The Easter vacation judge, Justice Awa Bah-Jammeh of the High Court in Banjul yesterday, 18th April 2012 granted bail to one Awa Saye- Touray, a former store keeper at the Ministry of Agriculture, in the sum of D10 Million, with two sureties with landed properties either in the Greater Banjul Area or in the West Coast Region. The sureties must deposit their title deeds with the registrar of the High Court.

Justice Awa Bah however ordered that the applicant, Awa Saye Touray deposit all her travelling documents with the Registrar of the High Court.Meanwhile, Justice Awa Bah refused to grant bail to the former officials at the Ministry of Agriculture: Alhaji Bakary Trawally, Momodou Mbye Jabang, Momodou Lamin Ceesay (a local businessman), Kekoi Kuyateh, Dr. Amadou Sowe and Dr. Mustapha Ceesay.

The judge’s decision came following a ruling she delivered yesterday in the matter of an application for bail under Section 19 of the Constitution and Section 99(1) of the Criminal Procedure Code. In moving her motion on behalf of her client, applicant’s counsel Ida Drammeh told the court that her application for bail on behalf of Awa Saye- Touray was supported by 16 paragraphs and she relied on all the paragraphs in the said affidavit.

Lawyer Ida Drammeh referred the court to the averments in the affidavit and supportive medical documents attached to the application and pointed out that the applicant Awa Saye- Touray has serious illness and have been in and out of the hospital for the past several years. Lawyer Ida Drammeh argued that the applicant’s family is very concerned that the applicant may have lost her sight due to the damage orchestrated by her confinement. She noted that the applicant have been treated for blood pressure and other related illness for the past years, as contained in some documents attached to the said motion filed.

The applicant’s counsel recalled that it was the Banjul Magistrates’ Court that remanded the applicant on the 22nd March 2012 and she had been in custody since then. She argued that her continuous detention poses a serious health risk to the applicant who had been in and out of the hospital for the past years.

Lawyer Drammeh pointed out that the applicant was only a store keeper and was not a scientist, and was merely doing what she was instructed to do by her seniors. She submitted that even the most serious offence under the economic crime in the Specified Offences Act is bailable. She referred the court to Sections 6 and 8 of the Specified Offences Act, Section 19 of the 1997 Constitution and Section 24(3) of the same 1997 Constitution.

She invited the court to uphold the right given (guaranteed) to all persons living in The Gambia and cited some number of authorities including a Privy Council case of Adam Raschid Khoyaratti, delivered in March 2006 in the Republic of Mauritius; another case of the former chief justice of The Gambia, Chief Justice Ayoola on issues relating to special circumstances. Lawyer Drammeh submitted that having regards to the constitution, the rules governing the criminal code and the special circumstances, she urged the court to release the applicant on bail, adding that the applicant and her husband, Gumbo Touray would respect all her bail conditions.

Moving his motion in support of the application for bail on behalf of the six ex-Agric officials, Lead Counsel Lamin S. Camara informed the court that the motion before the court, dated the 8th April 2012 was seeking two prayers: That the applicants be released on bail and any further order that the court may deem fit.

Lamin S. Camara disclosed that the motion was supported by a 27-paragraph affidavit sworn to by Kebba Sanyang, adding that the applicants rely on all the paragraphs in the affidavit in support of the motion, particularly from paragraphs 4 to 27. He further disclosed that there is also an affidavit in reply filed on the 16th April 2012, containing 13 paragraphs, also sworn to by the same Kebba Sanyang. The said application, he submitted was filed pursuant to Section 99(1) of the CPC, and that the said Section empowers the High Court judge to grant bail for all bailable offences.

Lawyer Camara argued that the charge preferred against the applicants, even though filed before the Banjul Magistrates’ Court are all bailable. He further argued that none of the alleged offences contained in the charge sheet is punishable for life or by sentence to death. He referred the court to paragraph 4 of the affidavit in support of the motion, noting that the applicants were charged with four counts of negligence of duty, economic crimes, stealing amongst others.

L.S Camara submitted that they have also been arraigned before the Banjul Magistrates’ Court on the 22nd March 2012. He pointed out that paragraph 9 of the said affidavit disclosed that the applicants have since been detained at Mile Two Prisons since the 22nd March 2012.

Camara went on to submit that since the 22nd March 2012, no formal indictments have since been preferred against the applicant at the High Court, adding that it is four weeks yesterday that the applicant were remanded in custody. Camara submitted that cogent and convincing grounds have been advanced in the affidavit in support of the motion to warrant the said court to exercise its discretion in favour of the applicants.

Lawyer Camara argued that all the applicants are responsible members of the Gambia society as deposed to in paragraph 14 of the said applicants’ affidavit. He submitted that none of the applicants would jump bail or interfere with the investigations when granted bail, adding that the investigations have long been concluded or wound up, given that they have appeared before the Commission and were even put on bail by the said Commission of Inquiry.

Lawyer Camara further submitted that none of the applicants have any past criminal record; but they are of impeccable characters. Having regards to the antecedent of the applicants and the averment in support of the bail application or motion, the lawyer urged the court to grant bail to the applicants.

Lawyer Camara told the court that the averments in the affidavit in opposition filed by the state contained mere denials and facts that have not in anyway been substantiated, but facts meant to overreach the court. Camara cited paragraphs 3b and 3c of the state affidavit in opposition, and after reading the said paragraphs, he argued that the said fertilizers were pre-financed, and that nothing was spent by the Gambia government.

Lawyer Camara pointed out that the rest of the averments are as usual; reasons advanced for denial of bail, like jumping of bail, the applicants tempering or interfering with investigations, adding that thesad averments are too weak. He cited several authorities which hinge on granting of bail and referred the court to the Archold Criminal Pleadings and Evidence in Volume One, Page 306, 1992; the case of Adama Sulayman and others Versus the Commissioner of Police, Plateau State, Nigeria Criminal Case, Volume One, Page 334, 336, 227 and 338, and pointed out that the said offence alleged to have been committed by the applicants are just ministerial, but bail was vital.

The lawyer then urged the court to take cognizance of the fact that bail is solely at its own discretion and for the court to respectfully exercise that discretion in favour of the applicants. Lawyer Camara argued that the applicants are only asking for liberty, a pretrial freedom on condition. He cited Section 19 and Section 24 sub 3A of the Constitution and submitted that these Sections hinge on fundamental right and presumption of innocence of accused persons.

The defence lawyer finally submitted that the court has all the powers to grant bail to the applicants under the constitution, under the economic crime Specified Offence Act, under which they are charged and under the criminal procedure code which governs the criminal procedures.

In his reply to the submissions made by the counsel for the applicants, theDeputy Director of Public Prosecution (DDPP), S.H Barkun told the court that the state filed a counter-affidavit, dated 12th April 2012, in respect of the five ex-Agric officials and the businessman, Momodou Lamin Ceesay, but did not file anything in respect of Awa Saye Touray, the ex-store keeper at the Ministry of Agriculture.

Barkun submitted that bail is a matter of discretion of the court, adding that with or without counter-affidavit, with or without any objection from the state or respondent, the court can exercise its discretion. He cited a lot of cases and submitted that the discretion by the court should be exercised judicially and judiciously, taking into consideration the circumstances of the case.

He argued that the discretion of the court is paramount, noting that the applicants have the primary burden to discharge its onus and it is after that is done, that it would be shifted to the state to give reasons why bail should not be granted. He further argued that the applicants have to express sufficient material to warrant the granting of bail, adding that if the materials are not sufficient, the court has the discretion to refuse the applicants’ bail.

DDPP Barkun submitted that paragraphs 7 and 8 of the affidavit in support of motion filed by the applicants are contradictory to paragraph 6 of the said affidavit, adding these paragraphs touch on the issue of pre-finance. He argued that paragraphs 6 and 7 amount to bringing an appeal before the said High Court. DDPP Barkun finally submitted that having regards to the circumstances of the case, the court should appreciate the position of the state. He then urged the court to exercise its discretion in granting bail to the applicants.

In her ruling, Justice Awa Bah-Jammeh disclosed that she concurred that bail is at the discretion of the court as submitted by both sides. She further disclosed that she also concurred with both sides in their submissions that some guiding principles must be taken into consideration in granting bail.

The Judge revealed that the applicants are charged with four counts and of which the said offences are bailable. She cited plethora of cases and noted that the applicants are expected to give cogent reasons for seeking bail. She then remarked that the charge against the applicants is a serious case, considering the nature and gravity of the offence in the larger society has led her to conclude that the granting of bail is at the discretion of the court.

The judge therefore revealed that the whole processes revolve around the judicial discretion to grant or not to grant bail. Justice Awa Bah-Jammeh held that Awa Saye Touray be granted bail in the sum of D10 Million with two Gambian sureties, with landed properties in the Greater Banjul Area or in the West Coast Region. The bail application filed by the other six applicants were accordingly refused.