Counsel Combeh Gaye Counsel for Sainabou Mbye, Cherno Mbye and Kibili Dambelly
By Landing Ceesay
The Counsel representing Sainabou Mbye, and two others, Combeh Gaye, told the court that ‘it appears that the State are not serious’ with the case against her clients charged with manslaughter. While responding to the State Counsel’s submission on why they have not filed an indictment against her clients, Counsel C. Gaye on Wednesday accused the state of being unserious about the matter.
“Assuming there is even a charge file, we would have known that they are serious about this matter. But as it stands, it appears that the State are not serious about the matter, with all due respect to the state counsel. I know other procedures have been followed at the chambers. But the accused persons cannot suffer my lord. The accused persons cannot continue to suffer, whilst the state is putting their house in order,” the defence counsel told the court.
The defence counsel said there is nothing before the court right except a transferred file pursuant to section 208 (A) of the Criminal Procedure Code.
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She said she is sure that Justice Jaiteh is cognizant of the procedure of filing processes before the court, which is pursuant to section 175 A, B, C and G of the Criminal Procedure Code; and argued that since the matter was transferred from the magistrates court, there has been enough time for the State to atleast prepare an opinion, and bring something before this court.
“The accused persons remained in custody, therefore, since there is nothing before this court, I believe this court has the power to invoke Section 19 of the Constitution of the Republic of the Gambia in other to guarantee bail for the accused persons, until when the State are ready to bring an indictment before this court.
“Right now, as it stands, counsel for the state cannot be certain as to how long that would take. The opinion itself is not ready, the autopsy has not been performed, and enough time has elapsed since the Magistrate made the order for the transfer of this case,” she told the court.
Counsel Gaye further submitted that she believes the rights of the accused persons is paramount at this stage and that the court ought to protect the rights of the accused persons, since there is nothing before the court.
The defence also urged the court to invoke section 19 of the Constitution of the Gambia, which guarantees the personal liberty of the accused persons and grants them bail, either on condition or unconditionally.
“Section 24 subsection 3 (A) of the Constitution guarantees the right to presumption of innocence. The accused are innocent, until they are proven guilty, not the other way around. The court has to protect that right.
“I believe we all have a duty to start doing the right thing. We cannot detain people while you take your time and prepare a case against them. According to the provisions of the Constitution, which I mentioned my lord, I urge you to exercise your discretion to grant the accused bail,” she submitted to the court.
Gaye further told the Court that section 208 of the Criminal Procedure Code says where a charge has been brought against any person of any offence not triable by a subordinate court, the Magistrate may subject to section 99 remanded that person, until such time that the matter is mentioned in the High Court.
She said the provision is very clear and it is routinely used in practice and that the prosecution, which is the State, knows that as soon as the matter comes before the High Court, the order of the Magistrate elapses, and then everything now is in the hands of the High Court.
“Unfortunately, nothing has been filed as an indictment. Then, we revert to the Constitution. Since there is nothing by way of indictment before the court, we revert to the Constitution. The Constitution like I already mentioned guarantees the rights of the accused persons. So to oppose the bail without any reason is unreasonable, in this circumstance,” she told the Court.
In response to the defence counsel, Patrick Gomez, the counsel for the State said it is “misleading information” to suggest that there is nothing before the court; and said the matter is a transferred confined by the law
The State counsel said he thought the defence counsel should read the position of the law regarding transferred matters.
“We did not appear at the Magistrate as Attorney General’s Office, but the prosecution department. So to say that the State is not serious is really not a fair comment. The seriousness of the matter is why we are here. The accused persons are charged with manslaughter. Perhaps, it is more convenient for us filing an indictment of manslaughter, which is not bailable,” he said.
The ex-wife of remanded Bob Keita Sainabou Mbye, Cherno Mbye and Kibili Dambelly are charged with manslaughter, contrary to section 186 of Criminal Code Cap: 10.01 Vol.III, Laws of the Gambia 2009.
The particulars of the offence stated that Sainabou Mbye, Cherno Mbye, and Kibili Dambelly on or about the 3rd day of July 2022, at Kanifing and diverse places in the Republic of the Gambia, by unlawful act or omission, amounting to culpable negligence, left one Muhammad Mbye, a two-year-old boy resident of Brusubi inside a car, which causes his death, thereby committed an offence.
The State counsels are Patrick Gomez, S. Camara and F. Drammeh; while Lawyers C. Gaye, Sagarr Thomas, and M. Faye are representing Sainabou Mbye, Cherno Mbye, and Kibili Dambelly in the case.
The case is adjourned to Friday (tomorrow) for further mention.