By Landing Ceesay
Magistrate Marcel L. Thomasi of the Banjul Magistrate’s Court has granted an application by Yankuba Darboe, Chairman of the Brikama Area Council, to stay the proceedings of his sedition trial. This decision is pending the outcome of his appeal at the Court of Appeal of The Gambia.
Chairman Darboe faces two criminal charges filed by the Inspector General of Police (IGP), stemming from an incident on February 10, 2021, during which he allegedly used derogatory language against President Adama Barrow and the Gambian judiciary.
Darboe was scheduled to begin his defense on September 12, 2024, after his previous application was dismissed by the High Court. However, his defense counsel, Lamin S. Camara, informed the court that a motion filed in August 2024 was still awaiting a return date.
The motion was filed by Chairman Darboe, with a 20-paragraph affidavit sworn by Isatou Ceesay, a resident of Bakoteh and pupil Barrister at Dandimayo Chambers. The IGP responded with a 13-paragraph affidavit sworn by Malang Jarju, Deputy Commissioner of Prosecutions and Legal Affairs Unit of the Gambia Police Force, opposing the motion for a stay of proceedings.
In his ruling, Magistrate Thomasi noted that paragraph 7 of the affidavit in opposition by the IGP was unreliable. He emphasized that Darboe’s appeal was properly filed and competently numbered as suit G.C.A 002/2024, signed by the Registrar of the Court. He further stated that the discretionary powers of the court allow it to grant or deny such a motion based on relevant laws and precedent.
“Paragraph 8 of the said affidavit in opposition is unfounded as this court is vested with discretionary powers to grant or not to grant in accordance with provisions, status laws or precedent. Paragraph 10 has elucidation as to how it will be unfair and a miscarriage of justice if the said prayer is granted. The court holds paragraph to be inaccurate, and that paragraph 12, which is contained in the appeal lodged at the Gambia Court of Appeal, is an embodiment of the fundamental precept of law: the right to a fair hearing,” Magistrate Thomasi ruled. Magistrate Thomasi further ruled that, while the lead prosecutor’s submission on the High Court’s supervisory jurisdiction is significant, it does not address the specific adjudicatory role of the Magistrate’s Court. Magistrate Thomasi added that issues of constitutionality and jurisdiction in this case are to be determined by the Gambia Court of Appeal, as was established in the case of The State vs. Yankuba Touray.
“The submission by the defence counsel that the record of proceedings was ordered to be produced by the accused/applicant, should be
read in line with the mischief rule. Even though the custodian of the records is the court, in both civil and criminal appeals, it is the appellant who should facilitate the production of the record by proceeding with the assistance of the court ordering the registrar to do the same.
“Whether this application was made or granted is unknown. Sections 132 and 133 of the 1997 Constitution are to be read with section 24 of the said Constitution. The ruling dated 11 July 2024 by Justice G.A Kwabeng is binding on the lower court, provided it stands alone. Notice of Appeal marked as I. C1 filed 25 July 2024 with G.C.A 002/2024 is timeously before the court of Appeal and the court does not hold it to be incompetent since it is not within its purview to do so,” he said.
Magistrate Thomasi stated that the Magistrate’s decision is currently pending a review by the High Court, whose ruling is subject to further appeal before the Gambia Court of Appeal.
He noted that if Justice G.A. Kwabeng’s High Court decision is interpreted through the mischief rule, it may yield a different outcome compared to interpretations under the golden or literal rules.
Magistrate Thomasi also emphasized that appellate courts are typically hesitant to overturn trial court decisions on matters of fact, even though they possess the authority to do so. As a result, most appeal arguments focus on potential legal errors that may have occurred during the trial.”An Appeal may be contrasted with a review, which may be the decision of the Gambia Court of Appeal, directed to the high court, which will be confined to an examination of the records of the inferior court of proceedings. Apparently, the case before this court is now ceased before the court of Appeal which is higher in hearable than the high court in order not to engage in a more academic exercise and the fact that the prosecution is not being prejudged this court is bound to await the decision of the court of Appeal emanating from the high court which emanated from the magistrate court.
“Taking into account prayer (1) which this court granted earlier to be read with grounds 1,2, and 3 of the Appeal at the Gambia Court of Appeal and the relief sought, which this court cannot anticipate the exact position the ruling will entail will not be drawn between the devil and the deep blue sea. Should the Gambia Court of Appeal be minded to grant the relief sought, there will be laid out consequential relief, and if otherwise, the consequential relief of the High Court by Justice G.A Kwabeng will be adhered to. In light of the aforementioned, this court hereby grants the order as prayed,” Magistrate Thomasi ruled. Magistrate Thomasi stated that the High Court’s ruling dated July 11, 2024, must be reviewed by the Court of Appeal for the Magistrate Court to adhere to it.
“The continuation of hearing of the I.G.P V Yankuba Darboe BMC/CC/021/2021, is hereby stayed with the same term and condition, as per the conditions of bail of the accused in respect of the sureties,” he said.
Background of the story
The prosecution has called several witnesses in this trial. At the end of their case, Chairman Yankuba Darboe and his legal team filed a motion for a no-case-to-answer submission.
This motion was rejected by the presiding Magistrate, M.L. Thomasi. Chairman Darboe appealed the decision to the High Court of The Gambia.
Dissatisfied with the dismissal of their application, Chairman Darboe and his legal team filed a motion requesting Magistrate Thomasi’s recusal from the case, but the Magistrate declined to step down.
The High Court also dismissed Chairman Darboe’s appeal.
In response, Chairman Darboe and his legal team have now taken the matter to the Court of Appeal, challenging the decisions of both the Magistrate Court and the High Court.