Banjul, Gambia (PANA) - A high court judge here Wednesday ordered former junta member and minister of Local Government and Land, Yankuba Touray, to open his defence, as the no-case submission made by his lawyer lacked merit.
Touray, one of the soldiers who took over power in The Gambia in 1994, was implicated in several killings and tortures at the early days of the coup.
He is accused of involvement in the killing of former Finance Minister Ousman Koro Ceesay and 11 soldiers in November 1994 and 1995.
The Gambia’s Truth, Reconciliation and Reparation Commission ordered the arrest of Touray for refusing to testify at the Commission’s public hearing last year.
Touray said he had a constitutional immunity and could not be compelled to testify before the Commission.
“I invoke my constitutional immunity… Anything that is against the 1997 constitution cannot stand. The 1997 constitution is the supreme law of the country,” he said.
“I do not recognize the legitimacy of this Commission when I have a constitutional immunity…”
The ruling followed a heated debate between the defence and the prosecution on no-case submission after the prosecution had declared the closure of their case a fortnight ago.
Delivering his ruling after going through the arguments of both the prosecution and the defence, the trial judge intimated that he had listened keenly to the oral arguments on the issue of no case submission.
Justice Jaiteh observed that, in his opinion, there was only one issue for determination which was whether the suspect had a case to answer, adding that in as much as he looked at the testimony, and the argument of the defence counsel in details in order to ensure fairness, he would only limit his comments, observation and findings to the law as it related to no case submission in The Gambia.
After citing sections and the relevant provisions of the law earlier cited by the parties with regard to a no case, Justice Jaiteh said that “to determine there is no case to answer may properly be made and upheld when there has been no evidence to prove an essential element of the alleged charge, or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable court could convict on it”.
The practice of submission of no case to answer, according to the presiding judge, is known to the high court in this jurisdiction and is widely used pursuant to Section 208 of the Criminal Procedure Code and the Practice Note of Lord Chief Justice Parker as applicable in England.
In this case, Justice Jaiteh further observed that he needed not no deal with credibility of the witnesses or weight of their evidences.
He said the question he had to determine was whether the evidence produced by the prosecution had been discredited in cross-examination or whether the evidence adduced was manifestly unreliable that it would not be safe to convict.
“A submission of no case was also a powerful reinforcement of the right of the accused to silence conferred upon him by the law. The question is, has the prosecution produced evidence to support an allegation of the offence charged, has the prosecution established a prima facie case against the accused person?” Justice Jaiteh observed.
The trial judge further upheld that the question he should also ask himself was whether the prosecution had produced evidence to support an allegation of the offence charged and to that, he must hasten to answer in the positive.
“I believe the evidence adduced by the prosecution is such that it requires some explanation from the accused person of what actually happened at his house in Kololi on the fateful day in question. I must state clearly that the prosecution has adduced direct and circumstantial evidence before this honourable court linking the accused person to this case.
“Therefore, a prima facie case has been made out against the accused person and the argument on the submission of no case to answer lacks merit and is hereby dismissed and the accused person is now called upon to open his defence,” Justice Jaiteh upheld, before adjourning the case to next week.
Touray is being tried on a single count of murder since last year for his alleged participation in the murder of Ousman ‘Koro’ Ceesay, the late junta finance minister who mysteriously died 25 years ago.
Since his arrest and subsequent trial last year, Touray has been in detention at the state central prison at Mile 2.
He has however denied the charges.
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