By Landing Ceesay
The High Court of the Gambia, presided over by Justice Ebrima Jaiteh, has granted bail to Ousainou Jarjou, a 20-year-old accused of murder. Jarjou had been held at Mile 2 Central Prison for over two years without formal charges from the Attorney General’s Office.
The case, initiated on January 8, 2024, by Jarjou’s attorney, Omar Susso, challenged the legality and constitutionality of Jarjou’s prolonged detention without trial. The legal team argued that the detention violated Jarjou’s right to a timely trial as guaranteed by the constitution and sought his immediate release and compensation of one million dalasis for the wrongful imprisonment.
The Originating Summons was supported by an affidavit of 16 paragraphs sworn on the 8th day of January 2024 by Ramatoulie Conteh, a Legal Assistant at the National Agency for Legal Aid.
Attached to the supporting affidavit are two (2) documents exhibited and marked as “OJ1” and “OJ2” respectively.
The State (Respondent) opposed the application and filed an affidavit of 8 paragraphs sworn on the 7th day of March 2024 by one Mariama Bah, a Legal clerk at the Attorney General’s Chambers.
Attached to the affidavit in opposition is one unsigned document exhibited and marked as “0J1”.
In moving the Originating Summons, Counsel O. Susso of Counsel for the applicant (Ousainou Jarjou) submitted that the application is brought pursuant to sections, 19 and 24(1) of the 1997 Constitution and sections 212(7), 212(5) & (8) of the Children’s Act 2005 and under the inherent powers of the Court.
It is the submission of Counsel Susso that his client spent over 2 years 5 months at Mile 2 Central Prison without trial is a total violation of his right to be tried within the reasonable time as envisaged under section 24 of the 1997 Constitution.
Counsel Susso argued that the State has not adduced sufficient reasons that will justify his client’s continuous detention for over two years without trial. Counsel Susso urged the Court to grant the prayers and award D 1, 000, 000.00 to his client (Ousainou Jarjou).
In responding to the arguments proffered by Counsel Susso, Counsel, F. Drammeh Counsel for the State submitted that they have filed an 8 paragraph affidavit in opposition and thus rely on all the averments in the said affidavit.
Counsel Drammeh urged theCourt to put the Applicant on bail and give chance to the Respondent to trace the case file.
Hon. Justice Jaiteh after reading the arguments of both counsels, laid down 3 issues for determination in the case.
“I have carefully read the reliefs sought on the originating Summons, its supporting affidavit with its attachments. I have also read the affidavit in opposition and keenly listened to the submission of both learned Counsel for the Applicant and the Respondent with great interest. I believe for proper determination of this Originating Summons there are three (3) issues and they are as follows:
“Whether the continuous detention of the Applicant at Mile Two Central Prison for 2 years 5 months without being tried before a competent court of law is illegal and unconstitutional? Whether the detention of the Applicant in Mile 2 Central Prison, a minor is illegal and unconstitutional? Whether this court should award compensation of One Million dalasis for the illegal detention of the Applicant in Mile 2 Central Prison for 2 years 5 months?” Hon. Justice Jaiteh said.
Justice Jaiteh further asserted that with regards to the first issue as to whether the continuous detention of the Applicant (Ousainou Jarjou) at Mile Two Central Prison for 2 years 5 months without being tried before a competent court of law is illegal and unconstitutional is the crux of the application before his court.
The Judge cited sections 19 (3)(b), (5) & (6) of the 1997 Constitution of The Gambia as reference.
“I have perused the affidavit in support: particularly paragraph 6 where the document is referred to as Exhibit “OJ1”. I have looked at Exhibit “OJ1”; it is a remand warrant of committal of the Applicant on a charge of Murder, contrary to section 187 of the Criminal Code, Cap 10, volume 3, Laws of The Gambia.
“The Applicant (Ousainou Jarjou) was arrested on the charge of Murder and was remanded in custody on the 16th day of September 2021 by the Brikama Magistrates’ Court of The Gambia and the case file was transferred to the High Court of The Gambia for trial on indictment. Therefore, the detention of the Applicant is legal and constitutional as he is accused of Murder,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh however stated that the continuous detention of Ousainou Jarjou for over 2 years 5 months without trial is unreasonable, notwithstanding that he is arrested and remanded on the charge of committing murder.
Justice Jaiteh said Ousainou Jarjou was remanded in prison custody on the 16th of September 2021 and up to date, the State Law Office has not filed a bill of indictment at the High Court of The Gambia and he is still languishing in remand.
Hon. Justice Jaiteh further cited the Gambia Court of Appeal case of case Kebba Bojang Vs the State [1994] Gambia Law Report page 341.
Hon. Justice Jaiteh asserted that in this case the delay was so inordinate as to be unacceptable in a democratic society.
Hon. Justice Jaiteh said Trial within a reasonable time is expounded in the case of CLARKE & GARRISON v ATTORNEY – GENERAL [1960-1 993] GR, page 499 deals with the principle in determining what is reasonable time.
“In our present case the Applicant (Ousainou Jarjou) was detained and is still detain in custody for over two years five months without being arraigned before the High Court of The Gambia for trial. This span of time of over 2 years five months in detention without trial cannot in my view be described as “reasonable time” as provided under section 24(1)(b) of the 1997 Constitution of The Gambia and the delay is unreasonable and unacceptable in a democratic society.
“The Respondent (State) in their affidavit in opposition averred that the State Law office has sent letters of request to the Inspector General of Police for the case file but to no avail and further averred that the Police are putting up efforts to trace the case file from their records. This is a serious administrative failure on the part of the police to have a murder case file missing and could not be traced. This is unacceptable for the case file to be missing considering that someone’s life is lost,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh therefore resolve that the detention of Ousainou Jarjou is lawful, however, his continuous detention without trial is unreasonable in a democratic society.
With regards to whether the detention of Ousainou Jarjou in Mile 2 Central Prison, a minor is illegal and unconstitutional, Hon. Justice Jaiteh said he has perused the supporting affidavit especially paragraph 8 (a) that at the time of the arrest Ousainou Jarjou was a minor in August 2021 and has exhibited his birth certificate and marked as OJ2.
” I have looked at the birth certificate of the Applicant and he was born on the 15th of May 2004. The Applicant was remanded on the 16th September 2021 and from 15th May 2004 is 17 years and therefore the Applicant is a child
under section 2 of the Children’s Act 2005 and by virtue of Section 212 (8) of the said Children’s Act, the Applicant should not have been remanded in an adult prison such as Mile Two Central Prison.
“However, the fact that the Applicant is a minor ought to have been raised by the Applicant’s parent at the time the Applicant was remanded and the Magistrate would have made the necessary order for the Applicant to be remanded at the Juvenile wing and the case file be remitted to the Children’s Court for trial,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said the burden of showing that Ousainou Jarjou was a minor is on the parents and their failure to disclose his age to the Magistrate at the material time cannot be visited on the State to be responsible.
Hon. Justice Jaiteh said he is now satisfied that Ousainou Jarjou (Applicant) at the time of the alleged murder, he was 17 years old and the proper court clothed with jurisdiction to try the alleged murder is the Children’s Court and
not the High Court.
Hon. Justice Jaiteh said the parents of Ousainou Jarjou should have raised the issue of age timeously.
“From 2004 to 2024 is 20 years and the Applicant (Ousainou Jarjou) is now over the age of 18 and is no longer a Child to be transferred to the Juvenile wing,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said with regards to the third issue as to whether his court should award compensation of One Million Dalasis for the illegal detention of Ousainou Jarjou in Mile 2 Central Prison for 2 years 5 months is an important issue worthy of consideration.
Hon. Justice Jaiteh said in view of the fact that Ousainou was remanded lawfully by a competent court of jurisdiction, he does not believe that the Ousainou should be compensated at this material time despite the continuous detention is unreasonable because he was lawfully detained.
“I have considered the past and current problems, which affect the administration of justice in the country with the view that what is “reasonable time” cannot be prescribed but must be determined from case-to-case regard being had to the circumstances of each Case.
“The court’s discretion in granting or refusing bail must be exercised at all times with due regards to the facts and circumstances of each case and having regards to the averments in the affidavit deposed to by Ramatoulie Conteh and the State is not oppose to bail be granted to the Applicant despite the alleged murder charge,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh held the strong view that, the basic conditions for granting bail have been met to warrant the granting of bail to Ousainou Jarjou.
Hon. Justice Jaiteh said taking into consideration of Section 24(3)(a) of the 1997 Constitution, an accused person is presumed innocence until proven guilty; and sections 211 and 212 of the Children’s Act 2006, he shall exercise his discretion in favour of the Applicant (Ousainou Jarjou).
“In view of the foregoing, I will grant the Applicant bail in the following terms: Bail is granted to the Applicant (Ousainou Jarju) in the Sum of D500, 000.00 (Five Hundred Thousand Dalasis); That the Applicant must provide one Gambian surety andbdepose to an affidavit of means in like sum;
“That surety shall deposit with the Principal Registrar of thebHigh Court, the original title Deeds or free hold property in respect of his/her said property, together with a valuation report on the property issued by an officer from the Lands Department or any other Government recognized Estate Valuer on a date not earlier than the date of this Order;” Hon. Justice Jaiteh ordered.
Hon. Justice Jaiteh further ordered that the Principal Registrar of the High Court shall verify, and under his or her hand, approve the title deeds and valuation reports deposited by the surety before the release of the of Ousainou Jarjou from custody.
Hon. Justice Jaiteh ordered the Director of Public Prosecution (DPP), to file formal charges against the Applicant at the Children’s Court within three months from the date of this Order.
“That the failure of the DPP to file any charge(s) against the Applicant from the date of this order, the bail of the Applicant shall elapse and be discharged from Mile 2 remand with or without surety. This Order is to be served on the DPP for compliance with the time limit in order 6 above of filing formal charge(s); and There shall be no further orders,” Hon. Justice Jaiteh ordered.