Lead Counsel for the Prosecution
By Landing Ceesay
The Lead Counsel for the Prosecution (State), Patrick Gomez told the court to disregard the application filed by Bubacarr (Bob) Keita’s Lawyer Lamin S. Camara to stay the execution of 7th July ruling for a DNA test.
“The court should disregard the application filed by the defence and this court should not set aside its 7th July, 2022 on the grounds that the ruling was lawfully delivered,” he argued.
Senior State Counsel Gomez said several paragraphs of the applicant (the defence) affidavit in support of the application violate the provisions of the Evidence Act and that the court should not set aside the 7th July ruling because it would be a great waste of the court’s time.
Counsel Gomez said staying of execution of the 7thJuly ruling is not known to law and would further delay the trial which has already been delayed due to the action of the applicant (Defence).
“In addressing the issue of the affidavit, it is surprising that the defence will raise that Mariama Bah, a legal clerk sworn to an affidavit on behalf of Bob Keita, the applicant (defence) and therefore, the court should disregard the affidavit.
“The law is very clear on the technicality raised in this circumstance. The courts are now more akin to substantial justice and the substance of the case is the guilt or innocence of the accused person. The mistake is just a mere technical error,” he argued.
Counsel Gomez said Paragraphs 8,9,10,11 in the affidavit by the defence in support of the motion as demonstrated by the accused person himself do not indicate how he got the information contrary to section 89 of the Evidence Act.
The Senior State Counsel told the court that there is no way the deponent (Bob Keita) would contain knowledge of the said statement and that the court could take judicial notice that the deponent is still in confinement.
“We have equally denied the said paragraph in an affidavit in opposition. We refer this court to paragraph 7 of the affidavit in opposition. Paragraph 12 of the affidavit in support of the motion violates Section 90 of the Evidence Act. The said law prohibits any affidavit from containing any legal argument or conclusion,” he said.
Counsel Gomez said it is a legal argument, not factual, and Bob Keita wouldn’t have known the legal argument requirements because he is not a lawyer; and added that this kind of argument can only be made at the time of the address, where one can raise a legal argument, not at this stage.
Gomez said Paragraph 13 of the affidavit in support of the motion is equally a legal argument, and the court should not rely on the said paragraph and that the same thing applies to paragraph 14; and said paragraph 13 raises issues of objection, which violates Section 90 of the Evidence Act.
“The same applies to paragraphs 17, 18, 19, 20, 21, 22, 23, all the way to 33 are entirely containing legal arguments or objections, contrary to the Evidence Act,” he said.
Reacting to the argument by the defence that the State is wasting the court’s time; Counsel Gomez said what the defence would not tell the court is how they (defence) constantly refused to accept their (State) request for DNA test.
Gomez said the evidence of their requests are the letters they have written to the defence in respect to the privacy of the accused person (Bob Keita).
He said the first letter they wrote to the defence counsel is dated 29th April 2021 signed by Senior State Counsel Alasan Jobe and the second letter they wrote is dated 14th June 2021 making a follow up to the request of DNA.
The Counsel then read to the defence, the letter dated 29th April 2021 requesting a DNA examination.
“Looking at the averment of the affidavit in opposition more particularly these two letters. The State diligently wrote to the defence at a time only two witnesses were called by the State as opposed to now, when the State has called eight (8) witnesses.
“Had defence accepted our request to conduct DNA at the earlier appointment, the case would have been done this time. To make matters worse, the State made a formal application for a DNA examination in 2021, applied as motion on 16thDecember 2021 for the Court to grant the State to conduct a DNA test,” the state counsel argued.
He said, if the Court has the power to set aside its order, the grounds or the powers as to why the court should set aside its order are very clear; and said if a party is said to have not complied with an order, the very legal principle is that courts do not make orders in a vacuum and the only logical conclusion is that, same party should comply with the order.
Counsel Gomez said when the court made the order, the State clearly started executing the order and that it is common knowledge that the DNA sample of baby Muhammad, which the defence alleged that they did not or at its best was not done in their presence was in Dakar because of complications.
Gomez said the defence failed to outline as to whether the Court had the jurisdiction to obtain the order or whether the order was given by “fraudulent means” or whether the court made “procedural errors”.
He said it is their submission that the order was made without error, without fraud and the court has the jurisdiction to obtain similar orders.
“The question that should be asked is – whether this court can set aside its order in a criminal trial? We answered that this application is best suited for a civil case. The trial of this nature must come to an end, application in this nature will only waste the court’s time in arriving at a just determination, speedy and a fair trial as enshrined in the 1994 Constitution,” he said.
Case Background
Bob Keita is currently facing a single charge of rape after being accused of raping his ex-wife’s younger sister who was said to be a minor at the time and resulted in pregnancy. The case has been going on at the High Court of the Gambia for more than 2 years now.
In May 2022, the State Prosecutors filed a notice of motion for the High Court to grant an order for a DNA test between Bob Keita (Accused Person) and the child of his alleged victim.
Justice Momodou S.M. Jallow on 7th July 2022, gave an order for a DNA test to be conducted and the blood samples of Bob Keita, the child of his alleged victim and the alleged victim’s boyfriend be taken.
The State Prosecutor, Kimbeng Tah, told the Court that the child was in Coma at a private clinic in Dakar, Senegal.
On the 10 of Jul 2022, news emerged on social media that the child passed away on Friday 8th July 2022.
On 13 of July, State Prosecutor Kimbeng Tah, confirmed the death of the child to the court, but informed the Court that the blood samples of the child were taken before his demise in Dakar.
On the same day, despite his lawyer questioning the credibility and transparency of the blood samples allegedly taken from the child before his death, Justice Momodou S.M. Jallow ordered Bob Keita to be transported to the Edward Francis Small Teaching Hospital (EFSTH) for his blood samples to be taken. Then, it was reported that the blood samples of Bob and his alleged victim’s boyfriend were taken.
On the 18 July 2022, Bob Keita’s Lawyer Lamin S. Camara filed a notice of motion of staying the execution of the order of 7th July 2022, pending the hearing and determination of the appeal at the Court of the Appeal of the Gambia.
The case is adjourned to Wednesday for the ruling on the notice of motion for staying the execution of the order of 7th July 2022 and continuation.
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