By Mariama Marong
Two men convicted and sentenced to five years’ imprisonment for indecent practices between males have appealed their conviction and sentence before the High Court.
Muhammed Jawo and Muhammed Krubally, who were convicted by Magistrate Isatou Jallow of the Brusubi Magistrates’ Court, have filed their appeal before Justice Omar Cham of the Special Criminal Division.
The appellants were charged with Indecent Practices Between Males, contrary to Section 147(1) of the Criminal Code, Cap. 10:01, Vol. III, Revised Laws of The Gambia 2009.
They pleaded not guilty but were subsequently convicted and sentenced to the maximum penalty of five years’ imprisonment under Section 147(1) of the Criminal Code.
Dissatisfied with both the conviction and sentence, the appellants filed a petition of appeal challenging the trial court’s decision on seven grounds.
On the first ground, they argued that the magistrate erred in law by convicting them when the prosecution failed to prove its case beyond reasonable doubt.
According to the appeal, the prosecution’s case relied solely on visual observation under poor lighting conditions. The appellants contended that the alleged incident took place at night in an incomplete building without electricity or any form of lighting.
They further submitted that the prosecution’s second witness admitted during the trial that he could not identify basic details, including the colour of their clothing, because of the darkness.
Despite this, they argued, the trial court accepted that the witness had clearly observed the alleged act.
The appellants maintained that the magistrate failed to properly assess the effect of the poor visibility and reached a finding that was unsupported by credible evidence.
On the second ground, they argued that the magistrate wrongly held that the evidence of the prosecution’s first and second witnesses corroborated each other.
They submitted that both witnesses were together throughout the incident and acted jointly, making the second witness’s testimony dependent on that of the first witness rather than independent corroboration.
The appellants argued that the trial court wrongly treated repetition of evidence as corroboration.
Under the third ground, they challenged the trial court’s evaluation of the evidence, pointing to what they described as conflicting testimony about the building where the alleged offence occurred.
They submitted that prosecution witnesses testified that the building had no roof, while the defence maintained that it had a concrete roof.
According to the appellants, the contradiction directly affected the issue of visibility inside the building, but the trial court failed to reconcile the conflicting evidence before reaching its decision.
The fourth ground alleges a violation of their right to a fair hearing.
The appellants argued that they elected to testify in the Sarahule language but that the court appointed court bailiff Kebba Sowe to interpret despite him not being a qualified interpreter.
They further submitted that they complained about inaccurate interpretation during the proceedings and that their lawyer applied for a change of interpreter and the expunging of the affected evidence.
According to the appeal, the trial court refused that application.
On the fifth ground, the appellants argued that the magistrate erred by holding that a medical certificate was irrelevant to the case despite its alleged contradiction of the prosecution’s evidence.
They submitted that the medical report was tendered through a witness who had no knowledge of its contents and that the maker of the report was never called to testify.
They further argued that although the report was admitted into evidence, the court later disregarded it instead of properly evaluating what they described as exculpatory evidence.
The sixth ground argues that the magistrate failed to resolve doubts in favour of the accused persons.
According to the appellants, doubts existed regarding visibility at the scene because the alleged incident occurred at night in an unfinished building without lighting.
They also cited conflicting evidence about whether the building was roofed, concerns over the reliability of the interpretation by an unsworn and untrained interpreter, and medical evidence which they argued did not support the charge.
The appellants contended that all these doubts were wrongly resolved against them.
On the seventh and final ground, they argued that the judgment was against the weight of the evidence.
In their petition, the appellants are asking the High Court to allow the appeal by substituting the custodial sentence with a fine on the basis that they are first-time offenders.
Alternatively, they are seeking an order setting aside both the conviction and the sentence delivered on 12 March 2026 and an order discharging and acquitting them.
