Private Prosecution, is a prosecution mechanism, that can be utilized by a former male accused, who has been wrongfully accused of having allegedly committed a Crime, when in actual fact, he never committed such a Crime.
A good example, is the Crime of “Rape”, contrary to Section 121 of The Gambia’s Criminal Code Act, which was single – handedly drafted by my late beloved Paternal Grand Uncle, the late Honourable Mr. Wilfred Davidson Carrol (B.A. Oxford, B.C.L. Oxford, M.A. Oxford, B.L. U.K.), who was the second Gambian Oxford University – Trained Lawyer, who was an Honourable Member of Gambia’s Legislative Council during the Colonial Era (the equivalent of today’s Parliament or National Assembly). He drafted the Bill of the aforesaid Code in 1931, which was hotly debated upon and later passed by Honourable Members of the said Council, and it later metamorphosed as an Act or Statute in 1934, when His Excellency Mr. Arthur Richards, the then British Colonial Governor in Gambia, assented to it. This same Code, is still being used today, by Gambian and Non-Gambian Judges, Magistrates, Lawyers and other members of The Legal Fraternity, MUTATIS MUTANDIS (Latin i.e. with the necessary changes or amendments).
Sometimes a woman or a girl, may accuse a man or a boy of allegedly raping her, and she would narrate “a cock and bull story” (i.e an incredible story) to this effect, to the Police, Friends and Relatives, just to put the male accused in legal trouble, or to “BLACKMAIL” him.“BLACKMAIL” means:-“MAKING UNWARRANTED DEMANDS WITH MENACES”, which is also another Chargeable Offence under the aforesaid Code. In the Wednesday 10th June 2015 Publication of The Point Newspaper, one Ms. Halimatou Ceesay, wrote an Article entitled “S.C.C. FREES RAPE SUSPECT FOR LACK OF EVIDENCE”. The first paragraph of this Article reads:- “The Special Criminal Court in Banjul, presided over by Justice Amadi, Monday freed one Yusupha Jarjue, accused of raping a four– year-old, for lack of evidence, particularly a D.N.A. test to confirm, that the sperm found on the victim was from the accused person”. The laconic phrase “accused person”, is highly tautological because “an accused” means, a person who has been charged with a Criminal Offence(s).
AGES OF PEOPLE WHO CANNOT/CAN HAVE CRIMINAL LIABILITY:-An “INFANT” is a young person or a child, who is under 18 years of age. The Children’s Act (2005) defines “A CHILD” as“….a person below the age of 18 years, unless the relevant Laws recognize an earlier age or majority in some cases”.
(1) INFANT UNDER 10 YEARS:- These infants / children are said to be “DOLI INCAPAX” (Latin ie incapable of committing a Crime). But Section 12 (1) of The Criminal Code, Cap 10:01 (1934), as amended by The Revised Laws Of The Gambia 2009 says:- “a person under the age of 7 years, is not Criminally responsible for an act or omission”. The “DOLI INCAPAX” defence, is only applicable to infants / children, who are 7 years of age and above. For infants / children, who are above 7 years of age, they can be tried in The Children’s Court in Kanifing, and if they are found guilty as Charged, they will be taken into custody at The Juvenile Rehabilitation Centre in Old Jeshwang in the K.S.M.D., where they will serve their sentences/punishments. When they attain 18 years of age, they have still not finished serving their sentences, they will then be transferred to an Adult Prison (e.g Banjul Central Prison) at Mile 2, in The Capital of The Gambia. From this time onwards, they would be regarded as Convicted Criminals with Criminal Records, unless:- (a) if they appeal against their convictions, to a superior Court in The Gambian Courts hierarchy, and this appellate Court decides to squash their convictions, or alternatively, (b) if they are granted a Presidential Pardon, by His Excellency Sheikh Professor Alhajie DR. Yahya A.J.J. Jammeh (G.M.R.G.), (Babili Mansa), by evoking the Executive Power vested in him to do so, by Section 82 of The Gambia’s 1997 Constitution, which is called “PREROGATIVE OF MERCY”. Ms. Nyima Samateh, L.L.B. (Hons.), B.L., who is presently an in –house Legal Counsel at The Standard Chartered Bank (The Gambia) Ltd, who was one of my L.L.B. Undergraduate Law Students, at The Faculty Of Law Of The University Of The Gambia (ie The Pioneer L.L.B. Class), was a onetime Chairperson of The Children’s Court in Kanifing.
(2) INFANTS / CHILDREN OVER 9 AND UNDER 14 YEARS:- This category can only have Criminal Liability, if The Prosecution proves, beyond all reasonable doubt, that at the time he/she was allegedly committing the Crime, he/she had “mischievous discretion”, (ie According to J.A. (A MINOR Vs RUNECKLES (1984),“it is not necessary to prove that the child knew that the act was morally wrong, he must know that it is “seriously” wrong, in the sense that it is not merely naughty or mischievous”.
(3) CHILDREN/INFANTS OVER 14 YEARS:- A child/infant over 14 years, is presumed to be “…. responsible for his actions entirely as if he were forty ….”, as Honourable Mr. Justice Erie stated in the U.K. Criminal Law Case, R.Vs SMITH (1845 1 COX CC 260). For Children / Infants in this category, The Prosecution only needs to prove the usual “Mens Rea”(Latin ie guilty mind), required in the case of an adult accused.
Having due cognizance of what is stated above/supra, if a Complainant in an alleged rape case is above 14 years of age, and she told the Police etc, that a boy/man has raped her, when in actual fact, this never happened, if she is found to be telling a lie on the accused, the former accused can inter earlier (Latin ie among other things), embark on a Private Prosecution as a legal remedy, for the heinous Offence of “GIVING FALSE INFORMATION TO A PUBLIC OFFICER/SERVANT”, contrary to the aforesaid Criminal Code.
UNDER-AGED GIRLS IN MARRIAGE:-An under-aged girl (ie a girl under 18 years), who is a party to a marriage with an adult man, cannot generally have Criminal liability for this, except if she had consented to this. In almost all of these Cases, their opinions were never sought, and they were forced into such marriages by either their biological parents, or people acting IN LOCO PARENTIS (Latin ie in place of parents). Such under –aged female spouses, would therefore have the Legal Defence of “DURESS”, which when successfully pleaded in a Court Of Law, would absolve them of all Criminal Liability. The controversial Legal issue of under –aged girls in marriage, is by no means, a straight forward Legal matter. On the one hand, it can be argued, that it is endorsed by Section 7 (d) of The Gambia’s 1997 Constitution, which recognizes “CUSTOMARY LAW”, as part of Gambian Laws. On the other hand, it may be argued, that such marriages are unconstitutional, because Section 27 (1) of the aforesaid Constitution says:-“Men and Women of full age and capacity, shall have the right to marry and found a family”. Here the Constitution is clearly talking about adults having the fundamental “right to marry”. This clearly excludes children. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (Latin ie what has been expressly mentioned, excludes what has not been expressed). These two conflicting Constitutional provisions, should therefore be urgently referred to The Gambia Supreme Court, in pursuance of Section 127(1) (a) of the aforesaid Constitution, which says:-“The Supreme Court shall have an exclusive original Jurisdiction – – (a) for the interpretation or enforcement of any provision of this Constitution other than any provision of Sections 18 to 33 or Section 36(5), (which relates to fundamental Human Rights and Freedoms”. I strongly believe, that whenever this is done, hopefully in the not too distant future, the majority of Learned Judges at the aforesaid apex or zenith Court of The Gambia, would support the legal view, for the abolition of Child Marriage in The Gambia, because the preponderance of evidence, clearly suggest, that this type of primitive and unjust marriage, “is not in the best interest of The Gambian Child”.
WHO IS “A PROSECUTOR”?:- “A Prosecutor” is a person who stands in a Court of competent jurisdiction, and produces evidence, to prove beyond all reasonable doubt, that the accused has in fact committed the Offence(s), which has /have been preferred against him/her in The Charge Sheet, of the Criminal Case. After having fully discharged this Professional duty, the Presiding Judge / Magistrate, would find the accused “guilty as Charged”, otherwise the accused may be found “not guilty as Charged”, and the Judge/Magistrate, may either “acquit” or “acquit and discharge” the accused. The former means that, the accused can be re-arrested by the Police, when fresh evidence is obtained concerning him/her, but in the case of the latter Judicial pronouncement, the Police would be unable to do so, and the accused is free forever, concerning that particular Charge/Offence. This is called “ESTOPPEL BY JUDGEMENT” in The Law Of Evidence.
THREE TYPES OF PROSECUTORS:-There are two types of Prosecutors namely:- (1) PUBLIC PROSECUTORS and (2) PRIVATE PROSECUTORS. There are two types of PUBLIC PROSECUTORS namely:- (a) Public Prosecutors in the Attorney General’s Chambers & Ministry of Justice and (b) Public Prosecutors in The Gambia Police Force (G.P.F.). The third type of Prosecutor, is called “A Private Prosecutor”, who prosecutes an accused, by utilizing a prosecution mechanism known as “A Private Prosecution”.
“A PRIVATE PROSECUTION”:- is defined by Sections 85 (5) (AtoC) of the aforesaid Constitution which read thus:-
“In this Section, “Private Prosecution” means a Prosecution instituted by any person or authority other than—
(a) The Director Of Public Prosecutions or any person acting under his or her direction or control;
(b) A Police Office in the exercise of the functions of his or her Office, or;
(c) An Officer in the Public Service in the exercise of the functions of his Office”.
The Proviso of Section 85(1) of the aforesaid Constitution, limits Official Prosecuting powers of the Director of Public Prosecutions vis-à-vis Private Prosecutions, and it reads:- “Provided that The Director of Public Prosecutions shall not- –
(1) Take over and continue any Private Prosecution without the consent of the Private Prosecutor and the Court, or
(2) Discontinue any Private Prosecution without the consent of the Private Prosecutor”.
Section 86 of the aforesaid Constitution says:-“An Act of the National Assembly may make provision for Private Prosecutions”. Since such an Act, has not yet been promulgated, the former accused can alternatively use Section 7 (d) of the aforesaid Constitution, to bring a Criminal Action, by way of A Private Prosecution, against the fake female Complainant, provided that she is at least seven years and above, since Section 12 (1) of the Criminal Code says :- “a person under the age of 7 years, is not Criminally responsible for an act or omission”. Section 7(d) of the aforesaid Constitution says:-“In addition to this Constitution, The Laws Of The Gambia consist of ….. the Common Law and principles of equity.”A Private Prosecution, is a Common Law Practice, and no “FIAT” is legally required to be obtained from the Honourable Attorney General & Minister of Justice, before this type of Prosecution, can be instituted. This is confirmed by Arch bold – 1997 Edition, (Criminal Pleading, Evidence And Practice) – an authoritative U.K. Criminal Law Book.
WHO IS “A PERSECUTOR”?:-The Oxford Advanced Learner’s Dictionary, by A.S. Horndy, authoritatively defines “PERSECUTE” thus :- “…..(1) punish, treat cruelly, especially because of religious beliefs, (2) allow no peace, to worry”. “A PERSECUTOR” therefore, is a person who “persecutes”. A classic example of “Persecution” in human history, was “THE NUMEROUS PERSECUTION OF THE JEWS”.
SHOULD “A PROSECUTOR” BE “A PERSECUTOR”?:- One of the compulsory Legal Modules, for the Barrister –At- Law (B.L.) Course at The Gambia Law School, is Legal Ethics, and the able Senior Law Lecturer for this Course, is the Honourable Justice Mama Fatima Singateh, the incumbent Honourable Attorney General & Minister Of Justice. According to the aforesaid Course / Module, a Lawyer, (be it a Prosecutor or a Defence Counsel in a Criminal Case, or be it a Lawyer for the Plaintiff or the Defendant in a Civil Case etc), has three ethical Professional duties namely:- (1) DUTY TO THE COURT, (2) DUTY TO THE CLIENT(S) AND (3) DUTY TO THE PUBLIC. The first duty above, is indeed “PRIMUS INTER PARES”(Latin ie the first among equals), and it takes precedence over the two aforesaid duties, hence the existence of serious Criminal Offences pertaining to The Judiciary, such as:- (1) PERJURY (ie making a false statement after taking an oath), (2) CONTEMPT OF COURT (ie treating the Court rudely or with disrespect), (3) CONSPIRACY TO PERVERT THE COURSE OF JUSTICE (ie an agreement between two or more people, to engage in an illegal activity , that is intended to mislead the Court, so that it will end up giving a Judgment, that will result in “a miscarriage or travesty of Justice”) etc. It is therefore, Legally unethical for any Prosecutor, to simultaneously be a Persecutor also. If a Prosecutor knows of any good legal point, that would assist the Presiding Judge / Magistrate in the administration of Justice, and he /she refuses to disclose this to the Court, when this Legal point comes to light subsequently during the legal proceedings in that particular Case, the Presiding Judge / Magistrate may refer this matter to The General Legal Council (whose Chairman is the Honourable Lord Chief Justice, and whose Deputy Chairperson, is the Honourable Attorney General & Minister Of Justice-M.O.J.), for him / her to be appropriately disciplined, of course bearing in mind, the Judicial duty, “….to temper Justice with mercy”.
To be continued
by Dr. Henry D.R.. Carrol (M.R.G.).
Phd Honoris Causa (Laws) U.K., Phd Honoris Causa (Philosophy). U.S.A.
Honorary Doctorate Of Letters (Cambridge) U.K.
The Chairman Of:-
The Gambia Law Reform Commission & Founder Senior Law Lecturer,
The University Of The Gambia (U.T.G.)