By Alhagie Jobe

Dictator Yahya Jammeh has sacked a long serving Permanent Secretary at the Office of the President over a leaked letter to popular US based Gambian news organization, The Fatu Network, this medium has confirmed.

According to our sources, Isatou Auber was sacked after the publication on The Fatu Network website on June 27 of a leaked reply letter dated November, 12 2015 from the Office of The President and addressed to the Solicitor General and Legal Secretary at the Ministry of Justice with Subject: State VS Lamin AMS Jobarteh in which President Jammeh gave an executive decision that criminal charges against Mr Jobarteh cannot be dropped.

Mrs Auber signed the said letter on behalf of the Secretary General that was dispatched to the Solicitor General and Legal Secretary at the Ministry of Justice conveying the executive directive.

Meanwhile, The Fatu Network would like to make it very clear that we did not obtained the said letter from Mrs Auber neither do we have any contact with her. This is another manifestation that dictator Jammeh keeps getting it all wrong. The Network has been publishing confidential letters from The Office of The President for the past few years, and will continue to do so.

As promised, here is part 2 of our series on Gambia’s rotten judiciary where the state in a deliberate attempt to pervert the cause of justice, use the Attorney General’s Chambers to frame innocent Gambians especially those it perceive as enemies.

THE UNETHICAL AND IRREGULARITY OCCASIONED

Having successfully frustrated the defense team in a combined effort, the DPP and the Judge now have an easy ride to achieve their mission as directed by Jammeh. The unethical behavior demonstrated by the state is alarming. The law has imposed a role and a duty on the Judge and the Prosecution. These roles and duties must be adhered to at all times and failure to do so is unethical, unjust, irregularly and a plain miscarriage of justice.

ROLES AND DUTIES OF A JUDGE IN CRIMINAL TRIALS

It is evident that the justice system is the mechanism that upholds the rule of law. Our courts do not only provide a forum to resolve disputes but to also test and enforce laws in a fair and rational manner. Judges must apply the law without regard to the government’s wishes or the weight of public opinion. Court decisions must always be based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favoritism.

We have what is known as an adversarial system of justice where the judge remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.

The judge is the “trier of fact,” deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether there is proof beyond a reasonable doubt and that the suspect is guilty.

The aforesaid is what justice DADA (the Judge presiding over the case of Darboe and Co) and any other Judge in the Gambia is required to adhere to. The natural question that flows from this is whether justice DADA has adhered to this principle in the case of Darboe and Co? The answer is an emphatic NO. As stated above, the number one principle is that the judge must enforce the law in a fair and rational manner. Section 19(5) of the constitution of the Gambia as well as section 99 of the Criminal Procedure Code of the Gambia provides that an accused person is entitled to bail. Darboe and Co applied for bail citing the aforesaid laws as the basis of their application and has provided sufficient facts as to why they are entitled to bail, yet the judge refused to grant their application thus denied them bail. The judge has blatantly applied the law in an unfair and irrational manner. In doing so she has betrayed the public trust by refusing to adhere to her role and duty.

The second role and duty is that the Judges must apply the law without regard to the government’s wishes or the weight of public opinion. There is overwhelming evidence (in this case) to show that the Judge has been giving regards to government wishes rather than apply the law in a fair and rational manner. It is a fact that

1. The Judge received a directive from the government to deny Darboe and Co bail.
2. The judge had several meetings with the Attorney General in the Attorney General’s office while the case is ongoing (obviously they will discuss the case and the what the president wants the outcome to be).
3. The judge guides the DPP on the laws to cite in court prior to the time allocated for hearing (on one occasion the judge sent her clerk to deliver a note to the DPP).
4. The constant refusal of all the applications made by the defense team no matter how overwhelming the evidence shows that the judge continuous to give regard to government wishes rather than the law.

The aforementioned amongst other things are sufficient evidence of the Judge’s quest to adhere to the wishes of Jammeh.

Finally, it is the role and duty of the judge to ensure that there is no place in the courts for suspicion, bias or favouritism. The judge in the case of Darboe and Co did the exactly the opposite. The manner in which she conducts herself and proceedings shows that she is bias and constantly favours the state. She has failed to remain above the fray and has failed to impartially assess the facts and evidence before her.

The judge’s failure to adhere to her roles and duties is unethical, unjust, irregularly and a plain miscarriage of justice.

ROLES AND DUTIES OF A PROSECUTING COUNSEL IN CRIMINAL TRIALS

Section 85(1) of the 1997 constitution of the Gambia provides that:

The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General-

(a)  to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia

(b)  to take over and continue any criminal proceeding that has been instituted by any other person or authority;

(c)  to discontinue, at any stage before judgement is delivered, any criminal proceeding instituted or undertaken by himself or herself or any other person or authority:

in performing the aforesaid the DPP is required to be fair and impartial – His interest primarily is to present the facts as they are, to see that justice is done and not to secure a conviction.

It is the duty of the DPP to check the truth of the case to verify if there is a prima facie case against the suspect before instituting any proceedings. If a prima facie case has been made against the suspect then an indictment will be prepared and file to the court that has jurisdiction. Was this adhered to in the case of Darboe and Co? again the answer is an emphatic NO.

In the case of Darboe and Co, the opposite happen. The Attorney General received a directive for Darboe and Co to be charged before the High Court. This directive was complied with without regards to proper procedure. The proper procedure is that the police are to investigate the alleged offence and prepare a report (investigation report). The report will be sent to the Attorney General’s Chambers. The report will be assigned to a lawyer to go through it and assess whether the evidence in the report revealed a prima facie case against the suspects before filling an indictment. The opinion will determine whether an indictment should be file or not.

What the DPP did in this case was to act on the directive given to him to file an indictment then he asked a junior lawyer to write an opinion to tally with the indictment he already filed. The facts and evidence were never assessed to see whether there was a prima facie case against the accused persons. Everything was done to the satisfaction of YAYA JAMMEH.

Another role and duty of the DPP is that he shall not withhold the existence of any adverse decision on a point of law favourable to the accused and he has a duty to make available to the accused persons evidence favourable to them. This was never complied with. The DPP has hidden facts known to him. He knew that the accused persons where tortured and that the PIU has refused to bring them to court unless they agree to change their blood stained shirts. He did not only hide this fact to the court, he went ahead and denied that the accused persons were ever tortured.

Also he called the witnesses in his office and coached them i.e. he told them what to say in court and how they should respond to his questions. The whole trial was a sham. Jammeh used the Attorney General’s chambers to legitimize the unlawful and illegal treatment of Darboe and co.

 NEXT WE WILL TALK ABOUT THE MISCARRIAGE OF JUSTICE VIS-À-VIS THE VIOLATION OF THE FUNDAMENTAL RIGHT TO A FAIR HEARING.

For the next couple of weeks, the Fatu Network is running a series on Gambia’s rotten judiciary where the state in a deliberate attempt to pervert the cause of justice, use the Attorney General’s Chambers to frame innocent Gambians especially those it perceive as enemies.

 
In our this first series our legal expert take a look at the case of United Democratic Party leader Lawyer Ousainou Darboe and Co and expressed how the state is going at every length to frame them even though available evidence shows that they are innocent. Below we produce the first part.

INTRODUCTION

The trial of Darboe and Co has been one of the most historic trial in the history of the Gambia. It earned its place in our history not because the proceedings were fair, just and in accordance with law and procedure, it did so because we have witness the most unjust trial the country has ever witnessed.

BACKGROUND OF THE TRIAL

A group of young Gambians assembled at westfield to show their displeasure with respect to the new electoral reforms and other laws that have been enacted by the national assembly and the president. Most of the youths in the said assembly are said to be from the main opposition party in the Gambia, UDP. During the said assembly, the state sent PIU official to the scene. The PIU brutally dispatched the assembly and arrested a dozen of youths. The youths who were arrested were detained and were denied access to a lawyer and their family. Consequently rumors emerged that three people amongst the detainees died in custody. They were believed to be tortured to death. This news sent the entire UDP Party into turmoil. Questions were being asked from both neutrals and the UDP party affiliates. The government decided to remain silent about the whole issue. They neither accept liability nor deny liability. Many unanswered questions were hanging while the entire nation and the world at large are waiting for answers. To mitigate the situation the leader of the UDP (Ousainou Darboe) called a press conference in his resident at pipeline. Where he said amongst other things that he would be leading his people to a peaceful protest demanding for the release of one Solo Sandeng either dead or alive. He and his supporters began their march towards westfield whiles holding hands demanding for the release of Solo Sandeng chanting “we need Solo Sandeng dead or alive.” Again PIU officers were sent to dispatch the gathering. Darboe and some of his supporters were brutally beaten and eventually arrested.

THE MISCARRIAGE OF JUSTICE OCCASIONED PRIOR TO THE MATTER BEEN TAKEN TO COURT.

The very moment that Darboe and co were arrested, all hopes of a just trial vanished. Why? It is the first time during the regime of Jammeh that an opposition leader took the street with his supporters demanding for justice. This was seen as a threat to the regime. A dictatorship regime always believes in brutality to make its subject subdue. The videos that went viral are sufficient evidence to corroborate the brutal force Jammeh used to arrest Darboe and co.

Upon their brutal arrest on the 16^th April 2016, they were taken to the PIU Headquarters in Kanifing. Whiles in custody at the PIU headquarters, something happen which was a sign that Darboe and co will never enjoy a fair trial. What is it that happened? Section 19 (2) of The 1997 Constitution of the Gambia provides “Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she can understands, of the reasons for his or her arrest or detention and of his or her right to consult a legal practitioner”
 this constitutional provision was never adhered to by the state. The arrestees were never informed as to why they were arrested nor were they informed of their right to consult a lawyer. This is something that should have been done within three hours of their arrest.

After more than 24hours of their arrest, four (4) senior lawyers went to the PIU headquarters to see Darboe and co but they were denied access by the officer in command. He told them that he has received a directive not to let them in. As usual, executive directive has been given priority over constitutional and fundamental human rights. Darboe and co spent the night there without access to a legal practitioner. They were in PIU custody from the 16^th to the 20^th April 2016.

WHAT HAPPENED NEXT?

On the 20^th day of April 2016 Darboe and co were to be arraigned at the Kanifing Magistrates’ court. Their arraignment was to be conducted by the police. The plan suddenly changed because there was an executive directive from Office of the President that they should be charged in the High Court instead of the Magistrates’ court. This was after the AG spoke with the DPP and the President. This was a tactical move to deny Darboe and co bail and to give the state time to coach their witnesses in order to oppose bail. Why was it a tactical move to deny Draboe and co bail? In the Gambia, proceedings before Magistrates Courts are termed as summary proceedings. Once a person is arraigned you are entitled to apply for bail orally. Darboe and co were ready to apply for bail because all the facts were in their favor. The state was not willing to take chances with a magistrate even though he was contacted to deny them bail. The DPP was immediately sanctioned by the AG to prepare and file a charge at the High Court. The Chief Justice was also contacted to assign the case to a Judge and the judge was instructed as to what to do (of course to tell the accused to come formally and refuse any oral application). The DPP complied with the instructions of the AG without demanding for the investigation report to enable him determine whether there is a case against Darboe and Co. The charge was eventually filed in the High Court. The case was delayed for almost two hours. Do you know why? I bet you don’t know. Darboe and Co were forced to change the shirts they were wearing because the shirts have blood stains on them. These blood steins came from the injuries they sustained in the hands of the PIU officers during and after their arrest. Initially they refused to comply until when they were told that they either change their shirts or they will not be taken to court. They complied because they know if they do not they will not be taken to court. Also they were of the belief that they will be granted bail since the offenses for which they were charged are bailable offenses.

Upon their arraignment, the defense team made an application to apply for bail orally and the judge refused. He told them to come formally i.e. they should file a bail application in writing. The defense team complied with the order of the court. Upon hearing the application of the defense team, Darboe and co were still denied bail irrespective of the constitutional provision of right to bail. Section 19(5) of the constitution provides that:

If any person arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.

Also section 99 of the criminal procedure code provides that when a person is accused of committing an offense other than an offense punishable by death or life imprisonment is entitled to bail.

It is clear that the offenses for which Darboe and co are charged are neither punishable by death nor by life imprisonment. Additionally the superior court of the Gambia came up with guidelines that a judge must consider whenever there is an application for bail by an accused person. ALBERT SAMBOU v THE STATE (Misc. Appeal No 37/2002) the court listed the factors to be considered by a Court in granting pre-trial bail as follows: (a) the nature of the offense; (b) the severity of the punishment prescribed for the offense; (c) the quality of evidence available; (d) the likelihood of the accused interfering with the investigations; (e) the likelihood of the accused repeating the offense (f) the criminal record of the accused; (g) the rate of occurrence of the offense (h) the likelihood of the accused appearing to stand trial.

All the laws are in favour of Darboe and co, yet they are still denied bail. Its simply and clear, the judge was asked not to grant them bail. This was evidence by the interview the judge had with Fatou Camara. This led the judge to recuse himself from the case and the case was assigned to another judge.

THE DEFENCE TEAM WALK OUT OF COURT

The new judge that was assigned to proceed with the case turnout to be adding and abetting the state in its quest to imprisoned Darboe and Co. she continuously and persistently denied every single application made by the defense team. She even refused to order security personnel to allow the defense team to have audience with their clients. At this point the defense team knew that something is not right. This frustrated the defense team and led to their withdrawal from the case by walking out of court.

Well what they did not know at the time and still might not know is that the judge is not only directed to refuse applications, she has met the AG in her office and even sometimes direct the DPP as to what to do or say prior to and sometimes after court sittings.

The withdrawal of the defense team has steamed out the legitimacy of the whole process. The state was not happy and the AG directed the DPP to institute contempt proceedings against the defense team. The processes were prepared but not filed. They were not filed because it would have delayed the time frame given to the state to ensure Darboe and Co are convicted. They whole process is panned to end before July 22. To be continued….