FOROYAA Newspaper (Serrekunda)
9 July 2009
editorial
Without presumption of innocence there would be no need for a country to have judges and magistrates to preside over criminal cases.
The only reason why society has deemed it necessary to hire members of the judiciary and pay them from the public purse is because of the presumption that a person who is accused of a crime is innocent until he or she is proved or has pleaded guilty. This is why the tribunals which are supposed to determine innocence or guilt must be impartial and independent. They are duty bound to protect the liberty of the accused until he or she is convicted. The main concern of the court is to ensure that the person who is granted bail would appear before the court as and when one is required to do so as long as the person is not a recidivist who may be prone to committing the same crime after being released on bail to prepare for trial.
In our view, no matter how profound constitutional provisions are if they are not enforced by the judiciary they remain as mere words on paper. Justice is done and seen to be done if the rights granted by the constitution are given practical effect by the orders of the courts. It is the Courts which can make Gambians to have faith or otherwise, in the justice system.
This comes about when the magistrates and judges abide by the Constitutional provisions. For example, some decisions have been made for certain people who are held in custody to be released on bail. Section 122 of the Constitution paragraph b) " in addition to any other powers conferred on the Court, each of the superior courts shall in relation to any matter within its jurisdiction, have power to issue such orders and directions as may be necessary to ensure the enforcement of any judgment or order of the court."
The courts have power to enforce their orders. In this regard no one should be held in custody by any security apparatus if the court orders his or her release. To hold a person in custody in defiance of a court would amount to contempt of court.
On the other hand, if a person charged with a criminal offence, and appears before a court, section 24 subsection 3 makes it mandatory for the court to observe and ensure that the person: "shall be presumed innocent until he or she is proved, or has pleaded guilty;
b) shall be informed at the time he or she is charged, in a language which he or she understands and in detail of the nature of the offence charged;
c) shall be given adequate time and facilities for the preparation of his or her defense;
d) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice."
The accused person should therefore be the focus of a magistrate or judge at the inception of a trial. The person should be heard at the commencement of each case to know whether there are any obstacles to putting up a defense either by himself or herself or by a legal representative. The need for openness on the side of judges as they deal with cases is indicated in section 222 paragraph 8 b of the Constitution, which reads: "A public officer who exercises judicial functions shall be patient, dignified and courteous to all litigants, witnesses, legal practitioners and others in the exercise of such functions, and shall require similar conduct from his or her staff and others subject to his or her control."
Magistrates and Judges who could promote justice in a democratic society and contribute to Good Governance are those who perform their duties without fear or favour, affection or ill will in accordance with the dictates of truth and conscience.
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