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Momodou
Denmark
11835 Posts |
 Posted - 19 Apr 2007 : 22:28:59
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COURT MARTIAL -
DEFENCE FAULTS PROSECUTION’S CASE
Lamin Camara, counsel for Captain Bunja Darboe, Captain Abdoukarim Jah, Captain Pierre Mendy and Lieutenant Momodou Alieu Bah has faulted the prosecution’s case in the on going court martial.
The learned counsel has urged the court to acquit and discharge his clients on all the charges preferred against them for the prosecution’s failure to prove the case beyond reasonable doubt. Camara’s submission is contained in a written address filed at the court martial.
Camara indicated that the prosecution called ten witnesses to prove the charges leveled against the accused persons. He said in a criminal trial of this magnitude and gravity, the law had laid down some minimum benchmarks which have to be met in order to secure a conviction.
For Captain Bunja Darboe, he said the law requires that for count one to be sustainable against him. The elements, in fact all the ingredients will have to be proven. He further submitted that the court requires that there must be cogent evidence to show that Captain Darboe (the first accused) counseled or procured people to commit mutiny. In his view, there is no iota of evidence from all the prosecution witnesses that any mutiny was in the offing. He noted that section 35 (1)(3) is not the offence creating section for the charge as stated in count one and is therefore not sustainable. According to him, the definition of mutiny is contained in section 2 of the Gambia Armed Forces Act.
On count two, the learned counsel submitted that the statement of offence in count two is not in consonance with the particulars of offence.
“the reason is that in count two, the first accused person (Bunja Darboe) is charged with three others for the offence of causing or conspiring with others to cause mutiny contrary to section 4 (7)(b) of The Gambia Armed Forces Act. On the other hand, the particulars of offence are a narrations that explain the offence of conspiracy to overthrow, to wit coup d’etat. Thus the charge as laid out in count two is materially defective which cannot be cured at this moment in time. My Lord this defect is the cause of the uncertainty as to what the accused person is charged with and should be struck out. My Lord, it is trite law that a charge should and must be laid out as near as possible to the language contained in the penal code.
However, where two possible offences are contained in the legislation/penal code, the charge should be framed in such a way as to precisely and categorically tell the accused person what exactly is he or she being charged with. Thus I submit that in count two, “causing or conspiring…..” cannot be in the alternative. It can only be either or, that is causing or conspiring. Only one of this two adjective should be contained in this charge. My Lord, the same argument goes for the statement of offence as laid out in count one and is similarly materially defective. Thus I urge this court to strike out count one too for being uncertain,” he remarked.
The learned counsel relied on the case of R vs. MOLLOY (1921) 2K.B. 364 and the case of R vs CAIN and others. He also relied on the case of R vs. WILMOT (1933) 29 COX 652 to support his argument.
On count three, the learned counsel said, “there is no need for recourse to chambers dictionary for the definition of mutiny, it is thoroughly defined in section 2 thereto and quoted supra. It is preposterous for anyone to suggest even in the slightest that the Commander-in-Chief in the person of a civilian president is a military officer, thus section 61 (1) and 188 (2) of the 1997 Constitution does not avail the prosecution to prove the charge of mutiny. In fact, no such mutiny took place in the entire evidence of all the prosecution witnesses.
On count five, Camara noted that Captain Bunja Darboe with three others are also charged with treason contrary to section 35 (1) (a) of the criminal Code. He said apart from the cautionary statement of the accused person. Exhibit T, U and AB, no credible evidence was led to substantiate or corroborate the allegations of treason. He said the only prosecution witness to testify on procurement, counseling and treason is PW8, Captain Seckan. He submitted that Seckan allegedly testified as to the conversation that took place between him and the first accused. He said the testimony of Seckan is highly suspect and should be taken with a pinch of salt. He said, “the testimony is highly unreliable for many reasons;
1. The witness lied under oath when he said that he was not arrested, but put under protective custody.
2. That he contradicted himself and said under cross examination that “Yes I am the first person to be arrested.”
3. That he took out two candles from inside his table drawer to offer as charity for the success of the alleged coup.
4. That he wrote both cautionary and voluntary statements.
5. He is a tainted witness.
6. His evidence has a purpose to serve in that he was promoted to the rank of Captain after March 21st, 2006.
Furthermore and even most importantly, the charge of treason requires a mandatory corroboration under section 38 of the criminal code cap 10 volume 111 of the laws of the Gambia and it states; “A person charged under section 35, 36 and 37 of this code shall not be convicted on the uncorroborated testimony of one witness.”
Camara pointed out that Captain Seckan’s testimony is not reliable. He further pointed out that the exhibits tendered in the cause of the entire trial are not sources of independent corroboration either, in particular exhibit M.
He said the first accused person in the voire dire (trial within trial) vividly testified to the inhuman and brutal acts of torture at the hands of the state security agents to the point of breaking his hand to secure a confession and Exhibit H (the alleged coup statement) allegedly found in the office file of the first accused by PW1 Abdoulie Sowe, Detective 1203 Boto Keita, PW9 Lamin Cham and PW10 Nfally Jabang are a figment of their own imagination with respect to the discovery of Exhibit H.
He added that the statements from all the prosecution witnesses are concocted and not supported by any evidence, in particular the diary of action, Exhibit Q and R did not contain the said discovery.
In addition, PW10 Nfally Jabang also said he would not know if the said Exhibit H left the investigation panel at anytime. My Lord it is common knowledge that Exhibit M were both aired on The Gambia Radio and Television Services as attested to by the accused,” he remarked.
Camara further stated that the prosecution is left grouping and fumbling in the dark recesses of the prosecution evidence for any source of corroboration.
“My Lord, there is none and therefore count five fails woefully. My Lord, the burden of proof in criminal prosecution is not accomplished by the quality of the prosecution witness, but by the quality and cogency thereof. This is what is lacking in the state/prosecution case,” he remarked.
On count six, Camara said the conspiracy charge preferred against Captain Bunja Darboe is not also supported by any cogent evidence to warrant the court to convict on it. He said the main trust of prosecution evidence to prove this charge of conspiracy to commit treason is predominantly the cautionary statement.
“My Lord, a charge of conspiracy to overthrow a democratically elected government must be supported by independent testimony of truthful witnesses. Conspiracy presupposes the meeting of the minds of all the accused persons, namely 1st accused Captain Bunja Darboe, 2nd accused Captain Yaya Darboe, 3rd accused Captain Wassa Camara and 4th accused Lieutenant Pharing Sanyang for an illegal enterprise. It is my submission that no evidence has been led of any conspirational enterprise between 1st, 2nd, 3rd and 4th accused persons.”
“My Lord what actually transpired between former Chief of Defence Staff, Colonel Ndure Cham and any other accused person cannot be the basis of an inference for conspiracy between the 1st, 2nd, 3rd, and 4th accused persons. The prosecution sought to rely on Exhibit N and N1, an alleged tape recording of the meetimg that took place between Corporal Mbaye Gaye and Colonel Ndure Cham. This Exhibit is very unhelpful to the court as it has not been listened to. However, Corporal Mbaye Gaye himself stated that he recorded his conversation with Colonel Ndure Cham. There is no mention of the 1st, 2nd, 3rd, and 4th accused person in the testimony of Corporal Mbaye Gaye. However, assuming with conceding that they are mentioned, the court did not listen to the tape and could not know what is on it. The court cannot and should not be asked to go on a voyage of discovery on its own. The onus is on the state to provide the evidence for the charge. My Lord, the evidence of a co-accused with respect to any allegation contained in the charge in particular, their statement cannot be the source of the conspiracy theory. The statement of the accused person is admissible against himself and himself only,” he said.
He stated that section 32 (2) of the Evidence Act is particularly relevant and applicable here and it reads;
“Where more persons than one are charged jointly with a criminal offence and a confession by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement as against any such other person in whose presence it was made unless any of such other persons adopted the said statements by words or conduct.”
He remarked, “the prosecution in an attempt to proof the conspiracy theory/charge against the first accused belaboured on evidence which is even circumstantial, that is, the fact that Captain Wassa Camara, the 3rd accused went to the Abuko Earth Station. My Lord, conspiracy cannot be proven by the activity of an individual alone.”
He said for the actions of the accused persons to amount to conspiracy, they must have agreed to execute the illegal unlawful enterprise to wit, coup d’etat.
See next edition of Foroyaa for the continuation of the story. We will try to lay hand on the prosecution and defence counsel’s submission for the next edition of this paper.
Source: Foroyaa Newspaper Burning Issue
Issue No. 43/2007, 16 - 17 April, 2007
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A clear conscience fears no accusation - proverb from Sierra Leone |
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Momodou
Denmark
11835 Posts |
Posted - 19 Apr 2007 : 22:31:38
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COURT MARTIAL - DEFENCE FAULTS PROSECUTION’S CASE
PART 2
Lamin Camara, Counsel for Captain Bunja Darboe, Captain Pierre Mendy, Captain Abdoukarim Jah and Lieutenant Momodou Alieu Bah had told the Honourable Court Martial that the prosecution in the ongoing criminal case against his clients had endeavoured very hard to willingly proof the charges preferred against his clients and corroborate it with the most unconventional sources of evidence of corroborative value. Camara made this submission in a 26 page written address filed at the court.
Lawyer Camara reminded the court that Captain Pierre John Mendy, Captain Abdoukarim Jah and Lientenant Momodou Alieu Bah are all charged with failure to report mutiny contrary to section 47 (e) of The Gambia Armed Forces Act, concealment of treason contrary to section 36 (a) of the Criminal Code and concealment of treason contrary to section 36 (b) of the Criminal Code. The definition of mutiny in section 2 of the Gambia Armed Forces Act means; “a combination of two or more persons subject to this Act or between two persons at least one of whom is subject to this Act”
(a). “To overthrow or resist lawful authority in the Armed Forces cooperating therewith or any part thereof”
(b). “ To disobey such authority in such circumstance as to make subversive of discipline, or with the object of avoiding any duty or service against or in connection with operation against the enemy; or”
(c ). “To impede the performance of any duty or service in the Armed Forces or any Forces cooperating therewith or any part thereof”
On count four, Mr. Camara submitted that the charge is preferred against Captain Mendy, Captain Jah and Lieutenant Bah. He said in the entire gamut of the trial, there is no knowledge of any mutiny or knowledge of mutiny imputed to the aforesaid accused persons. He said none of the witnesses testified to any mutiny among the Army.
He said, “knowledge is a condition for concealment as one cannot conceal anything that is not within his or her knowledge. The count thus fails.” On counts seven and eight, Camara said the charge of concealment of treason in count seven is not supported by any plausible evidence to warrant a conviction. He argued that none of the witnesses testified that Captain Pierre Mendy, Captain Abdoukarim Jah and Lientenant Momodou Alieu Bah had any knowledge of treason being planned by anybody. He said Mendy and Jah disassociated from their cautionary statements which the prosecution seeks to rely upon to prove this charge on the ground that it is involuntary.
“The fifth accused person’s (Captain Jah) confessional statement, Exhibit Y, was not witnessed by an independent witness as is evident from the different dates on the statement. The statement, Exhibit Y, is of little or no probative value and the court martial should not rely on it for any evidentiary purpose. In the circumstances, therefore, count seven fails against the fifth accused person. Unlike the fifth accused person, the sixth accused person, Captain Pierre John Mendy entered his defence and testified under Oath and even subjected himself to the cross examination of the prosecution. This evidence is cogent, consistent, reliable and truthful. He was at no time informed by any one of the alleged coup, but was forced to write that he was informed by RSM Alpha Bah. However, RSM Alpha Bah, the alleged originator of the information is at large and has not testified to that effect, thus there is no independent corroboration of the statement of the accused person, assuming without conceding that the court is reminded to relying on it. Thus, in the premises, this charge falls flat and remains unproven. The 7th accused person, Momodou Alieu Bah, made it categorically clear, not withstanding the circumstances under which his cautionary statement, Exhibit W, was written and that he did inform some people about the alleged coup. Unlike accused persons fifth and sixth, he told one Mr. Jatta, the orderly to Colonel Cham and Abba Badjie of the Military Intelligence and Lieutenant Solomon Jammeh, the very same day in the premises. Therefore counts seven and eight fall against the 7th accused person, 2nd Lieutenant Momodou Alieu Bah.
The 7th accused had used a “reasonable endeavour” to prevent commission of the offence by informing a superior military intelligence who is in better stead to nip the activity in the bud. He could not afford to be a passive bystander and watch. On the other hand, the fifth accused person, Captain Aboukarim Jah, and the sixth accused person, Captain Pierre Mendy, were not informed at all. They had no notion or clue, not even the slightest of the alleged treasonable offence of an impending planned coup d’etat. My lord, I urge this Honourable Court to acquit and discharge the 5th, 6th and 7th accused persons on the 7th and 8th charges for the prosecution’s dismal failure to proof them beyond reasonable doubt,” he said.
The learned counsel cited the decision of the Court of Appeal of Enugu Division in Basil Ikwunne and Others Vs the Sate (2005) VOL LRCNCC 269 held on what the prosecution must prove to sustain a charge of conspiracy;
“In a charge of conspiracy, the prosecution has the burden to prove not only the incholate or rudimentary nature of the offence, but also the persons with a common intention and purpose to commit a particular offence.”
Camara said in the case of EDET OKONKWO VS THE STATE (2002) 3 LRCNCC 15 PAGE 18, it was held that: “Evidence in corroboration must be independent testimony direct or circumstantial, which confirms in some material particular not only has an offence been committed, but that the accused has committed it.”
He said quite apart from the lack of corroboration from the prosecution witnesses, the evidence of the said witnesses are materially inconsistent. He said the material discrepancies entitled the accused person to an acquittal in the case. He said in the case of EDET OKONKO VS THE STATE, it was held that; “it is now well settled that the contradictions on the evidence of witness for the prosecution to affect conviction, they must be sufficient to raise doubt as to the guilt of the accused person.”
“There are material inconsistencies in the discovery of Exhibit H, the cautionary statement of Captain Adboukarim Jah, the fifth accused person. On whether the evidence of Captain Seckan is reliable and a source of independent corroboration, my lord (PW8) Captain Seckan’s entire evidence is highly suspicious. The entire evidence has a purpose to serve as well. My lord PW8 was arrested, infact the first to be arrested. He was detained, a cautionary and voluntary statement obtained from him with a view of charging him. He also stated that he took charity for the success of the alleged coup, in a nutshell my lord, I submit that Captain Seckan is a tainted witness and unreliable,” Camara remarked.
He stated that in the case of ANSELEM AKALONU VS THE STATE (2005) VOL 4 LRCNCC 123, the court of Appeal in Port Harcourt defined a tainted witness thus “a tainted witness is one who is an accomplice or who by the evidence he gives has his own interest or purpose to serve and as a result has a tendency to cover up the true facts of the case.”
Lamin K. Mboge’s Address
Lamin K. Mboge, the counsel for 2nd Lieutenant Pharing Sanyang (4th accused) and Corporal Samba Bah (8th accused) has urged the Honourable Court Martial to hold that the prosecution has not prove it’s case against his clients and that the court should acquit and discharge them accordingly.
In his fifteen page address to the Court Martial, lawyer Mboge said it is true that Lieutenant Pharing Sanyang and Corporal Samba know about the foiled coup. But they have discharged the legal burden by;
(a) The 4th accused reporting to his commanding officer, Serigne Modou Njie by calling him on phone.
(b) The 8th accused telling the 4th accused to report to his superior and he is not part of it which has been done.
Mboge said Lieutenant Pharing Sanyang is charged with the following;
Count one: Counselling or procuring persons to commit mutiny contrary to Section 35(1)(c ) of The Gambia Armed Forces Act, cap 19, volume 111 laws of The Gambia 1990.
Count two: Causing or conspiring with others to cause mutiny contrary to section 47 (b), laws of The Gambia 1990.
Count three: Mutiny contrary to section 46 of The Gambia Armed Forces Act, cap 19, volume 111 laws of The Gambia 1990.
Count five: Treason contrary to section 35(1)(a) of the criminal code, cap 10, volume 111, laws of the Gambia 1990.
Count six: Conspiracy to commit treason contrary to section 35(1)(g) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
The learned lawyer stated that the eight accused, Corporal Samba Bah is charged for the following;
Count four: Failure to report mutiny contrary to section 47(e) of The Gambia Armed Forces Act, cap 19, volume 111, laws of The Gambia 1990.
Count seven: Concealment of treason contrary to section 36(a) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
Count eight: Concealment of treason contrary to section 36(b) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
Analyzing the prosecution’s case, Mboge said the 4th and 8th accused persons acknowledged in their statements and in their defence that they heard of the foiled coup, but the 4th accused said in his defence that he reported to his commanding officer, Serigne Modou Njie, page 2 of his cautionary statement which discharges him of the legal burden imposed on him. He further stated that the 8th accused on the other hand told the 4th accused to report the matter and he is not interested in it. According to Mboge, the second prosecution witness, Major Ebrima Bah has not said anything about the 4th and 8th accused persons, and therefore he did not see the need to address on his evidence.
He also told the court that the 8th prosecution witness, Captain Seckan and the following prosecution witnesses 3rd, 4th, 6th and 7th did not say anything about his clients. Mboge said, “In the cautionary statement of the 4th accused, he stated that he was threatened that he would be killed and his family.
“The 9th prosecution witness, Lamin Cham, obtained the statement of the 4th accused and he was challenged under cross examination. He denied any use of force, torture and intimidation before obtaining the 4th accused person’s cautionary statement, but he could not say whether the 4th accused was tortured before his statement was taken.” Mboge said.
However, my client has not taken any step to perform the duty assigned to him by threat, ie, to disconnect a fuse at Gamtel, Telegraph road, Banjul which shows that he has not consented to the coup. He further stated that with that fear, he went to Captain Serigne Modou Njie to report the matter but was not in his office and that was the time he informed the eight accused, Corporal Samba Bah, about it. The eight accused advised him to desist from it, ie, involvement which shows that he has not consented to it as well.
Again when the 4th accused was informed by Nfamara Jammeh, he told him to call and inform Serigne Modou Njie, which he did. This clearly shows that the 4th accused has not consented to the order from the Ex C.D.S and he has taken steps to inform his commanding officer on telephone. The said Nfamara Jammeh was not called as a witness. Therefore the statement and evidence of the 4th accused remained unchallenged and uncontradicted and should be believed by this court. The 4th accused said when the commanding officer came, he briefed him and deployed him at the airport to secure it.”
He said, “The statement of the 4th accused is sufficient to discharge him of the legal burden imposed on him because;
(1) There is no evidence of conspiracy against him. He has not agreed with anyone to commit treason.
(2) He has not counseled or procured anyone to commit mutiny in his statement and the whole proceedings there is no evidence to that effect.
(3) He did not cause or conspire with anyone to commit mutiny.
(4) He did not commit any mutiny because he obeyed a lawful command from the commanding officer to go and secure the airport for the president.
(5) He has not committed any treason contrary to the facts contained in the charge sheet.”
He submitted that in order to do justice to the 4th accused, he should be discharged and acquitted of all the counts against him because the prosecution has failed to prove it’s case against him.
Mboge said, “Furthermore, the 8th accused said ‘when the 4th accused informed him, he advised him not to be part of it.’ He further advised him to report the matter to the commanding officer Serigne Modou Njie. My lord, this is sufficient evidence to show that he is not guilty to section 47(e) of The Gambia Armed Forces Act. On the 2nd charge of concealment of treason contrary to section 36(a), there is also no evidence that the 8th accused has conspired with Captain Abdoukarim Jah, Captain Pierre John Mendy, Lt Momodou Alieu Bah, Babou Janha and Private Alhagie Nying, between January and March 2006 in Banjul. There is no nexus in the prosecution’s case linking the accused with the charges. The only person who talked to the 8th accused about the coup is the 4th accused and he advised him to desist from it. This shows that the 8th accused has no mens rea and no actus reus to be guilty of the offences charged.”
Editor’s Comment:
One of our reporter’s went to the Department of state for Justice Yesterday and was told that the Acting Director of Public Prosecution, Emmanuel Fagbenle went to a workshop. We will try and get the prosecution’s address from him and published it in our next edition.
Source: Foroyaa Newspaper Burning Issue
Issue No. 44/2007, 18 - 19 April 2007 |
A clear conscience fears no accusation - proverb from Sierra Leone |
 |
|
|
Momodou
Denmark
11835 Posts |
Posted - 19 Apr 2007 : 22:31:38
|
COURT MARTIAL - DEFENCE FAULTS PROSECUTION’S CASE
PART 2
Lamin Camara, Counsel for Captain Bunja Darboe, Captain Pierre Mendy, Captain Abdoukarim Jah and Lieutenant Momodou Alieu Bah had told the Honourable Court Martial that the prosecution in the ongoing criminal case against his clients had endeavoured very hard to willingly proof the charges preferred against his clients and corroborate it with the most unconventional sources of evidence of corroborative value. Camara made this submission in a 26 page written address filed at the court.
Lawyer Camara reminded the court that Captain Pierre John Mendy, Captain Abdoukarim Jah and Lientenant Momodou Alieu Bah are all charged with failure to report mutiny contrary to section 47 (e) of The Gambia Armed Forces Act, concealment of treason contrary to section 36 (a) of the Criminal Code and concealment of treason contrary to section 36 (b) of the Criminal Code. The definition of mutiny in section 2 of the Gambia Armed Forces Act means; “a combination of two or more persons subject to this Act or between two persons at least one of whom is subject to this Act”
(a). “To overthrow or resist lawful authority in the Armed Forces cooperating therewith or any part thereof”
(b). “ To disobey such authority in such circumstance as to make subversive of discipline, or with the object of avoiding any duty or service against or in connection with operation against the enemy; or”
(c ). “To impede the performance of any duty or service in the Armed Forces or any Forces cooperating therewith or any part thereof”
On count four, Mr. Camara submitted that the charge is preferred against Captain Mendy, Captain Jah and Lieutenant Bah. He said in the entire gamut of the trial, there is no knowledge of any mutiny or knowledge of mutiny imputed to the aforesaid accused persons. He said none of the witnesses testified to any mutiny among the Army.
He said, “knowledge is a condition for concealment as one cannot conceal anything that is not within his or her knowledge. The count thus fails.” On counts seven and eight, Camara said the charge of concealment of treason in count seven is not supported by any plausible evidence to warrant a conviction. He argued that none of the witnesses testified that Captain Pierre Mendy, Captain Abdoukarim Jah and Lientenant Momodou Alieu Bah had any knowledge of treason being planned by anybody. He said Mendy and Jah disassociated from their cautionary statements which the prosecution seeks to rely upon to prove this charge on the ground that it is involuntary.
“The fifth accused person’s (Captain Jah) confessional statement, Exhibit Y, was not witnessed by an independent witness as is evident from the different dates on the statement. The statement, Exhibit Y, is of little or no probative value and the court martial should not rely on it for any evidentiary purpose. In the circumstances, therefore, count seven fails against the fifth accused person. Unlike the fifth accused person, the sixth accused person, Captain Pierre John Mendy entered his defence and testified under Oath and even subjected himself to the cross examination of the prosecution. This evidence is cogent, consistent, reliable and truthful. He was at no time informed by any one of the alleged coup, but was forced to write that he was informed by RSM Alpha Bah. However, RSM Alpha Bah, the alleged originator of the information is at large and has not testified to that effect, thus there is no independent corroboration of the statement of the accused person, assuming without conceding that the court is reminded to relying on it. Thus, in the premises, this charge falls flat and remains unproven. The 7th accused person, Momodou Alieu Bah, made it categorically clear, not withstanding the circumstances under which his cautionary statement, Exhibit W, was written and that he did inform some people about the alleged coup. Unlike accused persons fifth and sixth, he told one Mr. Jatta, the orderly to Colonel Cham and Abba Badjie of the Military Intelligence and Lieutenant Solomon Jammeh, the very same day in the premises. Therefore counts seven and eight fall against the 7th accused person, 2nd Lieutenant Momodou Alieu Bah.
The 7th accused had used a “reasonable endeavour” to prevent commission of the offence by informing a superior military intelligence who is in better stead to nip the activity in the bud. He could not afford to be a passive bystander and watch. On the other hand, the fifth accused person, Captain Aboukarim Jah, and the sixth accused person, Captain Pierre Mendy, were not informed at all. They had no notion or clue, not even the slightest of the alleged treasonable offence of an impending planned coup d’etat. My lord, I urge this Honourable Court to acquit and discharge the 5th, 6th and 7th accused persons on the 7th and 8th charges for the prosecution’s dismal failure to proof them beyond reasonable doubt,” he said.
The learned counsel cited the decision of the Court of Appeal of Enugu Division in Basil Ikwunne and Others Vs the Sate (2005) VOL LRCNCC 269 held on what the prosecution must prove to sustain a charge of conspiracy;
“In a charge of conspiracy, the prosecution has the burden to prove not only the incholate or rudimentary nature of the offence, but also the persons with a common intention and purpose to commit a particular offence.”
Camara said in the case of EDET OKONKWO VS THE STATE (2002) 3 LRCNCC 15 PAGE 18, it was held that: “Evidence in corroboration must be independent testimony direct or circumstantial, which confirms in some material particular not only has an offence been committed, but that the accused has committed it.”
He said quite apart from the lack of corroboration from the prosecution witnesses, the evidence of the said witnesses are materially inconsistent. He said the material discrepancies entitled the accused person to an acquittal in the case. He said in the case of EDET OKONKO VS THE STATE, it was held that; “it is now well settled that the contradictions on the evidence of witness for the prosecution to affect conviction, they must be sufficient to raise doubt as to the guilt of the accused person.”
“There are material inconsistencies in the discovery of Exhibit H, the cautionary statement of Captain Adboukarim Jah, the fifth accused person. On whether the evidence of Captain Seckan is reliable and a source of independent corroboration, my lord (PW8) Captain Seckan’s entire evidence is highly suspicious. The entire evidence has a purpose to serve as well. My lord PW8 was arrested, infact the first to be arrested. He was detained, a cautionary and voluntary statement obtained from him with a view of charging him. He also stated that he took charity for the success of the alleged coup, in a nutshell my lord, I submit that Captain Seckan is a tainted witness and unreliable,” Camara remarked.
He stated that in the case of ANSELEM AKALONU VS THE STATE (2005) VOL 4 LRCNCC 123, the court of Appeal in Port Harcourt defined a tainted witness thus “a tainted witness is one who is an accomplice or who by the evidence he gives has his own interest or purpose to serve and as a result has a tendency to cover up the true facts of the case.”
Lamin K. Mboge’s Address
Lamin K. Mboge, the counsel for 2nd Lieutenant Pharing Sanyang (4th accused) and Corporal Samba Bah (8th accused) has urged the Honourable Court Martial to hold that the prosecution has not prove it’s case against his clients and that the court should acquit and discharge them accordingly.
In his fifteen page address to the Court Martial, lawyer Mboge said it is true that Lieutenant Pharing Sanyang and Corporal Samba know about the foiled coup. But they have discharged the legal burden by;
(a) The 4th accused reporting to his commanding officer, Serigne Modou Njie by calling him on phone.
(b) The 8th accused telling the 4th accused to report to his superior and he is not part of it which has been done.
Mboge said Lieutenant Pharing Sanyang is charged with the following;
Count one: Counselling or procuring persons to commit mutiny contrary to Section 35(1)(c ) of The Gambia Armed Forces Act, cap 19, volume 111 laws of The Gambia 1990.
Count two: Causing or conspiring with others to cause mutiny contrary to section 47 (b), laws of The Gambia 1990.
Count three: Mutiny contrary to section 46 of The Gambia Armed Forces Act, cap 19, volume 111 laws of The Gambia 1990.
Count five: Treason contrary to section 35(1)(a) of the criminal code, cap 10, volume 111, laws of the Gambia 1990.
Count six: Conspiracy to commit treason contrary to section 35(1)(g) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
The learned lawyer stated that the eight accused, Corporal Samba Bah is charged for the following;
Count four: Failure to report mutiny contrary to section 47(e) of The Gambia Armed Forces Act, cap 19, volume 111, laws of The Gambia 1990.
Count seven: Concealment of treason contrary to section 36(a) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
Count eight: Concealment of treason contrary to section 36(b) of the criminal code, cap 10, volume 111, laws of The Gambia 1990.
Analyzing the prosecution’s case, Mboge said the 4th and 8th accused persons acknowledged in their statements and in their defence that they heard of the foiled coup, but the 4th accused said in his defence that he reported to his commanding officer, Serigne Modou Njie, page 2 of his cautionary statement which discharges him of the legal burden imposed on him. He further stated that the 8th accused on the other hand told the 4th accused to report the matter and he is not interested in it. According to Mboge, the second prosecution witness, Major Ebrima Bah has not said anything about the 4th and 8th accused persons, and therefore he did not see the need to address on his evidence.
He also told the court that the 8th prosecution witness, Captain Seckan and the following prosecution witnesses 3rd, 4th, 6th and 7th did not say anything about his clients. Mboge said, “In the cautionary statement of the 4th accused, he stated that he was threatened that he would be killed and his family.
“The 9th prosecution witness, Lamin Cham, obtained the statement of the 4th accused and he was challenged under cross examination. He denied any use of force, torture and intimidation before obtaining the 4th accused person’s cautionary statement, but he could not say whether the 4th accused was tortured before his statement was taken.” Mboge said.
However, my client has not taken any step to perform the duty assigned to him by threat, ie, to disconnect a fuse at Gamtel, Telegraph road, Banjul which shows that he has not consented to the coup. He further stated that with that fear, he went to Captain Serigne Modou Njie to report the matter but was not in his office and that was the time he informed the eight accused, Corporal Samba Bah, about it. The eight accused advised him to desist from it, ie, involvement which shows that he has not consented to it as well.
Again when the 4th accused was informed by Nfamara Jammeh, he told him to call and inform Serigne Modou Njie, which he did. This clearly shows that the 4th accused has not consented to the order from the Ex C.D.S and he has taken steps to inform his commanding officer on telephone. The said Nfamara Jammeh was not called as a witness. Therefore the statement and evidence of the 4th accused remained unchallenged and uncontradicted and should be believed by this court. The 4th accused said when the commanding officer came, he briefed him and deployed him at the airport to secure it.”
He said, “The statement of the 4th accused is sufficient to discharge him of the legal burden imposed on him because;
(1) There is no evidence of conspiracy against him. He has not agreed with anyone to commit treason.
(2) He has not counseled or procured anyone to commit mutiny in his statement and the whole proceedings there is no evidence to that effect.
(3) He did not cause or conspire with anyone to commit mutiny.
(4) He did not commit any mutiny because he obeyed a lawful command from the commanding officer to go and secure the airport for the president.
(5) He has not committed any treason contrary to the facts contained in the charge sheet.”
He submitted that in order to do justice to the 4th accused, he should be discharged and acquitted of all the counts against him because the prosecution has failed to prove it’s case against him.
Mboge said, “Furthermore, the 8th accused said ‘when the 4th accused informed him, he advised him not to be part of it.’ He further advised him to report the matter to the commanding officer Serigne Modou Njie. My lord, this is sufficient evidence to show that he is not guilty to section 47(e) of The Gambia Armed Forces Act. On the 2nd charge of concealment of treason contrary to section 36(a), there is also no evidence that the 8th accused has conspired with Captain Abdoukarim Jah, Captain Pierre John Mendy, Lt Momodou Alieu Bah, Babou Janha and Private Alhagie Nying, between January and March 2006 in Banjul. There is no nexus in the prosecution’s case linking the accused with the charges. The only person who talked to the 8th accused about the coup is the 4th accused and he advised him to desist from it. This shows that the 8th accused has no mens rea and no actus reus to be guilty of the offences charged.”
Editor’s Comment:
One of our reporter’s went to the Department of state for Justice Yesterday and was told that the Acting Director of Public Prosecution, Emmanuel Fagbenle went to a workshop. We will try and get the prosecution’s address from him and published it in our next edition.
Source: Foroyaa Newspaper Burning Issue
Issue No. 44/2007, 18 - 19 April 2007 |
A clear conscience fears no accusation - proverb from Sierra Leone |
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