.

The 2 staff namely Saihou Drammeh (1st accused), former Managing Director and Lamin Gassama (2nd accused), former Operations Manager of the institution are charged with 8 counts (3 counts of economic crimes and 5 other counts) in the alleged corruption scandal.

The eight counts are levelled against the two in their maiden court appearance at the High Court in Banjul on 4th April 2022 presided over by Justice Haddy Roche.

Their appearance in court followed their arrest regarding their alleged involvement in the alleged corruption, malpractices and the missing of fuel products worth USD 20 million at the depot.

The prosecution’s submission would continue in our subsequent publications.

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