Reports from State house say that President Adama Barrow has accepted an appeal from the community of Faraba for the discontinuance of the prosecution of the officers of the Police Intervention Unit as well as the civilians standing trial for their role(s) in the unfortunate Faraba Banta incident in June 2018.
The Community, through the Alkalo of the village, Mr. Omar Kujabi, wrote a letter to the President, accompanied by a sworn affidavit requesting, among other things, for the withdrawal of criminal charges in the matter ‘‘to promote true reconciliation’’, peace, and stability in the village.
Additionally, the community stated that they were satisfied and appreciative of the responsible leadership demonstrated and acts of compassion that His Excellency, President Adama Barrow and his government had undertaken after the incident, such as the visit by the President to the community in the immediate aftermath of the incident, the setting up of a commission of inquiry and appointment of a coroner as well as his decision to act on the recommendations of the investigative commission, among other gestures.
Based on the foregoing, the president has accordingly accepted to respect and grant the wishes of the community, particularly families of the victims, to immediately withdraw all the charges against the PIU officers and civilian perpetrators concerned.
By the same token, His Excellency, the President has also accepted to lift the suspension meted out on the Director of Geology Department and the Executive Director of National Environment Agency.
It could be recalled that villagers in Faraba Banta protested against illicit and environmentally hazardous sand mining in their village that had affected their agricultural lands resulting in serious consequences on their livelihoods. The intervention of the police intervention force led to the killing of three people who were shot by the PIU. A commission of inquiry set up by the Government subsequently found that the Police acted with disproportionate force, and recommended that those responsible for the killings should be brought to justice.
One may wonder why the President and by what legal powers he commanded to order for the discontinuation of those prosecutions. We also learnt that a Government White Paper was also issue for the justice to prevail and bring into book those responsible. The President has never acted on the recommendations of the Commission of Inquiry and with this latest development of ordering the discontinuation of the prosecutions, critics believe the President has acted not only in direct contradiction of the findings of the Commission of Inquiry, but also the White Paper, which essentially reflected his own Government’s policy positions on the recommendations of the Commission.
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. 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.
The power conferred on the DPP must be NOT be confused with the President’s power to exercise the prerogative of mercy under Section 82 of the Constitution. That Presidential power only comes into play AFTER judicial proceedings have closed and a conviction entered by a court of competent jurisdiction. In those cases, the President acting on the advice of Committee of the Prerogative of Mercy may decide to commute a sentence imposed by a court of law, or pardon convicted felons. However, Section 82 does not grant the President any power to interfere with pending criminal cases. President Barrow’s decision to do so in this case, contrary to the letter and spirit of the Constitution, is unlawful and lacks legal effect. It cannot be justified on the basis of an appeal by the local community!! Meanwhile the Office of the Attorney General maintains that The request made 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. It went further to affirm 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.