Magistrate ordered Accused to enter defence

The principal magistrate presiding over the case of UDP's campaign manager, Femi Peters, on Wednesday, March 3, over-ruled a no-case submission by the defence counsel Ousainou Darboe. Magistrate Kayode Olajibutu told counsel Darboe in a crowded Kanifing Court that his client, Femi Peters, had a case to answer, and therefore ordered the accused to enter his defence.

Ousainou Darboe in a previous court appearance, submitted a no-case to answer for Peters, who is standing trial on two counts of being in 'control of procession' and using a 'loud-speaker at a rally' held at Ebony Junction, Serrekunda Central without a permit from the IGP.

Delivering his ruling after quoting both the defence counsel and the prosecution,, Principal Magistrate Kayode ruled that the accused was the mastermind of the rally, and he was the one who signed the application and made a follow-up to confirm whether the application was approved, arguing that UDP was not in nature a person.

Kayode noted that the application was signed by the accused as the campaign manager, and the application was to hold a rally and the used of public address system. He stated that the mere fact that the accused was not using the public address system, will not convince the court that the accused did not used the instrument.

After considering the submission of the defence counsel, and the reply of the prosecution and his evidences, Kayode therefore over-ruled the defence counsel’s submission and ordered the accused to open his defence.       

Earlier, Mr. Darboe in his no-case submission, told the court that the evidences adduced in the case, particularly that of the fourth prosecution witness, showed the accused was not on trial. “It is the Constitution of The Gambia and the survival of democracy that are on trial,” he told the court.

Darboe submitted that after the prosecution had called their witnesses, the defence considered that no prima-facie evidence had been adduced by the prosecution to warrant the accused to enter his defence.

He argued that on count one, the accused was charged with 'control of procession' contrary to section 5 (5A), and 'holding a political rally'. The accused was also charged with using a 'loud-speaker on count two'.

Mr. Darboe said a no-case submission must be upheld when an essential element of the charge was not proven. Lawyer Darboe referred the court to the evidence of the first prosecution witness, who in his evidence, said that he received information that UDP was holding a rally at the Ebony Junction and upon his arrival at the rally he found the accused person sitting down.

“Where was the procession taking place?” Darboe asked. He stated that under cross examination PW1 admitted that it was the UDP who was holding the rally and not the accused. Darboe indicated that exhibit A was an application for permit by UDP to hold a rally at Ebony junction on the 24^th October, 2009 and copied to Independent Electoral Commission.

He said at the back of the application there was a minute to the IGP as thus, “UDP [was] requesting for a permit to use a public address system at a rally.” “Femi Peters did not apply for any permit; it was the UDP that applied for it. It is my submission that there is not only a lack of evidence to support the statement of offence of procession, but the particulars of offence which must support the statement of offence is completely at variance, but there is also no support that Femi Peters has applied for a permit,” Darboe argued.

Indeed the evidence of PW1, 2 and 3 all stated that it was UDP that held the rally and not the accused person, Darboe says.

Responding to the submission made by the defence counsel, the prosecuting officer, Inspector Kebba Fadera also submitted that evidences given by PW1 and 2 corroborated each other, adding that PW2 indicated that there was a procession that a group of people escorting a car. Fadera added that PW3 also did say that there was a procession of a group of people escorting a vehicle. Inspector Fadera told the court that all the witnesses were not showed a permit to hold a rally. He further added that PW4 told the Court that there was an application by the UDP to hold a rally, and it was signed by the accused person.

He said the defence did not dispute this fact. PW4 added that the accused went back to make a follow-up whether the application was approved. According to the Fadera the prosecution witness said that there was a rally and there was a public address system in use.