By Dawda Faye
Justice Ebrima Jaiteh of the High Court in Banjul is expected to rule on Yankuba Touray’s claim of constitutional immunity. This development came up when Yankuba Touray was asked on 8 July, 2019, to take his plea on the murder charge against him, but he pleaded his constitutional immunity.
When the case was called, the attorney general and minister of Justice, Abubacarr Tambadou, announced his representation for the state along with A.M. Yusuf as well as Counsel Abubacarr. Defence Counsel Sissoho appeared on behalf of Yankuba Touray.
Abubacarr Tambadou told the court that the matter was set for plea taking, and urged the court to read out the charge to the accused. The presiding judge then read the charge to the accused and asked him whether he was guilty or not, but he maintained his constitutional immunity.
Justice Jaiteh then told the court that the charge was read to the accused which he understood but held on to his immunity plea. He further stated that the court shall enter not guilty plea.
Minister Tambadou explained that the court should enter not guilty plea because of the refusal of the accused not to enter his plea and claim of constitutional immunity. He noted that that should be viewed as a challenge to the court’s jurisdiction to hear and determine the matter. He adduced that the challenge could not be ignored.
He argued that under these circumstances, the general claim of constitutional immunity such as claimed by the accused was ambiguous. He stated that they did not know the category of immunity the accused was claiming. He further said that the accused could not abrogate the power to determine his immunity.
The presiding judge then continued that the accused had the right not to say anything, noting that the burden lies on the prosecution to prove their case beyond reasonable doubt.
Minister Tambadou also noted that the immunity the accused was claiming could only be a defence, and like all defences in criminal trial, it is the court that can determine whether the defence could be upheld or not. “If the court will agree with me that the position of the accused in claiming constitutional immunity is a challenge to the jurisdiction of the court, it may refer to Section 127 of the constitution or referral to the Supreme Court for interpretation,” he told the court.
He said that it was his submission that the court to act on the side of caution in view of the claim of constitutional immunity by the accused. He added that if the court would proceed with the matter despite the challenge of jurisdiction, the prosecution wished for an adjournment. He cited Section 226 of the CPC because the prosecution is in the process of amending the indictment to add at least ten additional counts of murder and serious offences.
He noted further that because of the amendment, the prosecution needed to serve all the provisions in order for the accused to prepare his defence.
Counsel Sissoho, representing Yankuba Touray, told the court that the proposed amendment was not before the court and those amendments had nothing to do with the trial. He argued that the state did not refer to any Section of the 1997 constitution, noting that Section 127 does not arise. He urged the court to refer the matter to the Supreme Court.
Justice Jaiteh will make his ruling on 15 July, 2019.