By Landing Ceesay
The manslaughter case involving Sainabou Mbye, and two others has been adjourned to 27th October 2022, after heated arguments over the adjournment application filed by the Prosecution.
The State filed an application for the court to grant them an adjournment as they are facing constraints of bringing their witness who is supposed to be Prosecution Witness Eight (PW8).
In his deliberation, Counsel A.M Yusuf, appearing for the state said a medical doctor, who conducted the postmortem examination on baby Muhammad who should be their last witness for the prosecution is out of the jurisdiction because he resides in Senegal.
Counsel Yusuf told the Court that through diplomatic channels, all hands are on deck to get the said doctor available for testimony; and that they are aware that the accused have been in custody for long and that their application might cause them inconvenience.
However, he informed the court that the evidence of the Medical Doctor would greatly assist the court to arrive at a just determination in the case.
In his argument, Counsel Yusuf told the court that their ability to bring in 7 witnesses to testify within two weeks, shows the prosecution’s seriousness about the case.
In response to the State Counsel’s arguments, Ida Drammeh, the lawyer representing Sainabou Mbye (1st accused) said ‘it is an abuse of process for the prosecution to bring the application this morning’.
Counsel Drammeh argued that last Friday, the prosecution filed an application for an adjournment to this morning (Monday), to bring their last witness, and that the Prosecution made it clear to the court that, that would be their last witness and that the said witness would come from Africmed.
She further argued that they (Defence) objected to the application for the adjournment last Friday and the court granted the application reluctantly.
“A document was said to be tendered today (Monday) by the Prosecution and the case was supposed to be closed,” she told the court.
Counsel Drammeh said the accused persons have been in custody since July this year; and that the prosecution has ample time to file all their witnesses and get them prepared.
She argued that although there is a presumption of innocence in accordance with the 1997 Constitution, bail application for the accused persons was always objected to.
She said the court is being invited to do something about granting prosecution’s application, which she considered illegal.
Counsel Drammeh referred the court to Section 234 of the Criminal Procedure Code, which stated that a summary of the Prosecution witnesses at the High Court must be filed; and that the Prosecution did not give them the name of the witness coming from Senegal.
She said the Prosecution is calling witnesses that are not filed, and argued that the Prosecution cannot call any further witnesses to testify because they have not filed any further witnesses.
Counsel Drammeh said the prosecution’s application is not in the best interest of justice, and that it would be a ‘travesty of justice’ for the court to grant the prosecution another adjournment.
“This case is supposed to close, and I urge you to refuse the application,” she said.
Counsel C. Gaye, the lawyer representing the 2nd and 3rd accused, told the court that she aligned herself completely with the submission of Counsel Drammeh; and urged the court to refuse the application.
“The witness’ identity is not new to the eyes of the prosecution. I submit that the prosecution must have known that they would need this witness. So, they should have brought his name; but there is nothing to serve us. We all came here prepared to receive the last witness who was supposed to come and tender the referral note. It was for that reason we adjourned to today,” she told the court.
In response to the defence counsels’ arguments, Counsel Yusuf said the law gives them prerogative powers to close their case anytime they are ready as the prosecution.
Counsel Yusuf argued that the defence counsel Ida Drammeh misconstrued section 234 of the Criminal Procedure Code; and that section 234 of the Criminal Procedure Code is talking about when the prosecution brought their witness, and the witness is already in the box without serving the defence.
He said in this case, the witness is not in the witness box, but calling the witness to come and testify.
Meanwhile, Justice Ebrima Jaiteh agrees with Counsel Drammeh’s submission that the prosecution has ample time to gather all their witnesses without delay.
However, Justice Jaiteh said for a fair and just trial, he would grant the Prosecution’s application and then granted them adjournment for the very last time.
Justice Jaiteh said the case would start at 10am and finish at 4pm 27th October 2022 since the witness would come from Senegal.
The ex-wife of Bob Keita, Sainabou Mbye (1st accused), Cherno Mbye (2nd accused), and Kibili Dambelly (3rd accused) 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 3rd July 2022, at Kanifing and diverse places in The Gambia, by unlawful act, or omission, amounting to culpable negligence, left a two-year-old boy resident of Brusubi inside a car, which caused his death, thereby committed an offence.
Counsel AM. Yusuf is representing the State; I. Drammeh is representing the 1st accused; and C. Gaye and Miss Twum are representing the 2nd and 3rd accused persons in the trial.