Attorney General of The Gambia v Momodou Jobe

The Parliament of The Gambia, adopting the ordinary procedure for a law that did not amend the Constitution, passed the Special Criminal Court Act 1979. The Act established the Special Criminal Court to try all criminal offences that involved misappropriation and theft of public funds and property. Section 7 provides:

“(1) Any person who is brought to trial before the court shall not be granted bail unless the magistrate is satisfied that there are special circumstances warranting the grant of bail. (2) Before bail is granted under this Act the accused shall be ordered, — (a) to pay into court an amount equal to one third of the total mount of moneys alleged to be the subject matter of the charge or pledge properties of equivalent amount as guarantee; and (b) to find at least two sureties who shall pay into court an amount equal to one third of the total amount alleged to be the subject matter of the charge or pledge properties of equivalent amount as guarantee. (3) Any money or property paid into court or pledged under this Act shall be forfeited to the state in the event of the accused jumping bail.”

Section 8 provides:

“(1) Where a complaint is lodged to the police to investigate any person suspected of having committed an offence in respect of which public fund or public property is affected, the police shall immediately apply to a magistrate for an order to be made freezing any accounts operated in the name of the person being investigated or in any other name or an account of which he is a signatory. (2) The police may also apply to a magistrate to freeze the account of any other person suspected of operating an account on behalf of the person being investigated. (3) The police may also seize any property of the suspect or any other property held by any person on his behalf. (4) Any property seized by the police under this section shall be returned to any claimant who satisfies the court that he acquired that property lawfully. (5) Any person — (a) who fails to come forward to prove that a property seized from him was acquired lawfully; or (b) who fails to satisfy the court that he acquired the property seized from him lawfully, commits an offence and is liable on summary conviction to a term of imprisonment of not more than seven years and of not less than five years.”

Section 9 provides:

“The Inspector General of Police shall publish in the Gazette the names of all persons whose accounts have been frozen under this Act.”

Section 10 provides:

“(1) Where any account is frozen under this section, no bank shall pay out any moneys from that account unless the Inspector General of Police by writing under his hand approves any such payment. (2) No person shall pay any money owed to any person whose account has been frozen under this section except through the bank. (3) Any person who contravenes the provisions of this section commits an offence …”

The respondent was arrested on one charge of stealing from his employer, a public bank, and one of fraudulent false accounting. He appeared before the Special Criminal Court and was remanded in custody. While awaiting trial he brought an action against the Attorney-General in the Supreme Court claiming a declaration that the Special Criminal Court Act 1979 violated his right to personal liberty under section 15 of the Constitution^F1 and the protection from having his property compulsorily acquired in section 18 of the Constitution. Bridges C.J. dismissed the application. The Court of Appeal allowed in part an appeal by the respondent and held that sections 7, 8, 9 and 10 of the Act of 1979 were unconstitutional and void.

On the Attorney-General's appeal to the Judicial Committee: —