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Momodou
Denmark
11634 Posts |
 Posted - 26 Jun 2019 : 14:06:52
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Former AFPRC junta member Yankuba Touray has just been arrested today, for refusing to testify in investigations at the TRRC citing immunity in the 1997 constitution and 2001 ammendment for any human rights violations from 1994-1997. Yankuba had been adversly mentioned by many witnesses and witnesses stated that the former civilian finance minister was murdered in his house and later burnt in his car on the Sukuta Jambajelly road.
He will have to appear at the High Court in accordance to the TRRC act.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 26 Jun 2019 : 20:41:27
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Statement of the Truth, Reconciliation and Reparations Commission
The Truth, Reconciliation and Reparations Commission (TRRC) has issued multiple subpoenas to Mr Yankuba Touray to appear before the Commission to testify as a person adversely mention for his involvement in human rights violations between 1994 and 1996. All those subpoenae where postponed and the last subpoena was issued on the 24th day of June 2019 for his appearance and testimony before the Commission today the 26thday of June 2019.
During a meeting this morning between Mr Touray, the chairman and the Commission’s staff members, Mr Touray indicated his refusal to honour the subpoena. He is presently within the premises of the TRRC, but as has just been seen, he has clearly refused to appear and testify before the Commission pursuant to the subpoena. Mr Yankuba Touray claims that he has immunity from prosecution for all human rights violations that occurred between 1994 and 1997. It must be noted however that even if this immunity claim were to be accepted - which is not the case - he cannot lawfully refuse to appear before the Commission and answer questions that do not directly violate the immunity he claims.
Mr Yankuba Touray has also been informed on several occasions that failure to respect a subpoena issued by the TRRC constitutes a contempt of court and is therefore liable to be referred to the High Court for prosecution. In light of this, the Commission has to act firmly and within the parameters of the law to ensure that actions of this nature are dealt with, with the full force of the law. I therefore have no choice but to order the immediate arrest of Mr Yankuba Touray pursuant to section 15(1)h and 15(2)b of the TRRC Act 2017 and to hand him over forthwith to the police station that has jurisdiction over offences within this area and a referral be submitted as soon as possible to the Attorney General Chambers for Prosecution of Mr Yankuba Touray at the High Court.
ISSUED THIS 26th DAY OF JUNE 2019
Dr Lamin Sise
THE CHAIRMAN, TRRC
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 27 Jun 2019 : 10:57:34
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Police Detain Yankuba Touray
Foroyaa: June 26, 2019
By Yankuba Jallow
http://foroyaa.gm/police-detain-yankuba-touray/
Yankuba Touray, an ex-member of the defunct AFPRC junta has been arrested under the instruction of the TRRC following his refusal to answer to questions put to him by Commission’s lead counsel.
Touray’s arrest and subsequent detention came barely few weeks after the State dropped criminal charges against him at the High Court.
The former junta member appeared before the TRRC on Wednesday, 26th June 2019 under a subpoena by the Truth, Reconciliation and Reparations Commission (TRRC).
When he was called to be sworn-in, Touray, who wore a white outfit, refused admission of the prescribed oath.
“I am not swearing-in; I want to make a statement first,” Touray told the TRRC.
After a push and pull with the Commission, Touray was refused to give the statement he requested to make.
“I am not swearing-in. If I am not going to speak (make a statement), then I am leaving,” Touray said while he walked out of the room.
He was arrested immediately on the order of the TRRC chairperson. He was given a second chance after Essa M. Faal, the Lead Counsel to the Commission pleaded to the chairperson to give Mr. Touray a second chance to testify.
“Is this (arrest) an ambush Counsel?” Touray asked Essa Faal.
On the second attempt to bring him back to the Commission, Touray told the Lead Counsel that he won’t answer to any of his questions although he administered the prescribed oath. He relied on the Constitutional immunity accorded to him by the 1997 Constitution.
The constitution provides that: “No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.”
The Commission’s chairperson, Dr. Lamin Sise in his address stated that they have issued multiple subpoenas to Mr. Touray to appear before the Commission to testify as a person adversely mentioned for his involvement in human rights violations between 1994 and 1996. He indicated that all those subpoenas were postponed and the last subpoena was issued on the 24th June 2019 for his appearance and testimony before the Commission.
Dr. Sise detailed that during their meeting with Mr. Touray in the morning, he indicated his refusal to honour the subpoena. According to the TRRC chair, Mr. Touray claims that he has immunity from prosecution for all human rights violations that occurred between 1994 and 1997.
“It must be noted, however, that even if this immunity claim were to be accepted – which is not the case – he cannot lawfully refuse to appear before the Commission and answer questions that do not directly violate the immunity he claims,” Dr. Sise sounded.
Sise went ahead to stating that Mr. Touray has also been informed on several occasions that failure to respect a subpoena issued by the TRRC constitutes a contempt of court and is therefore liable to be referred to the High Court for prosecution.
“I therefore have no choice but to order the immediate arrest of Mr. Touray pursuant to section 15 (1) (h) and 15 (2) (b) of the TRRC Act 2017 and to hand him over forthwith to the police station that has (the) jurisdiction over offence within this area and a referral be submitted as soon as possible to the Attorney General’s Chambers for prosecution of Mr. Yankuba Touray at the High Court,” Chairperson Sise ordered.
Touray was then arrested by members of the Police Intervention Union (PIU) and taken out of the premises of the TRRC.
Dozens of angry Gambians, mainly youth, rushed to the TRRC premises to lynch Touray who was immediately whisked away to the Kairaba Police Station.
Foroyaa’s reporter reached Kairaba Police Station around 1pm and found the scenery was chaotic. People crowded the place to vent their anger over Touray’s refusal to testify before the Commission.
People were seen holding bricks and one of them held a machete in his hand, moving about in the crowd that was around the gate of the police station.
One of the people said, “The Police threw tear gas to disperse us. Some of the protesters were demanding the Police to release Yankuba Touray so that they would deal with him.”
The Police gate was locked until the situation was calm a bit. But it did not last long for the crowd to get agitated again. Upon hearing that Yankuba was moved to another location, journalists went to the Anti-Crime Unit, but were not allowed to enter.
An official of the unit implored journalists to call or contact the police headquarters to seek permission for them to be allowed in. Thereafter, as they (journalists) were about to leave the premises of the Anti-Crime Unit, they saw the vehicle that transported Yankuba Touray drove out of the place and headed to an unknown location.
What Protesters were saying?
Alagie Darboe, one of the protesters, said he left his office and rushed to the scenery because he could not bear Touray’s stand, saying they wanted to show the police how bitter they were after Touray refused to give evidence before the TRRC.
Darboe claimed that they were going to deal with him mercilessly.
Ahmad Janneh, also one of the youths, said Yankuba Touray failed to comply with the TRRC process twice, so they wanted that to stop.
“TRRC has been given a mandate by the people, by the members of parliament who we voted for, they are representing us. Gambians have decided that we needed a Truth, Reconciliation and Reparations Commission,” he said. Other protesters expressed similar sentiments.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 27 Jun 2019 : 14:26:14
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With ‘constitutional immunity,’ Touray disregards legitimacy of TRRC
The Point: Thursday, June 27, 2019
http://thepoint.gm/africa/gambia/article/with-constitutional-immunity-touray-disregards-legitimacy-of-trrc
Ex-junta member and onetime minister of Local Government and Lands of the APRC, Yankuba Touray, yesterday refused to testify before the Truth, Reconciliation and Reparations Commission (TRRC) chaired by Dr. Lamin J. Sise.
Mr. Touray told the Commission that he did not recognise the legitimacy of the TRRC due to his constitutional immunity, adding that the constitution is the supreme law of The Gambia.
Mr. Touray first appeared but refused to take the Holy Qur’an for swearing, saying he had something to say. He was asked to take oath or swear first before making any statement, but he walked out of the conference hall and went to the witness room.
The lead Counsel, Ensa M. Faal then craved the indulgence of the Commission to give Mr. Touray another opportunity to come back and testify to which he finally agreed.
He replied in the affirmative when asked whether he was prepared to testify. He was later given the Holy Qur’an and he swore on it.
The witness told the Commission that he was born on 9 June, 1966 and he joined the Gambia National Army in 1986.
When Touray was asked whether he was aware of any problem at the Gambia National Army in 1994, he replied that he was neither answering nor giving any testimony touching on 1994, adding that he invoked the immunity powers accorded to the AFPRC (junta) members under the 1997 Constitution.
Yankuba Touray got up and left the conference hall and went into the witness room where he was later led outside and escorted to a waiting car and ferried to Kairaba Police Station.
Author: Bruce Asemota
Justice Ministry vows to prosecute Yankuba Touray
The Point: Thursday, June 27, 2019
http://thepoint.gm/africa/gambia/article/justice-ministry-vows-to-prosecute-yankuba-touray
The Minister of Justice Abubacarr Tambadou has vowed to “vehemently” prosecute, Yankuba Touray, the former APRC junta member after he refused to testify at the TRRC despite been served with several subpoenas, GRTS reports.
Speaking on the programme “Gambia Today” on GRTS, Minister Tambadou said he was shocked by Mr. Touray’s “contemptuous conduct” and for acting in “utter disrespect to the victims of his crimes.”
After his arrest, he was taken to the Kairaba Police Station where a mob of angry protesters quickly gathered requesting Yankuba Touray be handed over to them. Mr. Touray was then transferred by the police to an undisclosed location.
Police PRO ASP Lamin Njie told the state broadcaster that the police are now pursing all procedures to hold Mr. Touray to account.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 28 Jun 2019 : 10:26:43
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TRRC's Lead Counsel Argues Constitutional Immunity for AFPRC Members is Discriminatory
Foroyaa: June 27, 2019
By Yankuba Jallow
http://foroyaa.gm/trrcs-lead-counsel-argues-constitutional-immunity-for-afprc-members-is-discriminatory/
Essa M. Faal, the Lead Counsel to the TRRC Wednesday argued the Constitutional immunity accorded to the AFPRC members is discriminatory in nature.
Essa M. Faal mentioned this during a press briefing held at the Truth, Reconciliation and Reparations Commission (TRRC) on Wednesday, 26th June 2019 following his argument with Yankuba Touray, an ex-member of the AFPRC.
The Armed Forces Provincial Ruling Council (AFPRC) ruled the Gambia from July 1994 to January 1997 under a transitional government headed by retired Captain Yahya A.J.J. Jammeh as the chairman.
Yankuba Touray appeared before the TRRC on Wednesday, but refused to give evidence relying on the constitutional immunity. Touray was arrested by members of the Police Intervention Unit immediately following the instruction given by the TRRC's chairperson, Dr. Lamin Sise.
Counsel Faal put forward that the immunity provision of the Constitution is discriminatory as it provides immunity to members of the AFPRC and does extend to the people who execute their orders.
"It provides immunity to Yaya Jammeh but does not provide immunity to Musa Jammeh who used to execute their orders".
The Constitution provides: "It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council, or a member thereof, and alleged to be in contravention of any law whether substantive or procedural, in existence before or during the administration of the Armed Forces Provisional Ruling Council."
Additionally, Counsel Faal told Gambians that Mr. Touray has never failed to honour any of the subpoenas of the TRRC.
"The failures to respond to our subpoenas were not Mr. Touray's making; let me make that clear. The failures to respond to our previous subpoenas were not of Mr. Touray's making," Counsel Faal said.
He said the TRRC had given Mr. Touray two previous subpoenas and were both postponed by the Commission.
"We requested the postponement or we order the postponement. Mr. Touray is not at fault for not appearing on the dates of those subpoenas.
Counsel Faal said the Commission is a very important institution of the State especially as we search for ways and means to better strengthen democracy and the rule of law.
Faal indicated that this is a time when people are expected to express proper conduct and decorum especially those who have handled senior positions of the Government.
The Lead Counsel told the press that the objectives of the Truth Commission is to ensure that Gambians have a conversation among themselves in which they will look into the ills of the past with a view to identifying the problems, ensure healing and give victims a platform to talk about their own victimization and also for them to get some form of healing and for people to reconcile.
"The Commission has given Mr. Touray ample opportunities to cooperate with the Commission. It is disappointing he has behaved in this way. Mr. Touray does not have the right to refuse to answer questions before the TRRC especially questions that do have nothing to do with his immunity claims," Faal said.
The Counsel stated that the TRRC encourages civilized behaviour.
"What has happened today is contempt in the face of the Commission and we believe that several offences have been committed," Counsel Faal indicated.
He said it is only Mr. Touray who treated the TRRC in this manner.
"There is no other witness who is treating the TRRC in this manner," he said.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 01 Jul 2019 : 23:52:38
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| Ex junta member, Yankuba Touray, has been charged with the murder of former finance minister Ousman Koro Ceesay. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 02 Jul 2019 : 15:35:05
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Yankuba Touray charged with murder
The Point: Tuesday, July 02, 2019
http://thepoint.gm/africa/gambia/article/yankuba-touray-charged-with-murder
A former junta member and onetime minister of Local Government Lands, Yankuba Touray, has been charged with murder. He was arraigned before Justice Ebrima Jaiteh of High Court of The Gambia, however, he did not take his plea, according to judicial sources.
The offence contravenes Section 187 of the Criminal Code Cap 10 Volum 3, Laws of The Gambia 2009.
The particulars of the offence stated that Yankuba Touray sometime in the month of June 1995 at Kololi in West Coast Region of the Gambia within the jurisdiction of the honourable court and with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with pestle-like object and other dangerous weapons and thereby committing an offence.
Mr. Touray’s charge came following his refusal to testify before the Truth, Reconciliation and Reparations Commission (TRRC) – an institution set up to establish the truth and reconcile Gambians after 22 years of oppressive growth. He claimed to have constitutional immunity and thus disregarded the legitimacy of the TRRC.
The lead council of TRRC, Essa M. Faal described Mr. Touray as the first witness to ever challenge the authorities of TRRC after refusing to give evidence before the commission last week. He was eventually arrested on the orders of the chairman of the TRRC, Dr. Lamin J. Sise.
Mr. Touray was remanded at Mile 2 and will reappear before the court on Monday 8 July 2019.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 03 Jul 2019 : 15:54:54
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Yankuba Touray faces fresh charge
The Point: Wednesday, July 03, 2019
http://thepoint.gm/africa/gambia/article/yankuba-touray-faces-fresh-charge
Yankuba Touray, a former junta member and onetime minister of Local Government and Lands has been slammed with an additional charge barely 24 hours after he was first arraigned on murder charge at High Court, Kerr Fatou reports.
Mr. Touray, who faces contempt charge, is being defended by defence counsel, Abdoulie Sissoho.
On Monday he was arraigned before Justice Ebrima Jaiteh of High Court of The Gambia on a murder charge but did not take his plea, according to judicial sources. The charge was in connection with the alleged killing of former Finance minister, Ousman Koro Ceesay in 1995.
Mr. Touray put his hand in a proverbial jar last week Thursday when he refused to respond to questions asked by lead counsel of the Truth, Reconciliation and Reparations Commission (TRRC) on issues he was adversely mentioned by other witnesses, claiming he had constitutional immunity.
He was arrested, charged with murder and arraigned before the court on Monday.
Mr. Touray was remanded at Mile 2 but reappeared before the court the following day. He is expected at the court on Monday 8 July 2019.
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 04 Jul 2019 : 16:02:14
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TRRC lodges complaints against Yankuba Touray at High Court
The Point: Thursday, July 04, 2019
http://thepoint.gm/africa/gambia/article/trrc-lodges-complaints-against-yankuba-touray-at-high-court
The Truth, Reconciliation and Reparations Commission (TRRC), chaired by Dr. Lamin J. Sise on Tuesday, 2 July, 2019 formally lodged a complaint against Yankuba Touray, former junta member of the AFPRC and minister of Local Government and Lands before the High Court presided over by Justice Sainabou Wadda- Cisse.
Yankuba Touray was not charged with a fresh charge on Monday before the High Court as earlier reported; after being charged with the murder of Ousman Koro Ceesay, former Finance minister in Ex-president Jammeh’s regime.
A referral for contempt proceedings against Yankuba Touray was brought pursuant to Section 15 of the TRRC Act, 2017 before Justice Sainabou W. Cisse.
The State was led by the Attorney General and Minister of Justice, Abubacarr Ba Tambadou and director of Civil Litigation, D. Binga, whilst lawyer Abdoulie Sissoho represented Yankuba Touray who was present at the hearing.
During the hearing, the State attached a referral letter with a statement of facts pertaining to the proceedings of the TRRC of 26 June, 2019, wherein Yankuba Touray was subpoenaed to appear before the TRRC and to answer questions under oath before the Commission.
The referral stated that Yankuba Touray is believed to have committed offences under Section 15 (2) of the TRRC Act and Section 106 (c) of the Criminal Code.
Also attached to the referral letter is the affidavit in support of the Referral sworn to by Dr. Lamin J. Sise, the chairperson of the TRRC and also attached to the supporting affidavits were certain exhibits.
Justice Sainabou W. Cisse indicated that she did not have any substantive originating process or a bill of indictment but had the ex-parte motion seeking for an order to join the attorney general and minister of Justice as a party to be heard on the referral matter before the court.
The trial judge, however, urged the attorney general to address the court on the propriety of the mode adopted to approach the court.
Justice Cisse noted that lawyer Abdoulie Sissoho, the legal counsel for Yankuba Touray raised a preliminary objection challenging the attorney general to represent TRRC in the matter.
Justice Cisse ordered lawyer Sissoho and the State to file consolidated written addresses on the issues raised by the court and the preliminary objection raised by lawyer Sissoho on the right of the attorney general to represent the TRRC (locus standi).
Justice Sainabou W. Cisse granted lawyer Abdoulie Sissoho three (3) days to file the address and the Attorney General three (3) days from the date of service of Lawyer Sissoho’s brief of argument to file his reply and same shall be filed on or before the 12th of July, 2019.
The trial judge pointed out that rejoinder on points of law must be filed on or before the 17th July, 2019.
She noted that subject to the parties filing their addresses within the time limit granted by the court, the addresses filed shall be deemed adopted.
Justice Saniabou Wadda Cisse then adjourned the matter to 23rd July 2019 for ruling as to whether the Attorney General can represent the TRRC in the contempt proceedings against Yankuba Touray.
Author: Bruce Asemota |
A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11634 Posts |
Posted - 09 Jul 2019 : 14:59:52
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High Court to rule on Yankuba’s constitutional immunity
The Point: Tuesday, July 09, 2019
http://thepoint.gm/africa/gambia/article/high-court-to-rule-on-yankubas-constitutional-immunity
Justice Ebrima Jaiteh of the High Court in Banjul is expected to rule on Yankuba Touray’s claim of constitutional immunity. This development came up when Yankuba Touray was asked on 8 July, 2019, to take his plea on the murder charge against him, but he pleaded his constitutional immunity.
When the case was called, the attorney general and minister of Justice, Abubacarr Tambadou, announced his representation for the state along with A.M. Yusuf as well as Counsel Abubacarr. Defence Counsel Sissoho appeared on behalf of Yankuba Touray.
Abubacarr Tambadou told the court that the matter was set for plea taking, and urged the court to read out the charge to the accused. The presiding judge then read the charge to the accused and asked him whether he was guilty or not, but he maintained his constitutional immunity.
Justice Jaiteh then told the court that the charge was read to the accused which he understood but held on to his immunity plea. He further stated that the court shall enter not guilty plea.
Minister Tambadou explained that the court should enter not guilty plea because of the refusal of the accused not to enter his plea and claim of constitutional immunity. He noted that that should be viewed as a challenge to the court’s jurisdiction to hear and determine the matter. He adduced that the challenge could not be ignored.
He argued that under these circumstances, the general claim of constitutional immunity such as claimed by the accused was ambiguous. He stated that they did not know the category of immunity the accused was claiming. He further said that the accused could not abrogate the power to determine his immunity.
The presiding judge then continued that the accused had the right not to say anything, noting that the burden lies on the prosecution to prove their case beyond reasonable doubt.
Minister Tambadou also noted that the immunity the accused was claiming could only be a defence, and like all defences in criminal trial, it is the court that can determine whether the defence could be upheld or not. “If the court will agree with me that the position of the accused in claiming constitutional immunity is a challenge to the jurisdiction of the court, it may refer to Section 127 of the constitution or referral to the Supreme Court for interpretation,” he told the court.
He said that it was his submission that the court to act on the side of caution in view of the claim of constitutional immunity by the accused. He added that if the court would proceed with the matter despite the challenge of jurisdiction, the prosecution wished for an adjournment. He cited Section 226 of the CPC because the prosecution is in the process of amending the indictment to add at least ten additional counts of murder and serious offences.
He noted further that because of the amendment, the prosecution needed to serve all the provisions in order for the accused to prepare his defence.
Counsel Sissoho, representing Yankuba Touray, told the court that the proposed amendment was not before the court and those amendments had nothing to do with the trial. He argued that the state did not refer to any Section of the 1997 constitution, noting that Section 127 does not arise. He urged the court to refer the matter to the Supreme Court.
Justice Jaiteh will make his ruling on 15 July, 2019.
Author: Dawda Faye |
A clear conscience fears no accusation - proverb from Sierra Leone |
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toubab1020
12306 Posts |
Posted - 25 Aug 2020 : 13:00:36
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https://foroyaa.net/justice-jaiteh-says-yankuba-touray-can-testify-in-his-murder-trial/
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By Yankuba Jallow on August 24, 2020
Justice Ebrima Jaiteh of the Banjul High Court on Monday 24th August 2020, ruled retired Army Captain Yankuba Touray can testify in his murder trial.
Justice Jaiteh said Touray who is accused of murdering ex-Minister of Finance Ousman Koro Ceesay in June 1995 at his residence in Kololi with a pestle-like object, should be allowed to testify in the interest of fair hearing.
In this case, the prosecution called nine witnesses to prove their case whilst the Defense have opened their case and have called two witnesses.
On whether the Accused person should be allowed to testify in his defense after the first and second witnesses testified in his defense, Justice Jaiteh said as per Section 240 (4) of the CPC, the laid down procedure is when the prosecution closed its case, the accused is required if he or she desires, to give evidence on oath and thereafter to call his witnesses.
According to Justice Jaiteh, the accused person did not follow this laid down procedure because he called his witnesses and thereafter, desires to testify in his trial.
“The question that begs for an answer is whether Section 240 (4) of the CPC is a mandatory laid down procedure that the accused must testify first, before calling his witness(s) and failing which, the accused is estoppel from testifying in the trial?” Justice Jaiteh asked.
He said the operative word that needs interpretation in Section 240 (4) of the CPC is the word “shall” in the context of whether it is mandatory for the accused person to give evidence first before calling other witnesses.
Justice Jaiteh maintained that the word “shall” has been interpreted in case law authorities across the common law jurisdictions including the Gambia.
“Generally speaking, the word ‘shall’ implies a mandatory mandate but the word is capable of conveying either mandatory or permissive meaning, depending on the context in which it is used,” the Judge ruled. He said there is no legal effect created in Section 240 (4) of the CPC if the accused failed to testify before calling other witnesses.
“Therefore, Section 240 (4) of the CPC in my view is merely directory and not mandatory. And if the legislature had intended to make it mandatory, there would be a sanction for breaching Section 240 (4) of the CPC and this Court in its quest of doing substantial justice, cannot punish the accused person for a breach of duty when the act is directory. I hold the strong view that the use of ‘‘shall ’’ in Section 240 (4) of the CPC, does not connote mandatory obligation and therefore it is not absolute,” Justice Jaiteh maintained.
He said every person who is tried for a criminal offence, must be given full opportunity to defend himself / herself before a Court in person, and present his case and call witnesses in his defense; that failure of this on the part of a Court is a breach of natural justice and the rights of accused persons in criminal offences are protected by Section 24 of the 1997 Constitution of the Gambia.
“Section 24 of the Constitution is an entrenched fundamental human right Clause and the Courts are enjoined to respect and protect these rights,” he said; that it is for these and other reasons that the accused person must be accorded fair hearing and be allowed to testify in this murder trial.
“From the foregoing reasons and in the interest of fair hearing and natural justice, the accused person should be allowed to testify in this trial and the weight to be attached to his evidence shall be determined by this Court at the end of this trial. Accordingly, natural justice demands that a party must be heard before the case against him is determined,” Justice Jaiteh ruled.
According to Justice Jaiteh, in the Gambia’s constitutional jurisprudence, fair hearing rule occupies such a tall height that no rule of law or settled practice is allowed to torpedo it, save in established exceptions. He said the Court is under an obligation to give both prosecution and defense the opportunity of presenting their respective cases without let or hindrance from the beginning to the end, which will make impartial observer leave the courtroom, to believe that the trial has been balanced and fair on both sides.
“Accordingly, the application is hereby granted and the accused is hereby permitted to give evidence in this trial,” Justice Jaiteh ruled.
This ruling was predicated after an objection raised by Prosecution Lawyer Kimbeng T. Tah to the Defense application for the accused to testify in his murder trial. The objection was made pursuant to Section 240 subsection 4 of the Criminal Procedure Code (CPC). It was the submission of the Prosecution that the accused ought to testify first before calling other witnesses in his defense. The Prosecution argued that the purpose of Section 240 (4) of the CPC is to preserve the integrity of the evidence being provided in support of the accuse person’s defense. The prosecution further submitted that Section 204 (4) of the CPC is very clear and is a mandatory requirement that the accused ought to have testified first before calling other witnesses in his defense. They invited the Court to make a comparison between the words “shall” and “may” and thus submitted that it is a trite principle of law that “may” connotes permissiveness, thereby allowing the Court to exercise its infinite discretion and whereas “shall” as provided in Section 240 (4), connotes strict requirement. The Prosecution put side by side Section 240 (4) to Section 241 of the CPC which provides for additional witnesses as a provision to the general requirement for the defense. Thus barring witnesses who are yet to testify, from being present in Court before testifying.
The Prosecution argued that the principles of law and natural justice presuppose that an accused person who desires to testify in his own defense would be eager to testify first; that the defense application for the accused to testify at this point is highly prejudicial to the justice of the case because he has already listened to the testimonies and cross-examinations of defense witnesses 1 and 2. The Prosecution further argued that an assumption must be held that any evidence offered by the accused person at this point would be tainted as a result of first-hand perception of cross-examination of defense witnesses 1 and 2. The prosecution said the principle of fair hearing is not infinite and ought to be read in the context and purview of the existing laws and statutory provisions. The Prosecution submitted that the word in the constitutional provision is “afforded” which means given an opportunity and that the accused had been afforded the opportunity to testify, but he refused and has forfeited the right to be heard and cannot allege an infringement of the right to fair hearing. The Prosecution further submitted that if the Court is minded to allow the accused to testify which they strongly oppose, the Court should make a determination as to the weight to be attached to the accused person’s evidence.
In responding to the objection raised by the Prosecution, defense Counsel Sisoho argued that what is relevant at this stage is the relevance of the evidence and not the weight that the Court would attach to the evidence adduced before it (the Court). Defense Counsel Sisoho submitted that the weight that will be attached to evidence shall be determined at the end of the trial, when all relevant evidence is placed before the Court and not otherwise. Lawyer Sisoho further submitted that the Court is guided by the Constitution of the Gambia, the common law principles, statutes and rules of the Court. He argued that both the Constitution and Statutes override the Criminal Procedure Code; that Section 24 (3) (d) of the 1997 Constitution overrides Section 240 (4) of the Criminal Procedure Code. He referred the Court to the House of Lords case of Ridge v Baldwin & Others (1962) A. C. 40, where the principle of ‘audi alteram partem’ rule was established and which is the right to be heard. Defense Counsel Sisoho submitted that the right to speak is an absolute right and the operative word under Section 240 (4) of the CPC is “shall” and it is not mandatory, but rather a discretionary provision. He argued that in the rules of interpretation, if “shall” was mandatory, there will be a proviso stating that if you fail to speak before your witness, your right to speak shall cease. Defence Counsel Sisoho further argued that there is no such proviso under Section 240 (4) of the CPC and submitted that the accused wants to testify in the interest of justice. Counsel Sisoho urged the Court to allow the accused to give evidence for the Prosecution to have the opportunity to cross-examine him. He said it will not be prejudicial if accused testifies in this trial.
In his reply on points of law, the prosecution submitted that the Constitution is the supreme law and interpretation of natural justice and morality must be guided by the Constitution as natural justice is not a fixed pillar. The prosecution referred this court to sections 19, 22 and 24 of the 1997 Constitution of The Gambia and argued that the right to fair hearing is finite and where the Accused has been afforded under the law and refused the same cannot be heard of infringement of the same rights. The Prosecution urged the Court to preclude the Accused from testifying in his defence.
The case was adjourned to Tuesday, 25th August 2020 for Mr Touray to begin his testimony.
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"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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toubab1020
12306 Posts |
Posted - 25 Aug 2020 : 23:49:24
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https://foroyaa.net/retired-captain-yanks-touray-testifies-in-his-murder-trial/
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Legal Affairs August 25, 2020
Retired Captain Yanks Touray Testifies in His Murder Trial
EducationAugust 25, 2020
By Nelson Manneh
Retired Captain Yankuba Touray, a former member of the defunct AFPRC Government has commenced giving testimony in his murder trial.
Touray is an ex-Minister of Local Government and Lands. The former military officer is the third defence witness in his murder trial which began in 2019. 53-year-old Touray is accused of the murder of Ex-Minister of Finance Ousman Koro Ceesay in 1995 at his residence in Kololi.
Touray was arrested following his refusal to continue with his testimony before the Truth, Reconciliation and Reparations Commission (TRRC) in June 2019. The TRRC was established by an Act of the National Assembly to investigate past human rights violations and come up with an impartial record of the violations that happened between 22nd July 1994 and January 2017. Touray pleaded his constitutional immunity. He faced two previous trials on tampering with a TRRC witness but the State discontinued the proceedings in one of the cases and he was discharged in the other by the court together with ex-Speaker of the National Assembly, Fatoumata Jahumpa.
Yankuba Touray, renowned as Yanks Touray held different cabinet ministry portfolios including Tourism, Youth and Sports.
He said he was enlisted in the Gambia National Army in 1986 as a recruit two years after graduating from Muslim High School in 1984 with O’Level.
Like all soldiers, Touray began his military career as a private soldier, in 1989 he was a Sergeant and in 1990 he was promoted to the rank of Second Lieutenant. He did his infantry officers course in the United States of America. After his return from the USA 1991, he was posted at the 1st Infantry Battalion as Platoon Commander responsible for the Support Team.
In 1992, Touray was redeployed to the 2nd Infantry Battalion in Farafenni and was posted at Kudang Military Camp as the Officer Commanding and a year later, he was redeployed to the 2nd Infantry Battalion headquarters.
He testified that he knows Alagie Kanyi but was quick to add that they don’t have a work relationship.
He said after the 22nd July 1994 military takeover, he continued to serve in the Gambia National Army. He said the members of the Armed Forces Provisional Ruling Council (AFPRC) Government were ex-Chairman Yahya Jammeh, Second Lieutenants Sanna Sabally (as Vice Chairman), Sadibou Hydara, Edward Singhatey, himself and two ex-officio members who were ex-Captain Lamin Kaba Bajo and ex-Captain Ebou Jallow.
He said in the morning of the day of the incident (Ousman Koro Ceesay died), he took her daughter Fatoumata Touray, one Mariama Minteh, one Awa Minteh who is his wife’s younger sister and one Adama Minteh who is a son of his elder brother to school. He added that his driver was one Lamin Ndour.
He said after dropping the children to school, he proceeded to work in Banjul where he held a meeting with the July 22nd Movement at his office in preparation of ex-Chairman Jammeh’s return from the Organisation of African Union (OAU) summit held in Ethiopia. He added that after preparing the minutes of the meeting, he couldn’t meet the ex-military leader for approval of what the meeting agreed upon.
He said since it was a Friday, a half-day, he went to his family compound in Banjul and performed the Friday congregational prayers. He said he then picked the children and drove home.
The matter was adjourned to Wednesday, 25th August 2020 at 10 am for the continuation of his testimony. |
"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Edited by - toubab1020 on 25 Aug 2020 23:51:39 |
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Momodou
Denmark
11634 Posts |
Posted - 28 Jan 2021 : 17:28:26
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Supreme Court rules Yanks has no constitutional immunity
The Point: Jan 28, 2021
By: Sankulleh Gibril Janko
https://thepoint.gm/africa/gambia/headlines/supreme-court-rules-yanks-has-no-constitutional-immunity
The Supreme Court of the Gambia presided over by the Chief Justice Hassan B. Jallow on Wednesday has ruled that former junta member Yankuba Touray is not entitled to constitutional immunity from prosecution for the alleged murder of Ousman Koro Ceesay.
The court says reasons for the decision will be delivered by the court in due course while it directed the trial to proceed in the High Court.
Yankuba Touray’s defence counsel, Mr. A. Sissohor on the 12th of October 2020 had applied an oral appeal urging the High Court to discharge the accused on the grounds that as a junta member of the AFPRC from 1994 to 1997’ and pursuant to paragraph 13 (1), (3) (4) and (5) of the Second Schedule to the Constitution of the Republic of the Gambia, the accused enjoys immunity from such prosecution.
Upon hearing submission from both parties, the High Court pursuant to Section 127 (1) of the Constitution decided to refer the matter to the Supreme Court to determine:
“Whether the accused person is entitled to Constitutional immunity from prosecution of the murder of Ousman Koro Ceesay pursuant to paragraph 13 (1), (3), (4) and (5) of the Second Schedule of the Constitution of the Republic of the Gambia, 1997.
Ruling the case, Chief Justice Hassan B. Jallow said, “this court, having considered the oral submissions and written briefs of learned counsel for both parties and of the Amicus Curiae admitted by the court, finds and holds that the accused Yankuba Touray is not entitled to constitutional immunity from prosecution for the alleged murder of Ousman Koro Ceesay pursuant to paragraph 13 (1), (3) (4) and (5) of the Second Schedule to the Constitution of the Republic of The Gambia 1997.
“Reasons for the decision will be delivered by the court in due course”
The Chief Justice said: “Accordingly, the High Court (Jaiteh J) is hereby directed to proceed with the trial of the accused person charged.
Former junta member Yankuba Touray is indicted for the alleged murder of Ousman Koro Ceesay in 1995 contrary to Section 187 of the Criminal Code Cap 10 Vol. 3 Laws of the Gambia.
He is currently on trial before the High Court on that indictment. |
A clear conscience fears no accusation - proverb from Sierra Leone |
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TRRC: Former AFPRC junta member Yankuba Touray
