Saturday, November 13, 2010

DPP Called Defence Motion ‘A Medicine After Death’

Banjul, The Gambia (TNBES) The Director of Public Prosecution (DPP) Richard Chenge has said that the motion jointly file by the defence counsels in the Criminal case involving Ex-Inspector General of Police, Ensa Badjie and Co is a medicine after death.

His arguments came after the defence counsels move a motion for the Court to strike-out some of the charges against their clients in the trial of Ex-IGP Badjie and two others at the Banjul High Court before Justice Emmanuel Amadi on Tuesday 11th May, 2010.


DPP Chenge submitted that Section 217 of the Criminal Procedure Code (CPC) provided that objection should be taken before plea taking. He said that persons can be tried together when they commit an offence on the same transaction and once the offence are related, even if it is two thousand counts, it can be put
together.

He added that time has pass for the defence to challenge or object to the counts preferred against the accused person. He further added that Section 2 of the Economic Crime Specify the economic crime in the 1994 Degree, adding that Section 5 (G) did not mention economic crime. 

DPP Chenge told the Court that the argument by  the defence counsel is not applicable as far as abuse of office for private gains is concern and as long as the persons involve holds public office and commits an offence. He told the Court that diligent prosecution could not afford for the defence to sort-out that diligent work. DPP Chenge said that Count One and Two are not vague and there is no reason why they are vague.

Moving the motion earlier, the defence counsel for the first and second accused persons, Borry Touray submitted that the said motion was jointly filed by both of them (Borry
Touray and Lamin K Mboge, counsel for the third accused) on May 11, 2010 for
the Court to strike-out some of the charges against their clients.

He said this charges count from Degree number six of 1994, noting that the title of degree number six of the Suspension and Amendment Degree Number Six 1994 are Economic
Crime specifically offences in Degree Number Sixteen.

He submitted that Count 44 to 51 in the particulars of each of those counts that the person suffers most, are names of individuals and not the state. He added that most of
the essential definition is lost on the public body, adding that Omar Ndow is
not a public body. He submitted that the count on economic crime has been
charge under Section 5 (G) of the Criminal Procedure Code. He further submitted
that in order for the person to be charge under section 5 (G), the benefit he
drives to obtain most collected from the public body not individual.

He added that there is nowhere in the counts from 44 to 50 which shows that Omar Ndow and others are public officials under the employment of the Government of The
Gambia. Counsel Touray added that discretion ought to be made in the case and
that he would make an analogy of the case. He told the court that house
breaking and stealing are different offences, but there is no doubt that they
are both offences in different nature. He further said that the prosecution can
charge for house breaking and stealing, but each has to stand on its own.

He also submitted that the prosecution cannot charge the accused persons in respect to the same charges stealing, obtaining money by false pretence, official
corruption, economic crime and abuse of office.
He then argued that the Court should strike-out those charges from the
charge sheet. He said that the fact of this case have no bearing on economic
crime as related to Count 44 to 51. He argued that there is lack of logicality
in ample reason when the accused persons are alleged to have received ten
thousand euro (10,000) under the guard that the President has given them drugs
to sell.

The Counsel then referred the Court to legal authorities to back his arguments. He told the Court that these Counts has been repeated in relation to the ten thousand euro,
abuse of office, economic crime etc. He further told the Court that Count 4,
11, and 48 are all in respect of the same amount of money, the same person and
the same transaction. He said the same applies to Count 4, 5, 8, 9, 12, 13, 14,
16, and 34 and the rest is in the hand of the Court. He also told the court that
these are all offences of the same nature. He said that the prosecution cannot
charge and it is certainly not oppressive and all the charges are the same sum
of money. He told the Court that these are the first ever charges on the
prosecution ever laid in the Court. He concluded by urging the Court to cut out
charges from Count 44 to 51 as they are not correct charges. The counsel for
the third accused person, Lamin K Mboge told the court that Count 1 and 2
should be cut out because they are vague. Replying on the point of law Mboge
cited Section 3 of the Criminal
Procedure Court. Vol:2 Issn:179

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