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 16th 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 16th to the 20th April 2016.
WHAT HAPPENED NEXT?
On the 20th 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….
