Thanks Kejau for your thoughts on this rather disgraceful matter. Possible that the difficulty is in the initial reporting you originally brought to the "L".
I checked the story on The Point newspaper and its reportage did not mention any of the sections quoted in your material, e.g., section 25(1)(c), 127(1), and 127(2). This may be a function of your own interest in, and understanding of, the law. Section 25(1)(c) is easily understandable, but 127 generally deals with the ORIGINAL JURISDICTION of the Supreme Court. The layout of the case against the Caliph General appears not to be the ideal circumstance to trigger the Supreme Court's Original Jurisdiction in light of the fact that the matter is already before magistrates. As reported in The Point, the Defence is applying to the High Court, and this is a proper route to deal with the dispute (see Section 37 of the Constitution generally).
In particular
Section 37(4) states:-
"If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of the said sections 18 to 33 or section 36(5), that court may, and shall in any party so requests, refer the question to the High Court, unless, in the opinion of the subordinate court, the raising of the question is merely frivolous or vexatious"
Section 37 (5) states
"The High Court shall:-
(a) -----
(b) determine any question arising in the case of any person which is referred to it in pursuance of subsection (4),
and may, in addition to the powers conferred on it by section 5 (which relates to enforcement of the Constitution) make such other, issue such writ, and give such directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions of the said sections 18 to 33 or sections 36(5) to the protection of which the person concerned is entitled:
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law".
Kejau, considering the provocative nature of this case, the High Court may simply hide behind the proviso and decide that Brikama Magistrates' Court provides "adequate means of redress ...".
For me, another important angle is that a Gambian judicial officer must have the opportunity to redeem or stain his conscience. I would at least give him an opportunity to rule on a "no case submission" at the end of the prosecution case before engaging the jurisdiction of the High Court.
I do not second-guess the defence strategy but I would rather the Magistrate rules on a "no case submission" before considering next steps.
Sorry for the delay in my response but I was experimenting the idea of 'no internet' days
LJDarbo
LJDarbo
On Monday, 22 September 2014, 13:46, Y Jallow <[log in to unmask]> wrote:
Mawdo Baba:
Jammeh is indeed "monumentally insecure" adding to his inferior complexity, fetishes, paranoia and greed for power and fame. Recall years back he wanted to arrest "Sheriff" Dino Hydara from the same neighborhood (Wassadung/Foni) and when the arrest plan failed, Dino went into exile, now in Germany. Jammeh's insecurity, fears and discomfort with his own evil and those he humiliates will certainly catch up to him. It is clear that Jammeh doesn't find comfort, and he is very miserable. It is just a matter of time.
My solidarity with the Calipha and may God severely punish the source of Imam's open humiliation and all those conspiring. Ameen.
Warm regards as always...
"There is no god but Allah; & Muhammad (SAW) is His messenger"
Kind Regards,
Yero.
________________________________
Date: Sun, 21 Sep 2014 08:10:28 -0700
From: [log in to unmask]
Subject: Re: Defence Files Appeal in Caliph General's Case
To: [log in to unmask]
Kejau,
This has nothing to do with law. It is just a case of a monumentally insecure bully saying to the Cleric: "I will show you who is boss." I can envision the Calipha saying, "Allah's will be done. There is no power but God's." Ultimately, the bully will lose out, no matter how much he bullies the Calipha or how long it takes.
Baba
________________________________
Date: Sat, 20 Sep 2014 13:19:45 +0200
From: [log in to unmask]
Subject: Re: Defence Files Appeal in Caliph General's Case
To: [log in to unmask]
Thanks Baba and LJD,
I believe the magistrate erred in law as the contention is not interpretation under Section 127(1)(a) but under 127(1)(b):
(b)on any question whether any law was made in excess of the powers conferred by the Constitution or any other law upon the National Assembly or any other person or authority;
The contention was whether the 'lawful command' of the president for the country not to pray on the second day of Eid, was in fact law as prescribed under Section 7 of the Constitution. Yaya Jammeh must have thought he still is the military police commander of the whole country, as it is in the military that you see disobedience to a lawful command.
Kind regards,
Kejau
________________________________
Date: Sat, 20 Sep 2014 00:21:35 +0100
From: [log in to unmask]
Subject: Re: Defence Files Appeal in Caliph General's Case
To: [log in to unmask]
Kejau
This is a substantive dispute that must be decided in favour of the Caliph General, i.e., on any sensible interpretation of the pertinent law, he should be acquitted and discharged. To the extent that the right at stake is absolutely clear, the case should end at the prosecution phase through a successful "no case to answer" submission.
However, the ruling is right that the Magistrate Courts are competent to hear a case of this nature. Please refer my argument on the precise point when Karamba Touray asked me to look at the relationship between the Constitution and the "false information" law a few years ago. Refer to the excerpt below from "False information to public servant: the Constitution, and Section 114 of the Criminal Code". The material was published in several online papers. In pertinent part, I contended:
"... On the limited facts of the IGP v Momodou Lamin Nget, the Supreme Court, if it accepts jurisdiction, should rule for the defence by staying this prosecution as prayed for by Counsel. However, the issue concerns a possible conflict between the Constitution, and inferior legislation, and there is therefore no compelling argument for the Supreme Court to take jurisdiction at this level. Even if this is purely an issue of Constitutional interpretation, the Supreme Court may still decline jurisdiction depending on what section of the Constitution is implicated in a particular dispute. According to 127 (1) (a) of the Constitution, “the Supreme Court shall have an exclusive original jurisdiction (a) for the interpretation or enforcement of any provision of this Constitution other than any provision of sections 18 to 33 or section 36 (5) (which relate to fundamental rights and freedoms)”. As the substantive arguments against .Section 114 are in Chapter
IV of the Constitution - the fundamental rights and freedoms �C other, lower echelon courts are capable of deliberating on this matter ..."
The defence has a strong case and counsel should wait for a substantive judgement to consider next steps. He can actually succeed at the trial stage
LJDarbo
On Friday, 19 September 2014, 22:48, Baba Jallow <[log in to unmask]> wrote:
It is so inhuman to harass this innocent and well respected religious leader who has committed no crime at all against the constitution and laws of The Gambia. It is so tragic that in our country, the word and ego of the president trumps the dignity and constitutional rights of all the people and could be the basis of such brutal harassment against an innocent man. May the Just and True God punish the source of this naked injustice and all who help perpetrate it.
Baba
On Fri, Sep 19, 2014 at 1:57 PM, Kejau Touray <[log in to unmask]> wrote:
Defence Files Appeal in Caliph General's Case
>Share
>
>The lawyer for defendant, the sitting Caliph General of Sanghajor, Muhideen Hydara and the Alkalo of the village, Buyeh Touray, Antoumane Gaye, filed an application to the High Court in Banjul requesting a stay of execution as well as for the court to direct the magistrate court to refer the case to the Supreme Court as the competent and the appropriate court with the jurisdiction to hear cases like this.
>Readers will recall that Magistrate Omar Cham of the Brikama magistrate court on the 04 September 2014, dismissed the application of the defendant to refer the case to the higher Supreme Court, see our previous news article on the judgment delivered, Caliph General's Case.
>The defence counsel appeared at the magistrate court in Brikama, on 18 September 2014, to inform of this development, whilst another police prosecutor appeared for the assigned police prosecutor, Touray has been transferred and his replacement is yet to be available.
>The particulars of the appeal were that only the Supreme Court could hear cases such as this where there is a dispute that the authority, in this case the President, is not competent to legislate or 'give order' and that the case is in the purview of the Supreme as it is concerns interpretation of fundamental rights that only that court can interpret, as there was a difference in treatment.
>Read MoreComment (0)Hits: 0
>
>Date: Fri, 19 Sep 2014 14:16:28 +0200
>From: [log in to unmask]
>Subject: The Gambia Democracy Challenge - National Fundraiser
>To: [log in to unmask]
>
>
>The Gambia Democracy Challenge - National Fundraiser
>Share
>
>
> FOR IMMEDIATE RELEASE
>September 18, 2014
>National Fundraiser
>On Thursday September 11, 2014, an initiative called The Gambia Democracy Challenge was launched. Its purpose is to serve as the primary vehicle for mobilizing resources from all Gambians
>who recognize the fierce urgency we face as a nation. As is the case throughout history, nations that aspire to free themselves from the clutches of tyranny must draw from the goodwill and participation of their citizens to muster the required resources to see their struggle through. This is why a solemn appeal is being made to every one of our citizens aggrieved at what is happening to our nation and its people to donate at least ten dollars to a general fund to be managed transparently by a small team of custodians who are responsible only to the donors. With funds in hand, both the pace and direction of our struggle would be enhanced because of the inherent leverage that comes with having money in the bank.
>
>To succeed, participation in the challenge has to be broad in scope, sustained over time, and project numerical strength.
>Read MoreComment (0)Hits: 0
>
>
>
>
>
>Date: Fri, 19 Sep 2014 11:13:34 +0100
>From: [log in to unmask]
>Subject: Gambia Needs No Federal Constitutional Arrangement With Senegal
>To: [log in to unmask]
>
>
>More comments on LJD material. Gambians should not even dream of union with Senegal. http://www.kaironews.com/politics/the-gambia-needs-no-federal-constitutional-arrangement-with-senegal/
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