Skip to main content

Why stiffening private criminal prosecution?

The draft amendment Criminal Procedure Code (CPC) seeks, among others, to stiffen private criminal prosecution. The private prosecutor will be left with little or no rights if the draft bill becomes law.
The draft CPC amendment bill will undermine people’s right to initiate and continue with private criminal prosecution if it is allowed to pass to become law. What sense does it make for a Director of Public Prosecutions to be given the power to discontinue a private criminal prosecution? 

The differences between the current CPC and the draft amendment of the CPC

The current Criminal Procedure Code thus provides that a person, other than a public prosecutor or a police officer, who has reasonable and probable cause to believe that an offence has been committed by a person, may make a complaint thereof to a Magistrate who has jurisdiction to try or inquire into the alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to reside or be. The complaint may be made orally or in writing signed by the complainant, but if made orally shall be reduced into writing by the Magistrate and when so reduced shall be signed by the complainant.
 
The draft CPC provides, “any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he or she individually suffered in consequence of the commission of the said offence.”
 
So what one will deduce from this comparison is that the two are speaking different tunes wherein one is about the reasonable and probable cause of the offence as alleged, the other is talking about substantial and peculiar interest in the issue.
 
Which one is the best? People should be able to tell.

The CPC also provides: “The Magistrate, upon receiving a complaint under subsection (3) of this section, if he or she is satisfied that prima facie the commission of an offence has been disclosed and that the complaint is not frivolous or vexatious, shall draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence or offences alleged to have been committed by the accused.”

The draft CPC makes it mandatory for the private prosecutor to obtain a certificate from the DPP to initiate a private prosecution without which the case cannot go. The DPP has the power to reject the request and will state in writing the reasons for disallowing the private prosecution. The private prosecutor has to prove that the DPP has seen the affidavit. The draft makes it a requirement to consult with the DPP. It provides that “the process is endorsed by the Director of Public Prosecution that he or she has seen the information and has declined to prosecute the offence set out in the process.”
The 1997 Constitutional Provision on Private Prosecution

The 1997 Constitution provides that the Director of Public Prosecution has the power to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia. Also, to take over and continue, any criminal proceeding, that has been instituted by any other person or authority. Finally, to discontinue, at any stage before judgment is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority.
 
The 1997 Constitution provides that the DPP shall not take over and continue any private prosecution without the consent of the private prosecutor and the court (see section 85 of the Constitution). This provision of the 1997 Constitution, in my considered view, is progressive and I think we should maintain it in our laws.

We all know, the Director of Public Prosecutions (DPP) is appointed by the President under section 84 (2) of the Constitution and his office is a public office.

Private criminal prosecution is a constitutional right which no person or authority should undermine or weaken. Section 86 of the 1997 Constitution provides for private criminal prosecution. It lay down the following:

“An Act of the National assembly may make provision for private prosecutions.”

The Act of the National Assembly that provides for private criminal prosecution is the Criminal Procedure Code. The current code (which the draft seeks to amend) under section 69 titled “Method of Instituting Criminal Proceedings”.

The laws provide that criminal proceedings may be instituted by a person, other than a public prosecutor or a police officer, making a complaint as provided in subsection (3) of this section and applying for the issue of a warrant or a summons in the manner herein mentioned.

In essence, the current code provides that the person who intends to do private criminal prosecution will have to take the complaint to a magistrate who must satisfy himself or herself that the charges are not frivolous or vexatious and there is a prima facie case. The current Criminal Procedure Code does not make the DPP the determining authority instead of the courts.

Here is what I abhor the most about the draft CPC:

The draft provides: “The Director of Public Prosecution may in respect of any private prosecution, apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case so that a prosecution for the offence in question may be instituted or, as the case may be, continued at the instance of the State, and the court shall make such an order.”

The importance of private criminal prosecution in a democratic country cannot be overstated because it gives private citizens the right to institute and do criminal prosecution. 

The DPP is not likely to take up matters against the State or public officers. So if you stiffen private criminal prosecution, it would serve as a catalyst for an easy route to endanger people’s right to access justice. If the State is not ready to prosecute, why not allow private citizens to carry on?

DPP should not be allowed to use his or her discretion to discontinue a private criminal prosecution. Any law that gives the DPP the power to discontinue a private criminal prosecution, in my view, should be regarded as a draconian law. This is because its primary objective is to discourage private criminal prosecution. 

Private Criminal Prosecution should not be done at the whims and caprices of the Director of Public Prosecution. The rights of a private criminal prosecutor should be respected. Allow the courts to do their work. The procedure is clear on how to initiate private criminal prosecution, therefore, the DPP should not have the power to discontinue private criminal prosecution.

Be wise. Let us stand against this latest move to amend the aforesaid provision of the Criminal Procedure Code. If we allow it to go unchecked, then we will face the consequence.

Yankuba Jallow.
Final Year Law Student,
The University of The Gambia.

Comments

Popular posts from this blog

Niang Sarang Jobe continues in her pursuit for justice

Niang Sarang Jobe, a co-victim of the December 2004 gunshot attack which claimed the life of Deyda Hydara, a co-founder of The Point Newspaper said she won’t relent in her pursuit for justice. Nyang Sarang was in a vehicle together with late Deyda Hydara, and one Ida Jagne on the night of the 16th December 2004, when they were attacked by unknown gunmen. Jobe sustained serious bullet injuries and as a result of the injuries, she could not engage in gainful employment for seven years. On the 18th November 2018, Niang Sarang Jobe brought a case before the High Court seeking an order for Mandamus compelling the Government of The Gambia through the Attorney General to provide her adequate compensation. The application was supported by a 12-paragraph affidavit sworn to by Niang Sarang Jobe. On the 27 th day of May 2020, the High Court presided over by Justice Sainabou Wadda Cisse struck out the case of Niang Sarang Jobe versus the Attorney General. In her judgment, Justice Saina...

Court Awards D500,000 Against Gambia Government After Conceding Acting Arbitrary

The Gambia Government has conceded that they unlawfully occupied the property belonging the Global Home of Medical Mission (Global HOMM) which is currently being used by the Anti-Crime Unit.  This came after they were dragged to court by Global HOMM over the property currently used as the headquarters of the Anti-Crime Unit of The Gambia Police Force. In September 2019, a judgment was obtained from the Kanifing Magistrate’s Court in favour of the group in which writ of possession was issued. From September 2019 to date they are struggling to take over the land. The magistrate made orders that the group shall take have possession of the property. Also, the court awarded cost in favour of the group and ordered the defendants to pay them fifty thousand dalasis for general damages for trespass. The lower court ordered the defendant to pay the group twenty five thousand dalasis for the cost of the action. Appearing before the high court on Monday, 30 th June Muhammed B. Sowe for ...

Why the blog?

Why blogging? With my great love for journalism and media work; with my passion for law and justice; and with my love to inform people, I deemed it important to create this blog primarily to educate and inform people about our courts. I will publish court stories here as well as raise issues facing the courts. The stories will be factual and it will be written in the most simpler language for the readers to understand. I will interview lawyers as well as raise important topics for the readers to comment. I will also publish important stories that are related to the judiciary and the bar. They are the two primary stakeholders of the courts. I will also publish images and videos here where possible wherein people talk about the courts and judiciary. I will also publish my videos whenever I deem it necessary to do so. I hope you will find this blog interesting. Please do share the articles for more audience too. Who is Yankuba Jallow? He was born in Sibanor – Foni Binta...