By Mafugi Ceesay
Justice Zainab Jawara-Alami of the Banjul High Court has on Friday ordered for the immediate release of Lieutenant General Saul Badjie and two others.
Badjie, a member of the Gambia Armed Forces was detained together with Major Landing Tamba and Warrant Officer Class 1 Musa Badjie.Their arrest and detention came following their return from Equatorial Guinea, where they were together with former President Yahya A.J.J Jammeh.
Saul Badjie and others say they were in detention since the 10th of January 2022 and have not been told the reason for their arrest.
The court held that their prolonged detention without a charge is a violation of their fundamental rights enshrined in the 1997 Constitution. She maintained that it is unlawful to keep someone in detention beyond 72 hours without a charge.
Justice Jawara refused to grant the application by the State to keep Saul and his two co-detainees in detention for 90 days.
The State lawyers argued that there is a need to detain Saul Badjie and the two others to enable them to investigate them further before charging them.
Saul Badjie’s lawyer, Sheriff Kumba Jobe argued that the application, if granted, would infringe his clients’ fundamental human rights. SK Jobe submitted that it is unlawful to detain someone without a charge beyond the prescribed time of law (3 days).
Justice Jawara asked the question, “whether there is a charge before this court?”
In answering the question, she said a charge is not a mere accusation. ‘It should be a formal charge, she added.
She said section 19 of the Constitution guarantees the right to liberty and security of every person. She added that no one should be subjected to arbitrary arrest and detention.
The Judge said it is very clear that Saul Badjie and the others were detained based on suspicion of committing a crime.
The Attorney General argued that a charge exists in the TRRC report, adding the findings of the truth commission suggests the commission of grave crimes by the three detainees.
The Judge disagreed with the Attorney General’s position saying TRRC has the mandate to investigate and make recommendations. The report should be submitted to the President in line with section 29 of the Act.
She relied on several decided cases to say Commission findings and recommendations cannot be enforced without court sanction. She held that the findings of the TRRC do not mean a charge.
“It is an investigating fact-finding body. It is not a court,” the Judge said.
She added: “The report of the TRRC is not a decision. It is not a court.”
She declared that those decisions of the TRRC need further steps, adding they are unenforceable on their own. She said indictment has to be brought before the court against the detainees.
“There is no charge before this honourable court against the Respondents (Saul Badjie and others), She said.
She said even the Attorney General in his affidavit in support is saying the three were held based on suspicion.
“They must be held on charges, not on suspicion,” she said.
She maintained that suspicion does not amount to a charge. She reiterated her position that any detention beyond 72 hours without a charge is unconstitutional.
“I decline to grant the reliefs sought in this application [by the Attorney General],” the Judge ruled.
She ordered for the three not to leave the country and must answer calls for questioning by investigators.