Magistrate sends Chairman, members of 3 Years Jotna to Mile 2

A trial magistrate has on Wednesday, 30^th January remanded the chairman and 7 members of the 3 Years Jotna Movement to Mile 2.

Magistrate P. Sarr remanded the accused persons pending their arraignment before the high court for lack of jurisdiction to try the third count.

The transfer of the case to the high court came through an application by the prosecuting officer –Superintendent M.D. Mballow although it was opposed by the defence lawyer – Lawyer Lamin S. Camara.

The accused persons are; Abdou Njie, the chairman of the movement, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh (the spokesperson), Fanta Mballow, Karim Touray, Yankuba Darboe (alias Yanks Darboe) and Muctarr Ceesay.

They 3 charges are; unlawful assembly, rioting after proclamation and rioters demolishing structures contrary to sections 70, 74 and 76 of the Criminal Code respectively.

Mballow applied for the court to transfer the matter to the high court because the court lacks the jurisdiction to try count 3 which deals with rioters demolishing structures.

The 3 Years Jotna Movement held their first protest on 16^th December 2020 and petitioned the President to honour his campaign promise to Gambians and step down in January 2020.

They took the street on Sunday, 26^th January 2020 demanding for President Adama Barrow to step down. This protest turned out violent after the police release tear gas on protesters asking them to disperse. 

On the charge of unlawful assembly, the accused persons are alleged to have jointly and unlawfully take part in an unlawful assembly on the 26^th January 2020.

On the second charge, rioting after proclamation, the accused persons are alleged to have continued with their protest by disregarding the proclamation made by Deputy Superintendent of Police Alagie Jallow in the name of the President of the Republic to disperse peacefully.

On the final charge, rioters demolishing structures, the accused persons are alleged to have assembled together and unlawfully destroyed the Gambia Technical Training Institute students’ waiting shed by setting it on fire.  

The Police Superintendent submitted that counts 1 and 2 attract imprisonment terms of a year and five years respectively while count 3 attracts life imprisonment.

“Our laws do not confer this court with the power to try offences that attract a life imprisonment,” Mballow said.

Officer Mballow said Legal Notice number 3 of 2009 provides for the matter to be transferred to the Special Criminal Division of the High Court to try offences such as count 3 because it attracts the sentence of life imprisonment. Mballow argued that the legal notice forms part of the laws of the Gambia as he relied on section 7 of the Constitution.

“Legal Notice number 3 of 2009 takes away the jurisdiction of this honourable court to try count 3 (rioters demolishing structures),” Mballow said.

He said since the legal notice oust the court’s power to try the offence it should transfer the matter to the high court and remand the accused persons pending their arraignment before the high court.

He said the Legal Notice was enacted by the Chief Justice in 2009 under the powers conferred on him by section 143 of the Constitution. Mballow urged the court not to grant the accused persons bail because it will be contrary to section 99 (1) of the Criminal Code. He said section 99 (1) of the Code provides bail for all offences except those that attract death and life imprisonment sentences.

Lawyer Lamin S. Camara, the lead defence counsel objected to Prosecutor Mballow’s application as he submitted that the court can try all the offences. He said the Legal Notice is a practice directive which cannot take away the court’s jurisdiction to try the matter.

He added: “The jurisdiction of the court can only be ousted by statute and not directives.”

Lawyer Camara submitted that the Legal Notice is not an Act of the National, not a rule and not a regulation but a practice directive creating a Division of a court.

“The legal notice does not oust the court’s jurisdiction to try the offences. The intent of the practice directive (Legal Notice) is contained in section 1. It provides ‘in the interest of effective case management and expeditious disposition of cases relating capital offences,” Camara said.

He said the legal notice does not create a court instead it created a Special Division of a court, therefore, it cannot take away jurisdiction.

Lawyer Camara said: “Capital offences attract death sentences and not life imprisonment,” Camara said, adding that “death, death and not life imprisonment.”

He said the court has the jurisdiction to grant the accused person bail on all the 3 counts even though the 3^rd count attracts life imprisonment relying on section 29 of the Criminal Code. He said the discretion of the court to hand down judgment prescribed by law is not fettered.

“Sentence to life imprisonment is not mandatory under our laws, unlike treason which attracts death. The court can reduce sentences including life imprisonment sentences,” Lawyer Camara said.

Barrister Camara said section 208 A of the CPC does not make it mandatory for the court to transfer the matter to the high court. He said the said section has the word “may” which means it is not mandatory to transfer matters adding that the court has the jurisdiction to try the case.

“The provision applies to offences that the court cannot try. Therefore, it is our submission that it is inapplicable here because the court has the jurisdiction to try this case (and the charges),” L.S. Camara submitted.

He reiterated that the practice directive (Legal Notice) is not a law; not an Act of the National Assembly, not a rule and not a regulation.

Mballow in his reply on points of law said Legal Notice number 3 of 2009 is a law envisaged and recognised by section 7 of the Constitution. He said section 27 of the CC deals with punishment and it has no bearing in the argument.

“This court cannot deal with an offence that it does not have jurisdiction to try,” he said.

He added: “capital offence does not exclude offences that attract life imprisonment. Capital offences include life imprisonment.”

Magistrate Sarr ruled that the Legal Notice is a law and it has ousted the jurisdiction of the court to try the case. She said the Legal Notice is subsidiary legislation and therefore section 7 of the Constitution provides that subsidiary legislation forms part of the laws of the Gambia. She said she lacks the jurisdiction to entertain the matter as she transferred the matter to the high court and remanded the accused persons to Mile II.