PRIVATE PROSECUTION (Part II) (A Prosecution Mechanism And Legal Mechanism For Women’s Rights Protection)

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    In 2005, when I was the Registrar of Companies  and Deeds, at the Ministry of Justice, Mr. Emmanuel Akomaye Agim (O.R.G.),who by then was The Director Of Public Prosecutions (D.P.P.) at the M.O.J. ( who later became The Honourable Lord Chief Justice Of The Gambia), Mrs. Naceesay Salla – Wadda, who by then was a Principal State Counsel at the M.O.J. (and she is now a Judge at The Gambia Court Of Appeal and the present Chairperson of The National Council For Law Reporting- N.C.L.R., of which I am a Statutory Member) and my humble self, researched and co-authored “PRE-TRIAL CRIMINAL PROCESS IN COMMONWEALTH WEST AFRICA- – – THE GAMBIA EXPERIENCE”.

    Both Undergraduate L.L.B. Students at The Faculty Of Law Of The University Of The Gambia (U.T.G.) and B.L. Students at The Gambia Law School, are finding this Law Book very useful for their studies, and it will eventually help them to be good Public Prosecutors only, instead of being Public Prosecutors and simultaneously Public Persecutors.

    The incumbent Nigerian –born Honourable Lord Chief Justice Of The Gambia, Honourable DR. Justice Emmanuel Fagbenle, during the period from 8th January 2007 to 28th April 2009, when I was The Solicitor General & Legal Secretary (ie The Deputy Chief Legal Adviser Of The Gambia Government), was the able Director Of Public Prosecutions (D.P.P.), at The Attorney General’s Chambers & Ministry Of Justice. He was an excellent D.P.P. only, he was not a Director Of Public Prosecutions and “a Director Of Public Persecutions” simultaneously, and he was a good role model, for different types of Prosecutors in The Gambia.

    In the year 2000, when I was a Senior State Counsel at The Attorney General’s Chambers & Ministry Of Justice, I was the only Public Prosecutor, who Prosecuted the accused persons in the leading Gambian Environmental/Criminal Law Case entitled:- THE STATE Vs CAPTAIN NORMAN HEPBURN & OTHERS, after I had just returned home with a Master Of Laws (L.L.M.) Degree in Environmental Law & Management, from The University Of Wales (Aberystwyth) U.K. In this Criminal Case, M.V. JONAS was registered in Gibraltar in Europe, it was flying the Gibraltar Flag. It was towed into Gambian Territorial Waters, on 23rd January 2000 by M.V. DALI (another boat/vessel), purportedly for repairs. Upon having solid evidence, that these foreign boats/vessels, were not exercising “the right of innocent passage” through The Gambia’s Territorial Waters The Gambia Navy pursued them and arrested them (ie“the right to hot pursuit” in Public International Law). M.V. JONAS was given 28 days by The Gambia Ports Authority (G.P.A.), to fully execute repairs to it’s engine and to depart from The Gambia’s Territorial Waters forthwith thereafter, and M.V. DALI was allowed to leave 3 weeks later. A large quantity of fuel was found in M.V. JONAS ,which was allegedly siphoned to a Gambian registered boat/vessel (M.V. COOMA) and later allegedly sold in the black market by The Captain and Crew of M.V. COOMA. Although laboratory analysis could not positively establish or refute the heinous allegation, that M.V. JONAS contain any toxic waste, it was however crystal clear, that “these trading boats/vessels were in Gambian Waters in very dubious circumstances”. The State accordingly decided to press these Charges against these Co-Accused Persons:-

    COUNT 1:- FOR ALLEDGELY DUMPING TOXIC WASTE IN GAMBIAN WATERS,

    COUNT 2:- FOR BRIBERRY AND CORRUPTION,

    COUNT 3:- FOR SMUGGLING CIGARETTES AND FUEL INTO THE GAMBIA,

    COUNT 4:- ILLEGAL RESIDENCE IN THE GAMBIA and

    COUNT 5:- ECONOMIC CRIMES.

    As a Senior Environmental Lawyer & Consultant, and as then, a Senior State Counsel at the Ministry Of Justice, I was Officially authorized by the then Director Of Public Prosecutions, at The Ministry Of Justice, to single handedly Prosecute these Co-Accused Persons in a Gambian Court. However, luckily for them, half way through the Prosecution, the Criminal Trial was aborted, because His Excellency The President Of The Republic Gambia, Sheikh Professor Alhaji DR Yahya A.J.J. Jammeh (G.M.R.G.), (now Babili Mansa), in his wisdom decided “to temper Justice with mercy”, and he issued a Presidential Directive for the Criminal Case to be stopped. I had to go to The Gambian Court, as The Prosecutor, to file a NOLLE PROSEQUI (Latin ie stop Prosecution). I was only a Prosecutor, and not a Persecutor also, in this Criminal Case.

    According to Section 27 of the aforesaid Code, these are the following punishments / sentences, which a Presiding Judge / Magistrate may pass on a Convict:- (1) Death Penalty (2) Imprisonment, (3) Corporal Punishment, (4) Fine, (5) Payment of Costs, (6) Payment of compensation, (7) Finding security to keep the peace and be of good behaviour, or to come up for Judgment (ie“ A DEFERRED OR SUSPENDED SENTENCE”)and (8) Forfeiture.

    It is my humble Legal Opinion, that Corporal Punishment is the most appropriate sentence/punishment for a Child Convict. “Suffer little children, to come unto me”, as Jesus Christ says in The Holy Bible. As a Canadian – Trained Theologian, I concur in totoab initio (Latin ie altogether from the beginning), with this Theological assertion. Section 30 (2) of the aforesaid Code says :- “No sentence of Corporal Punishment shall be passed on any of the following persons:- (a) Females, (b) Males sentenced to death, (c) Males whom the Court considers to be more than fourty-five years of age”. Since Section 30, Sub-Section 2(a) says that Corporal Punishment shall only be passed on Male Convicts but not on Female Convicts, there is an urgent need to reform  Section 30 (2) (a), because of the following cogent and plausible Legal reasons:-

    1. It is diametrically opposed to this well known Human Rights citation, which is encapsulated in Section 21 of The Gambia’s 1997 Constitution which reads:- “No person shall be subject to torture or inhuman degrading punishment or other treatment.” Section 4 of the aforesaid Constitution says:- “This Constitution is the Supreme Law Of The Gambia and any other Law, found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”. This famous Legal citation, is also found in the following United Nations International Human Rights Conventions, which The Gambia has signed and ratified, namely:-
    2. The United Nations 1948 Universal Declaration Of Human Rights,
    3. The United Nations International Covenant On Civil And Political Rights (1966),
    4. And more recently, The United Nations Convention On The Rights Of The Child (1989), which The Gambia signed and ratified in 1990, and which it domesticated with it’s Children’s Act of 2005.

    Finally, A Private Prosecution, can also be used, as a Legal Mechanism for protecting Women’s Rights (this also includes Girls’s Rights). An example of such a Legal scenario is, if a woman or a girl, has been allegedly raped by an accused, and the male accused is a cousin of the incumbent Director Of Public Prosecutions (D.P.P.) and he is also a cousin of, the present Inspector General Of Police (I.G.P.). In such a Legal scenario, in the interest of Justice and fair play, it will be of paramount importance, for A Private Prosecution, to be embarked upon, by the family of the Complainant, in order to eschew/avoid any form of biasness on the part of the two aforesaid Legal Public Officials, and to prevent them from allegedly violating, one of the two cardinal principles of The Doctrine Of Natural Justice, which is encapsulated in this famous Latin maxim:- “NemoJudex In CausaSuaPotest”(ie no person can be, a Judge in his / her own cause).

    AUTHOR’S NOTE:- (1)This Legal article, has been researched and written by The Author, DR. Henry D. R. Carrol – (M.R.G.), in response to an Official request from The Honourable Lord Chief Justice Of The Gambia, The Honourable DR. Justice Emmanuel Fagbenle, for The Author to be among the writers of Legal articles, for the maiden or prototype Legal Magazine entitled:- “THE GAMBIA LAW JOURNAL”.

    (2) This Legal article, is an excerpt from The Author’s Female Gender Law Book entitled :-

    “VIOLENCE AGAINST WOMEN AND WOMEN’S RIGHT’S IN THE GAMBIA (CASE STUDY)” Which The Author has Officially dedicated to His Excellency Sheikh Professor Alhajie DR. Yahya A.J.J. Jammeh (Babili Mansa), (G.M.R.G.), since he is undeniably “THE CHAMPION OF WOMEN’S RIGHTS AND EMPOWERMENT IN THE GAMBIA”.

     

    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.)