Court frees Gala members from unlawful assembly charge

By Fatou Gassama

Two senior members of anti-corruption protest group Gambians Against Looted Assets , GALA, Alieu Bah and Omar Camara, who were arrested alongside activist Kemo Fatty and charged with unlawful assembly, have all the been released by the Kanifing magistrates court.

 They were picked up by the police while protesting removal of former auditor general Modou Ceesay in September last year and charged with unlawful assembly which they rejected insisting they were there only to raise awareness about the matter through talking to the media.

At yesterday’s ruling on their case, Principal Magistrate Sallah Mbye upheld the no-case submission of defense lawyer Lamin S Camara and accordingly acquitted and discharged the trio from the counts of unlawful assembly and common nuisance. 

The magistrate informed the packed court that that the sole question before him was whether the prosecution has adduced sufficient evidence on each of the two counts charged to establish a prima facie case requiring the accused persons to be called upon to enter their defence. He said having carefully evaluated the totality of the evidence, the court is satisfied that the prosecution has failed to discharge that burden in respect of both counts.

Also addressing the prosecution’s reliance on section 5 of the Public Order Act in support of the charge of unlawful assembly, Magistrate Mbye said their submission was “misconceived and cannot be sustained” because the accused persons have not been charged with any offence created under the Public Order Act.

According to the magistrate, it is a fundamental principle of criminal justice that an accused person must answer only the specific offence charged in the indictment and not an offence or statutory obligation which has not been alleged. “The prosecution cannot circumvent this principle by importing, through legal argument, statutory elements or obligations from an entirely different enactment in order to cure evidential deficiencies in the offence actually before the court. To permit such an approach would offend the requirement that every accused person be informed with precision of the nature and particulars of the offence alleged against them and would undermine the fairness of the criminal process,” Magistrate Mbye stated.

He further explained that the court finds that section 5 of the Public Order Act has no application to the charges and cannot be relied upon to establish, supplement, or expand the constituent elements of the offence of unlawful assembly and therefore the prosecution’s submissions founded on that provision are rejected and accorded no weight in the determination of whether a prima facie case has been established against the accused persons.