By Lamin Njie
The mother of the complainant in the rape trial of Bubacarr Keita on Wednesday began giving evidence in a trial that continued to attract national attention.
The businesswoman who lives in Latrikunda Sabiji began her testimony at 11:40am on Wednesday after the judge tolerated her when she said she could not stand due to pain in her legs.
“Bring her a chair closer to the witness box,” Judge Momodou SM Jallow asked court officials when the witness warned that her legs hurt when she stands for long. The witness then sat, held the Quran in her two hands and swore to speak only the truth, as a packed courtroom watched.
In her testimony, the witness said the complainant was her last female child out of four female children that included Bubacarr Keita’s former wife. She had testified that she was blessed with 11 children, eight of which are surviving.
“[I have] four girls and four boys, the other three are deceased,” the woman told the court and later named the four girls when the prosecuting attorney Alasan Jobe asked her to.
When the prosecuting attorney asked her to confirm if the first witness in the trial was her daughter, the witness said she was.
“Was she ever married?” Jobe asked her. The woman, in replying, said: “Yes.”
According to the witness, her daughter was married to Bubacarr Keita when the prosecuting lawyer enquired who she was married to.
“Is he the same Bubacarr Keita as the accused person? Look at him,” the prosecuting lawyer asked the witness.
The witness said: “Yes, he is the one.”
She will continue with her testimony on Thursday.
Keita, 29, is standing trial for allegedly raping his former wife’s 15-year-old sister. He denies any culpability.
A different witness was supposed to take the witness box on Wednesday but for protest from Keita’s lawyers.
The protest came over a notice of additional summary filed by state prosecutors on Tuesday to enable a witness who wasn’t previously listed among witnesses of the prosecution to testify.
“My Lord we will be objecting to this witness being called,” Keita’s lawyer Lamin Camara quickly said when the prosecuting lawyer Alasan Jobe told the judge the prosecution would like to call on Pa Modou Johm as its second witness.
According to Camara, the notice of additional summary ran counter to Section 175(D) and 175(C) of the Criminal Procedure Code.
“My Lord if you look at the notice of additional summary, it has all the hallmarks of trial by ambush. For the reason that… My Lord, these notices do not contain anything that can be called summary if your Lordship looks at the statements,” Camara argued.
He then continued: “What appears to be a summary is not even a summary. And with the permission of the court My Lord, can I draw your attention if you have one, to the summary of the statement of [witness]. Two lines. The summary of a statement, two lines. And with the permission of the court My Lord if I can read the summary. [It says] ‘this witness is a sister to the complainant, she will explain the nature of her relationship with the accused person when she was in the compound and everything she knows about the case’. Where is the summary, is that summary?”
Camara then told the judge even if the Criminal Procedure Code did not give the scope of the summary, the constitution guarantees one’s right to fair hearing.
“[It] says you need to put the accused person in a stead to know the evidence that is coming in,” Camara said. “And this summary, there is no statement attached. So what are you telling the defence? Nothing. That amounts to trial by ambush.”
Camara then told the judge the same applies in the case of Pa Modou Johm saying the proposed witness’s statement summary comes in just three lines.
“The witness is a former boyfriend of the complainant. He was questioned by the police at the time the case was reported. He will explain the nature of the relationship,” Camara said reading from the notice of additional summary.
“This is not a summary,” he insisted further.
He then said if the prosecution had attached the witness statements, they would not have objected “because we would have been given an opportunity to know what the witnesses are coming to say”.
“With no such statements, we have no idea of what these witnesses are coming to say. That amounts to trial by ambush which is not allowed in criminal proceedings,” Camara added.
Senior state counsel Alasan Jobe fired back that the defence lawyer made a ‘very bizarre’ objection.
“My Lord a summary is defined under the Merriam-Webster dictionary as ‘covering the main points succinctly’. That is one definition of what a summary is. Other definitions under the same dictionary is that summary is an ‘abstract or an abridgement’.
“My Lord a summary need not contain all relevant information. My Lord a summary is just an overview of something. My Lord we believe that we summary of evidence as contained in the documents we filed is exactly what the said witnesses are coming to talk about,” Jobe told the judge.
Jobe also addressed his opponent’s argument the proposed witnesses statement were not attached saying, “My Lord this is very surprising to us”.
He said: “Because it is not all witnesses who make statements at the police. My Lord oral evidence is as good as documentary evidence as far as it passes the test of relevance as provided for under Section 3 of the Evidence Act.
“My Lord the same mode of drafting the summary of evidence is the same mode of drafting summary of evidence as it is contained in the notice we filed. It’s the same mode of drafting we used in the bill of indictment, the same three lines that counsel for the defence is complaining is the same three lines that we have in the bill of indictment and he never objected to it.”
Jobe continued his argument by telling the judge he agrees with the defence counsel that the accusation leveled against the accused is very serious.
He however warned: “And the threshold to prove rape is very high and it behooves on the prosecution to call on any material witness that will help it in proving its case beyond reasonable doubt.”
Jobe then sparked another protest from the defence when he said for Pa Modou Jobe to testify was because the defence had made reference to his relationship with the complainant.
“Counsel for the defence is the very one who made reference to his relationship with the complainant,” Jobe said.
Camara blasted back: “Sorry My Lord, can we rectify that anomaly. That is a mis-statement, my learned friend is misdirecting the court, that is not true. I don’t know Pa Modou Johm, I don’t know him from Adam. I only asked PW1, ‘do you know one Pa Modou Johm’, she said ‘yes’. ‘Who is he?’ She said, ‘it’s the boyfriend’. Did I make that statement? It’s their witness who said he is the boyfriend to the complainant. So he is misleading the court.”
Jobe who waived his right to reply on points of law asked that the objection by the defence counsel could be sustained except the part they were trying to mislead the court.
“We do not intend to mislead the court,” Jobe clarified.
Jobe went ahead to explain that the testimonies of the proposed witnesses are so vital to their case that their exclusion will case an unfair prejudice to us.
“We therefore urge this honourable court to dismiss the objection and allow the witnesses to testify based on the notice we filed. In any case, we would like this honourable court to take cognizance of Section 175(C)(2) of the CPC,” Jobe then prayed.
The judge in an easily ruling said: “The Honourable court rules that no superior court of The Gambia would allow any trial by ambush in a criminal trial especially for a serious commission allegedly. The prosecution not having given any gist of what the testimony of their statements would be to avail the defence with the opportunity to prepare its case as in the instance clearings which having made in sufficient disclosure and being in one of such requirement, the honourable court would maintain defence counsel’s objection against the calling of the two named witnesses as notice filed from yesterday to beef up the in focal theme and serve such requisite witness statements as the prosecution wish to call with time given to or opportunity given to the defence to prepare against the prosecution’s case. That’s all.”
The prosecuting lawyer had earlier on brought to the attention of the court two typos on the notice of additional summary: the witness’s surname and Criminal Code. The lawyer said the witness’s surname should be ‘Johm’ and not ‘Jobe’ as written on the document and ‘Criminal Procedure Code’ instead of ‘Criminal Code’.
ICC Sanctions Symposium: The Unprecedented Attack Against the ICC Prosecutor–The Pitfalls of Being a National of a ‘Less-Powerful’ State
On September 2, 2020, the Trump administration announced that the United States had designated the International Criminal Court (ICC) Prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division (JCCD), Phakiso Mochochoko, for sanctions. These actions are a backlash from the ICC’s investigations in Afghanistan and Palestine. President Biden on April 2, 2021, ended the sanctions and the visa restrictions, thereby rescinding Trump’s orders.
My reflection will focus on the pitfalls of such sanctions on individuals from ‘less-powerful’ states given the countries of origin of both Prosecutor Bensouda from The Gambia and Mr. Mochochoko from Lesotho. Bensouda was the main target of the sanctions given that she was granted approval in March 2020 by the Appeals Chamber of the ICC to investigate possible crimes committed in Afghanistan since May 2003. US forces are alleged to have ‘committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence’ in Afghanistan.
The Woman from The Gambia
I must confess that I have a shared history with Bensouda who was born in The Gambia like me. As a girl growing up in The Gambia, which is a male-dominated society, I had stood up against bullying in the community, fought against injustice in my school, and gave myself a voice on family matters to the extreme annoyance of the male members. As a result, from an early age, I wanted to be an advocate for women’s rights like Bensouda. I find myself, like the majority of women in Africa, in spaces where I continuously have to contend with gender challenges, stereotypes, prejudices, and discrimination. ‘A woman’s place is the home’ and ‘women cannot be leaders’ are two discriminatory statements, which pervaded my environment and which I had continually challenged. Our society and its gender system are deeply patriarchal illustrating how embedded restrictive gender norms define who gets into leadership positions. We share a mutual detestation for injustice, and love and belief in supranational organs and human rights bodies to ensure justice for victims of atrocities. She is a feminist and lawyer and an awe-inspiring role model for African women and girls. Bensouda’s leadership of the ICC is also premised and informed by her position as a woman from a small West African country. This insight is essential to how her commitment to ensuring justice for women can be seen in the strategic direction of the Court in challenging impunity for rape and sexual exploitation of women and children in war and conflict.
Business as Usual
Through Executive Order 13928 on ‘Blocking Property of Certain Persons Associated With The International Criminal Court’, U.S. officials added both Fatou Bensouda, and Phakiso Mochochoko to the Specially Designated Nationals and Blocked Persons List (SDNs). The assets of persons on the list are generally blocked and U.S. persons are generally prohibited from dealing with them. These sanctions came in the wake of the 2019 policy on visa restrictions for them and their immediate family members. The orders against these staff of the Court are an attack on the international justice system. Bensouda was acutely aware of the potential challenges, including political pressure, on her path as the prosecutor of war crimes, crimes against humanity, and genocide. In 2012, in responding to what kind of ICC she hoped to pass on at the end of her term, she stated: ‘We’ll prove that [the Court] is a truly independent judicial body. It won’t happen overnight. Our legal institution is going to continue to operate in a difficult political environment and attacks against it won’t subside.’
During the period when the sanctions were imposed on Bensouda, we saw the deafening silence of the African Union due in part to its turbulent relations with the Court. This is partly due to the primary focus of the Court on African conflicts and State-sponsored violence, which had angered African leaders who have accused the Court of bias against the continent. Despite earlier support by Africa of Bensouda’s election and the hope that it would have led to better relationships between the continent and the Court, Bensouda has been accused of being anti-African as the primary person responsible for investigating and prosecuting crimes. This criticism and hostility were spearheaded by her own country, where then-President Yayha Jammeh, in 2016, withdrew from the Rome Statute and left the ICC labeling it as the ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’. The country has since reversed its decision to withdraw from the ICC under President Barrow’s administration.
When the sanctions were announced, the Gambian Government under President Barrow expressed dismay noting that it constitutes ‘gross interference in the mandate, independence and impartiality of the Court in the fight against impunity for perpetrators of the most serious crimes of international concern’. While the Gambian civil society has generally been supportive of her, it has accused her of turning a blind eye to atrocities committed by Jammeh and lack of investigation to bring #JammehtoJustice. In 2020, Bensouda noted that she directed ‘ICC prosecutors to examine Jammeh’s record, but his actions were deemed to fall short of war crimes, genocide, or crimes against humanity that constitute an ICC case’. The operation of the Jammeh’s death squad, the ‘Junglers’, was only recently known. There has been a general curiosity as to whether she would be asked to testify before The Gambia’s Truth, Reconciliation, and Reparations Commission, given her experience as Jammeh’s Deputy Director of Prosecution in 1995 and former Minister of Justice from 1998-2000, and that she was adversely mentioned for corruption of justice.
Bullying Tactics
Trump’s administration tried to force the Court into submission by bullying Bensouda and Mochochoko with hegemonic tactics including sanctions. It is opined that these are bullying tactics on the Court’s staff who are from less powerful nations. As she has noted, ‘some believed that I should just stop there and let it go because it concerns a very powerful [state],’ but for her ‘it’s about the law. It’s not about power’. These sanctions also mean that in the future, nationals of less powerful States may not get the top and most strategic positions in the ICC for fear that more powerful nations could deny them necessary support or place obstacles before them in the execution of their mandate. Such effect can only further alienate less powerful nations from the international justice system and hence turn the ICC either into a moribund institution or place it completely in the hands of more powerful nations, or both. However, The Gambia’s recent campaign to protect the Rohingya from genocide, which led to provisional measures issued by the International Court of Justice (ICJ) that Myanmar must take immediate action to protect the Rohingya group, is a reminder that small countries matter. Despite their size, small countries like The Gambia and their nationals can play a major role in the international justice system.
At the heart of Trump’s actions against Bensouda is a rejection of the ‘international liberal order’. This was in line with his ‘America First’ agenda that placed national interests and values at the core of all his policies. His actions bolster the argument that the imperial nature of American foreign policy forms a part of it, illustrating the contradictory nature of their accountability stance. Starting from the Nuremberg trials, the American concept of accountability seems to revolve around victor’s justice without any genuine interest to submit themselves to the same standards they require of others. Besides, there are also contradictions in the USA’s dealings with the Court. For instance, the U.S. has voted in the Security Council to refer situations such as those in Libya to the ICC but does not want the ICC to investigate international crimes allegedly committed in states like Afghanistan that have exercised their sovereign right or prerogative to become parties to the Rome Statute. What this practically means is that the U.S. is de facto above international law and community.
Conclusion
That the complicated relationship between the U.S. and the ICC further deteriorated under the Trump administration, which was epitomized by open hostilities against the Prosecutor, is an example of how convenient it is for a powerful country to cast such nationals from less powerful states as ‘thorn-in-the-flesh’. The sanctions send one message to the rest of the world: the U.S. cares only about itself and its special interests. Moreover, the sanctions are a direct threat to international human rights and to the individuals who are tirelessly working to end impunity. The U.S. betrayed its legal and moral duty of holding perpetrators accountable. Consequently, Bensouda should not be faulted for picking a legitimate and necessary fight. The defiance of Bensouda to continue with the investigations sums up the temerity of a woman who detests injustice, bullying, arbitrariness and impunity. The commitment to justice, and accountability is what drives her.
The writer, Satang Nabaneh, is a Post-Doctoral Fellow at the Centre for Human Rights, Faculty of Law, University of Pretoria, and the Founder and Executive Director of Law Hub Gambia. She currently pursues research interests including international human rights law and monitoring mechanisms, democratization in Africa, and Gambian constitutional law. The article was first published on the blog OpinioJuris.