IN THE CASE OF THE IGP VS OMAR TOURAY OF GUNJUR. The case involving the Inspector General of Police vs Mr. Omar Touray of Gunjur kicked off Tuesday afternoon at the Brikama Magistrate Court presided Over by Magistrate Omar Cham.
Omar Touray is charged with the offence of SEDITIOUS INTENTION contrary to Section 51( a) of the Criminal Code, Cap 10 Vol. iii Laws of The Gambia. In the particulars of offence, the prosecutors alledged "that Mr. Omar Touray on the 1st of June in Gunjur Village, Kombo South District of the West Coast Region uttered a statement saying the President of the Republic is a Hypocrite and a Liar" knowing fully that such utterances are likely going to cause contempt and incitement of Violence. The Accused could be seen exhaustedly seated in the court room with his hands on chain while waiting for the appearance of the presiding magistrate, shortly after the Magistrate appeared, he ordered that the chains be removed from the accused and the prosecution did not objected to this. The accused was then brought to the dock and the charges were read to him in Mandinka and he pleaded not guilty. After his plea of not guilty, the lead prosecutor, ASP E.A Keita informed the court that they are objecting for the accused to be granted bail. In their submission before the court, the prosecution said in the interest of Natural Justice and that of Fair trial coupled with the fact that the investigation is at preliminary stages, they wish to see the accused remanded. They further argued that the said utterance by the accused was through a WhatsApp Group created by the accused himself and if he is allowed bail, he will likely tamper with the said WhatsApp group and thereby destroy evidence. However, the said points were objected to by the Defence Lawyer, Mr. Lamin J Darbo. In his counter argument, he said having considered that the country has just come from a totalitarian dictatorship, any move by the police on behalf of the State to object the granting of a bail to a Citizen on such a minor offence will be very disturbing. Defence Counsel Darbo made references to section 99 of the Criminal Code which states that every accused person shall be granted bail unless the punishment for such an offence is Life Imprisonment or Death. He said the penalty for the offence of Seditious Intention is just a fine of D50,000 with maximum of D250,000 or 1 (one ) year imprisonment or both a fine and prison term. Counsel Darbo further argued that the constitution is very clear, saying the provisions of section 19 demands that an accused be brought before a competent court of jurisdiction within 72 hours of arrest and he subsequently accused the State of contravening the Law by detaining the accused beyond stipulated constitutional limit of 72 hours. Counsel Darbo then called on the presiding magistrate to judiciously used his privilege as an adjudicator between the "mighty State and a powerless" citizen and that he should not look into what the complainant (State) said but what the Law said as to whether the offence is bailable or not bailable. "There is no question, this is a bailable offence" counsel submitted before the court. He said the prosecution talked about a fair trial but the constitution also demands for both a fair trail and a speedy trial citing the time of the arrest of the accused person and detaining him beyond the constitutional limitation that expired yesterday (Monday). "The accused is therefore under unlawful detention" defence counsel queried. "The accused is a Gambian with families ready to serve as sureties and even if it is ten (10) people, that is available to bail the accused and that there is nothing under investigation" defence counsel stated. He finally submitted that the prosecution can investigate even upto one year but that the citizen must be granted his constitutional right to bail. The prosecutor then rosed and objected to the submissions of the defence on points of law saying the defence counsel relied on section 19 as well as section 99 sub-section (1) of the criminal procedure code which states that the court "May" grant bail in line with the law but that the word "May" is not mandatory as "shall". The prosecutor said even though the offence is bailable, it is entirely discretionary on the part of the court to either grant or refused the bail. The prosecutor accused the defence of saying the President of the Republic is the complainant rather than the State. "I therefore submit that senior learned counsel's submission lacks merit" the prosecutor stated. After carefully cross-examining the submissions of both the prosecution and defence; the Magistrate granted bail to the accused with a whooping One-Million dalsis to be shared between two Gambian sureties with a landed property either in Greater Banjul Area or the Brikama administrative area and they are to submit their national documents with the court.