Friday, October 22, 2010

In Femi Peters Case: Counsel Files No Case Submission



Banjul, The Gambia (TNBES) The Defence Counsel of the UDP Campaign Manager Femi Peters has filed a no case submission before Principal Magistrate Kayode Olajubutu of the Kanifing Magistrate’s Court, as
the trial continues.
 In his submission, defence counsel Ousainou Darboe said it was on the 28th October, 2009 that the IGP lodged at the Banjul Magistrates’ Court a criminal charge sheet containing two counts charging the accused person in those counts. “The evidence that has been adduce in this case, in particular PW2 in his humble submission shows that the accused is not on trial but it is the constitution of The Gambia and the survival of
democracy,” Darboe argued.

According to him, Count One stated that control of procession contrary to section 5 (5a). He referred to the charge sheet that is control of procession and used of loud speaker for holding a political rally.

Darboe added that after calling four (4) witnesses, the defence considered that no prima-facie evidence had been adduce by the prosecution to warrant the accused to enter his defence.

He said the Criminal Procedure Code (CPC) dose not provides the criteria which could guide the court in a situation like this. However, he cited the authorities to support his argument. “No case submission must be
upheld when an essential charge has not been proved or the evidence has not been manifested in way that no reasonable tribunal can be convinced on that or the evidence is so tenuous that if no evidence is laid, the tribunal cannot convince the accused to open his defence”, he submitted. 
“It is the first evidence that is remains the prosecution case in the matter, you must prove the commission of the offence, you must prove that the person charge is the one who committed the offence and must prove all”, he stated.

He said that proves are accumulating and then referred to the Oxford and Macmillan Dictionaries for the meaning of procession. He said the particulars of offence in the charge sheets are different from the meaning
of the procession according to the dictionary he referred. According to PW1 Darboe added the accused was found sitting down during the rally, he asked then where was the procession. The Defence Counsel holds an emphasis that according to PW1 it was the UDP that were holding the rally but not the accused.

He noted that the witness evidence showed that there was no procession and that the accused did not hold the rally but the UDP. Why the UDP was not charge for holding the rally? The counsel asked. “The party did not need a permit to hold a rally”, he stressed. He revealed that in PW2’s evidence indicated that the accused was sitting at the podium and someone was speaking and that he (the accused) was not talking to anyone.

He said according to PW2, the accused only responded when PW1 spoke to him, where was the evidences of procession and was the evidence of the rally held by the accused? Darboe asked. PW3’s evidence he said is virtually a narration of what PW1 and 2 had sad.

He added that PW3 indicated that the accused was on his legs around the podium. The counsel referred back to exhibit ‘A’ which is an application by UDP to hold a rally on the 24th October 2009, and at the back a minute that the application was not approve.

He stated that the accused never applied for a permit, it was the UDP that applied for a permit. The Defence Counsel submitted that there is no evidence to support the statement of offence, but the particulars of offence which must support the statement is at variance of the offence charged.

He re-emphasised that the accused never apply for a permit to hold a rally but the UDP. He stated that all the prosecution witnesses said that it was the UDP that was holding the rally, but not the accused adding that under Public Order Act (POA) there is no provision to apply for a permit to hold a rally, it is never in the law he said, referring to section 5 (5) (a) of the Public Order Act to support his argument. He indicated that there is no evidence that the accused has disobeyed any order or opposed it. 
“The evidence of PW1 and PW2 all talked about somebody who was at the podium speaking, who was this somebody? Nobody knows you must connect the accused with the charge and none of the witnesses of
the prosecution stated that the accused was using a loud speaker” he said. He submitted that none of the tribunal can call the accused to give evidence arguing that ‘it is democracy which is on trial and not the accused.’

He added the IGP choose to deny the UDP a rally and allowed the APRC to go ahead with their rallies. He submitted that the constitution provided that all persons are equal before the law. He finally submitted that
no sitting tribunal can hear these counts.

In his response, the Prosecutor, Inspector Fadera said PW1 and PW2 evidence corroborate. He added that PW2 indicated that there was a procession that a group of people were escorting a car adding that PW3 also did said that there was a procession of a group of people escorting a vehicle.

Fadera argued that all the witnesses were never showed a permit to hold a rally. He said that PW4 told the court that there was an application by UDP to hold a rally and it was signed by the accused adding that
the defence never disputes these facts.

He stated that PW4 said that the accused went back to find out whether the application to hold a rally was approved.

According to Fadera, the prosecution witnesses said that there was a rally and that there was a used of loud speaker. He said that the APRC was denied a permit and urged the court to term the prosecution witnesses
as credible. He added that the court could not belief that the accused person did not hold a rally. Fadera urged the court to see the witness as trustworthy and that a prima-facie case has been established by the prosecution.

He finally called on the Court to allow the accused to enter into his defence.

The case has been adjourned till 3rd March 2010, for ruling.VOL:2ISSN:116

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