Magistrate dismisses prosecution’s application to recuse from case

Presiding Magistrate Ebrima Jaiteh of the Brikama Magistrates’ Court has dismissed the prosecution’s application for him to recuse himself from presiding over a case.

He made this order on Monday, 7th September 2015 whilst delivering ruling in the criminal case involving the Inspector General of Police against two accused persons: Saikou Conteh and Kebba Conteh
Delivering judgement, Magistrate Jaiteh disclosed that the prosecutor, Sergeant 2202 Fadera, applied for the said case to be transferred to a sister court because the bench advised the prosecution to withdraw the matter. He said the prosecutor argued that the trial was yet to reach at that stage and they were advised to withdraw the matter and the defence counsel, B. S. Touray in his reply, argued that the prosecution’s application lacked merit and could not run away from his shadow.

Magistrate Jaiteh further said the defence counsel submitted that it is obvious to all right thinking persons that the accused were dragged to court on grounds of personal prejudice and the court has a duty to ensure that procedures and processes are not abused. He stated that the defence counsel argued that the prosecution’s application lacked merit and should be dismissed.

He declared that by the prosecution’s application and the response of defence counsel, B. S. Touray, he must state clearly that the prosecution’s application to transfer the case to a sister court was not supported by any principle of law, statute, rule or regulation.

The magistrate pointed out that the prosecution’s allegation that the bench advised the prosecution to withdraw the charge against the 2nd accused person as the sole reason for the said court to transfer the case to a sister court is baseless and devoid of reason.

He remarked that the court has the duty to advise the prosecution and the defence on matters of procedure and law and that the court has a duty to ensure fairness and not to condone an abuse of court processes.

He explained that the magistrate is the moderator of judicial proceedings at the Magistrates’ Court, an umpire and a referee, citing the dictum by Savage JCA as he then was, who stated that “allegation of bias on the part of a trial judge, other than on the basis of pecuniary interest, must be supported by clear, direct, positive, unequivocal, and solid evidence from which real likelihood of bias could reasonably be inferred and not mere suspicion. Even the question and answers between the learned judge and the third appellant leaves some doubts in the minds of the people.”

Magistrate Jaiteh said the prosecutor Sergeant 2202 Fadera failed to provide any strong and convincing grounds and that the prosecution’s application to transfer the case is based on mere vague suspicions of whimsical, capricious and unreasonable allegation.

He remarked that by parity of reasoning, it should be noted that the principle used in determining bias should not be used to abuse the judicial system by allowing parties to raise all sorts of fanciful allegations against magistrates, hoping thereby to get them to recuse themselves so that they can choose the court they want.

Magistrate Jaiteh further remarked that in a small jurisdiction like The Gambia, this practice can be dangerous and should be frowned upon, stating that if the allegation of bias, fails to meet the real likelihood of bias test or the reasonable suspicion of bias, the allegation must be dismissed.

He stressed that the principle enunciated in the bias test is aimed at protecting the integrity, dignity, transparency, sanctity, and image of the court and the officers of the court.

The magistrate therefore declared that the prosecution’s application woefully failed the test of bias or reasonable suspicion of bias and accordingly dismissed the application.

Meanwhile, he ordered the prosecutor to continue with the cross-examination of the 2nd accused person.