Can The President Interfere In Pending Criminal Cases?

Under Section 85 of the 1997 Constitution of the Gambia, the power to commence and/or discontinue criminal prosecutions is vested exclusively in the Director of Public Prosecutions (DPP), acting under the direction of the Attorney-General, the principal legal adviser of the Government.

That suffices it to say that the President cannot order for the discontinuation of the Faraba Banta incident in which the PIU shot and killed three people.

The President has no role, direct or indirect, in the commencement or discontinuation of criminal prosecutions! Those decisions are professional, technical decisions that, for good reason, are reserved for those who are legally qualified and competent to make legal determinations on the basis of the law and evidence in individual cases, as well as the purpose and objectives of the Constitution and other laws of the land. They are not and should not be political decisions.

Therefor the January 8 Press Statement from State House and the President’s purported discontinuation of the criminal prosecution against those accused of murder in the Faraba Banta incident, constitutes a legal nullity.

What then was the purpose of the Commission of Inquiry set up to investigate the incident? Why use government fund to pay for such a commission and the delay in taking action as recommended in the report of the commission? It is mind boggling that we have confusion between “Prerogative of mercy” and “interference in what should be a criminal process.” Where was the AG’s Chamber, the legal adviser to government in all of this?

The request by the villagers of Faraba is still under consideration by the Attorney General, and the Office of the President was only consulted for its views on the request in light of the fact that the Faraba Banta incident on 18 June 2018 was of such national tragedy and importance that it warranted the establishment by His Excellency, the President, of a Commission of Inquiry under Section 200 of the 1997 Constitution.

The AG’s chamber notes that the office of the President did not, and has never attempted to, interfere with the exercise of this discretion, and therefore considers the recent press release from the Office of the President as an “unfortunate choice of words”.

In our new found democracy the adherence to the rule of law and the independence of the judiciary must take center stage.

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