The Unnatural Offence Case: What a U-Turn!
Dawda Faye, a senior judicial correspondent of The Point newspaper
Wednesday, August 08, 2012
The case that involved twenty people who were charged with unnatural offence attracted local and international attention.
Representatives from the American Embassy in Banjul were present in court on two or three occasions to observe the proceedings.
The court was always full to capacity, as the loved ones of the accused persons and the members of the public would attend the court proceedings.
While in the court room, one could hear people in the gallery accusing the accused persons of being homosexuals.
Were they homosexuals?
This is what the prosecution was expected to prove. Not only to prove it, but to prove it beyond reasonable doubt. And if there was any shadow of doubt, the benefit would have gone to the accused persons.
To discharge the burden on the shoulders of the prosecution, they called some witnesses to testify to prove that the accused persons were found wanting.
But the witnesses who were called to testify gave contradictory pieces of evidence.
In summary, the first persecution witness told the court that the accused persons were found at Elite Fitness Centre, dressing and walking like women.
There was another witness who testified that the accused persons were drumming and dancing.
Yet, another witness told the court that as they were heading to Elite Fitness Centre, they saw the accused persons running to different directions.
Which was which? Did the police do their investigation thoroughly?
The state was not satisfied with the way things were shaping up at the court for the trial of the accused persons.
This was why the Director of Public Prosecutions, S.H. Barkum, came to the court along with two other state counsels to announce that the state was taking over the case.
After the case was adjourned for some time, the prosecution, following the resumption of the case, told the court that it was again taking over the case from the state.
The prosecution, in one of the proceedings, informed the court that the case file was still with the AG’S Chambers for legal advice.
In another hearing, police Prosecutor Jammeh informed the court that the prosecution was going to continue with the case, and called more witnesses to testify.
Two of the accused persons were later discharged and acquitted after the prosecutor applied to the court under Section 68(1) of the CPC to withdraw the charge against them.
It seemed the state and the police prosecution were in a dilemma, as to who was capable to handle the case.
The court had witnessed the movement of the case file from the police prosecution to the Attorney General’s Chambers, and back to the police prosecution.
According to sources, there was no legal advice in the case file by the Attorney Genera’s Chambers. Is this not strange? Is this not ridiculous?
Since the case file was at the mercy of the police prosecution and the Attorney General’s Chambers, the defence team, which included lawyers Badou S.M. Conteh, Lamin Camara, Abdoulie Sissoho, Ngui Janneh, Kombeh Gaye-Coker and Hakim waited patiently to challenge the prosecution’s team.
All of a sudden, when the case was mentioned on the 1st August, 2012, before Magistrate Sheriff Tabally of the Kanifing Magistrates’ Court, the Director of Public Prosecutions, S.H. Barkum, again appeared along with state counsel, Mam Jobe, and told the court that they were representing the state.
Defence Counsel, Badou S.M. Conteh, stood up and said that he was representing all the accused persons and was also holding brief for the other defense counsels.
DPP Barkum then told the court that in exercise of powers vested in him by the constitution under Section 85(1), he was informing the court that proceedings of the case against the accused persons be discontinued. No reason was advanced for the discontinuation of the case.
Magistrate Tabally, as a result, told the court that based on the application made by the DPP, the case was struck out.
It is advisable not to start a battle that you cannot win.
What about the stigma that has been painted on the accused persons? Will they be compensated for defamation of their characters?
Earlier, a religious leader said on the TV that people who bailed the accused persons and the lawyers who were defending them would be punished by God, as well as the accused persons whom, he said, were men making love to their fellow men, which was misleading. This was not said in court.
Now that the state has discontinued the case, and that the accused persons have not been found wanting, will God punish them?
He should refrain from commenting on a case which is before a court of law. Failure to do so, he may end up in court to show cause why he should not be charged with contempt.