I was approached by Mr Demba Baldeh (Demba), an Associate Editor of Gainako Online Newspaper (GON), to share my thoughts on whether a person serving a prison sentence can be granted bail in fresh and entirely unrelated criminal proceedings. Demba was curious by a report in The Point Newspaper (11/02/14) asserting that Principal Magistrate Hilary Abeke of the Banjul Magistrates’ Court has granted former Secretary General and Presidential Affairs Minister, Dr Njogu Bah (Dr Bah), “bail in the sum of D500, 000 with two Gambian as sureties, and one of the sureties must swear to an affidavit of means”. It would be recalled that Dr Bah is serving a two-year sentence imposed by the Special Criminal Court presided over by the now disgraced former judge, Justice Nkea, in a separate criminal matter.
In essence, Demba simply asked whether there “is a legal ground to grant someone bail while they are already serving a jail sentence?”
The question of bail is significant especially in a criminal justice system espousing the principle of “innocent until proven guilty”. Inherent in the principle is the public value that seeks to avoid deprivation of liberty on a mere unproven allegation of criminality. In a normal judicial system, courts are generally inclined to grant bail unless there are gripping reasons not to in all the circumstances of a particular case.
Although a relatively minor case, granting Dr Bah bail when he is serving a prison sentence raises a complex legal question. Even if bail is available, what level of court can grant it considering he was sent to prison by the High Court in an unrelated matter that is clearly not the subject of proceedings before a magistrates’ court.
According to Section 99(1) of the Criminal Procedure Code, Volume III, Cap 11:01, Laws of The Gambia, 2009:
When a person, other than a person accused of an offence punishable with death
or imprisonment for life, appears or is brought before a court on any process or after
being arrested without a warrant, and is prepared at any time or at any stage of the
proceedings to give bail, the person may in the discretion of the court be released upon
his or her entering in the manner hereinafter provided into a recognisance, with or without
a surety or sureties, conditioned for his or her appearance before the court at the time
and place mentioned in the recognisance, Act No. 11 of 1994, Act No. 2 of 2002).
A further stipulation of the bail regime states:
Where the execution of a recognisance is a condition of the release of a person, that
person shall be released as soon as the recognisance has been executed and if he or
she is in prison or police custody, the court shall issue an order of release to the officer in
charge of the prison or other place of detention and the officer on receipt of the order
shall release him or her (Section 101 (1) of the Criminal Procedure Code).
A non-legal reading of Section 101(1) of the Criminal Procedure Code may erroneously conclude that a magistrate can indeed terminate a bona fide prison sentence by purporting to grant bail to a convict appearing before him in a completely separate matter. The Criminal Procedure Code precluded the occurrence of any such event by the express statement that “Nothing in this section or in section 99 of this Code shall be deemed to require the release of a person liable to be detained for some matter other than that in respect of which the recognisance was executed” (Section 101 (1) of the Criminal Procedure Code). Simply stated, the magistrate has no authority to grant Dr Bah bail for his current sentence.
If counsel for Dr Bah applies for bail on the exclusive argument that he “had being denied his fundamental right of fair trial and fair hearing within a reasonable time,” the Magistrate was simply agreeing that the matter before him is bailable. Pragmatically, and assuming there are non-legal developments we are unaware of, the Magistrate should take judicial notice of the well known fact that Dr Bah is serving a two year prison sentence in another matter and consequently refuse counsel’s application for bail. Even if that particular sentence is on appeal to the Gambia Court of Appeal, and I am not aware of any such pending process, a Magistrate has no authority to grant bail in circumstances that would effectively nullify a bona fide current sentence of a Superior Court.
In the right circumstances, the Gambia Court of Appeal can, exceptionally, grant bail pending a decision on appeal against sentence. According to the Court of appeal Rules:
Where the Court or the court below admits an appellant to bail pending the
determination of his or her appeal on an application by him or her duly made, the
Court shall specify the amounts in which the appellant and his or her surety or sureties
(unless the Court directs that no surety is required) shall be bound by recognisance, and
shall direct, if it thinks right to do so, before whom the recognisances of the appellant
and his or her surety or sureties (if any) may be taken (Section 59, The Court of Appeal
of The Gambia Act – Subsidiary Legislation, Administration of Justice, Volume II,
Cap 6:02, Laws of The Gambia, 2009)
For further amplification of section 59 of the Court of Appeal Rules, please refer to Forms 16 and 17 as set out in the appendix to the Rules. Assuming all requisite timeframes and other rules-based protocols were complied with, the Court of Appeal has the legal authority to grant bail to Dr Bah if the circumstances are regarded as appropriately compelling.
In sum, and in light of the layout of Dr Bah’s legal circumstances, the answer to Demba’s enquiry is that even if he complied with the bail condition of “D500, 000 with two Gambian as sureties, and one of the sureties must swear to an affidavit of means” as reportedly granted by Principal Magistrate Hilary Abeke, he would still not be released. Impossible, except where Professor Jammeh wants him out, and he is merely using the purported authority of a magistrate to legitimise his wish. Although both of Dr Bah’s alleged offences are abuse of office cases, the particulars of the offences are different. In the manner they came before the courts, there is no nexus between the cases and the Magistrate can have no current authority to link them, much less nullify a Special Criminal Court sentence which his grant of bail can be seen as purportedly effecting.
Unless there are things happening that we don’t know about, granting bail is utterly inconsequential. It has no effect and Dr Bah stays put at Mile 2. With the independence anniversary around the corner, we may be dealing with the rudimentary stages of a pardon assuming the reporting of what transpired in court was not hopelessly incompetent. Notwithstanding Dr Bah’s demonstrated propensity to lawlessness as a Cabinet-level operative, I wish him well and hope he is released from questionable prison custody.
Lamin J Darbo