Case in limbo…Accused Imam still to be tried on sex abuse charges

Mar 23, 2015 News

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The case of the Imam accused of sexually assaulting nine boys while they attended classes at an East Coast Demerara Masjid is yet to be heard in the High Court. Islamic scholar, Nizam Ali, known as ‘Mufti’, of Lot 268 Section ‘C 5’ South, Turkeyen, Greater Georgetown has been committed to stand High Court trial since 2013 on nine counts of engaging in sexual intercourse with boys under the age of 12.
But the case is still to be heard. Back in 2012, Ali was arrested several times after allegations of sexual abuse surfaced against him.

He was charged with several counts of sexual activity with a child by abusing a position of trust and the preliminary inquiries into allegations were conducted before then Sparendaam Magistrate Alex Moore.
According to reports, the 33-year-old Imam was alleged to have sexually assaulted the nine boys where they usually go to take Quran and Arabic lessons from him, between December 2011 and January 2012.
Prosecutors alleged that these acts were committed while the accused had been in a trusted position as a religious teacher, and could be reasonably expected to have known of the trust reposed in him by the boys.
The Imam’s pretrial hearings were held in-camera at the Sparendaam Magistrates’ Court Demerara and the accused was represented by Attorneys-at-Law Nigel Hughes, Latchmie Rahamat and Peter Hugh.
After perusing the evidence brought before him during the preliminary inquiries, Magistrate Moore found that there was sufficient reason to send Ali for High Court trial. The decision came in 2013.
The scholar was released on bail and the case has not yet been slated to be called up at the Demerara Assizes.
A legal source, familiar with the case, explained that the case has been placed on hold due to the challenges to the constitutionality of some aspects of the Sexual Offences Act of 2010.
Since its passing, the Act had been successfully challenged twice in the High Court; the first time being 2012. Both matters are still to be determined at the level of the Appeal Court.
Late last year, Chief Justice Ian Chang (ag) deemed paper committals under the Sexual Offences Amendment Act 2010 unlawful and unconstitutional.
Chang’s ruling had stemmed from a successful challenge to the Act made by Attorney-at-Law Murseline Bacchus. He argued against a Magistrate’s decision to commit his client to stand trial in the High Court under the Act.
Bacchus, on behalf of his client, had moved to court for an order or rule nisi of certiorari directed to the Director of Public Prosecutions (DPP), the Commissioner of Police and Magistrate Sherdel Isaacs-Marcus herself, to show cause why her decision to commit his client to stand trial for the offence of rape should not be quashed on the grounds that the committal is null, void, unlawful and unconstitutional.
In his petition, Bacchus had submitted that he was not permitted cross-examination of the witness whose statements were filed by the Prosecution, nor was his client permitted to give evidence or call any witness in the proceedings before he was committed.
After listening to arguments from all sides, on November 14, last Chang said that paper committals under the Sexual Offences Act are unlawful as the accused is given no opportunity to defend him or herself in the Magistrate’s Court which is a breach of one’s constitutional rights.
According to the SOA legislation, no witnesses are required to attend the Magistrates’ court to give evidence and the Magistrate would make a verdict based on statements provided by the virtual complainant, investigating ranks along with complainant’s medical report and birth certificate.
However, Chang’s ruling noted that the Magistrate acted in violation of the Applicant’s rights under Article 144 (2) (d) and (e) when she disallowed cross-examination of the makers of prosecution witness statements tendered against the applicant in the preliminary inquiry.
It goes on to say that an accused or/defendant  shall be permitted to defend himself or herself before the court in person or by a legal representative of his or her own choice and shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.
These rights, Chang says, were violated.
On November 25, last, Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall filed an appeal to the decision; and also sought to have a stay of execution of the judgment and this was granted by Justice B.S Roy in the appeal court.
This means, the order by the CJ is now halted, pending resolution of this appeal.
It is under the same measure of the paper committal that Ali was subjected to a preliminary inquiry.
The legal source told this newspaper that the question now exists whether the case could be called up altogether because the constitutionality of the process is currently being questioned.
Meanwhile, an official from the CPA has said that the two boys who were taken into state care have returned with their families. The official expressed worry about the length of time this case is taking to be processed through the courts.
At that time, the Central Islamic Organisation of Guyana (CIOG) sent the Imam on leave pending the outcome of the investigation. It is unclear what his relation is to the organisation at present.
It is also this case that made headlines after it was claimed that the Director of Public Prosecutions (DPP), Shalimar Ali-Hack had attempted to interfere by instructing the police to release the man.
She recused herself from the case after vehemently denying the reports. Another senior official at the DPP’s chambers was then assigned to handle the case.

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