May 15, 2015, 10:12 AM
The Brikama Magistrates’ Court presided over by Magistrate E. Jaiteh yesterday freed Caliph General Muhideen Hydara of Darsilameh Sangajor and Village Alkalo Buyeh Touray, who were facing two counts of conspiracy and disobedience to lawful order.
Delivering his judgment in a crowded courtroom, Magistrate Jaiteh said he had carefully read through all the testimonies adduced by the prosecution and defence witnesses in the case.
It is a cardinal principle in criminal cases that, the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution, he said.
Although the prosecution could do so by either direct or circumstantial evidence, the law requires that in either case the prosecution bears the legal burden of proving all the elements of the offence necessary to establish the guilt of the accused beyond reasonable doubt, Magistrate Jaiteh added.
From the foregoing, he went on, it was clear that the prosecution must succeed on the strength of its own evidence and not allowed to rely on the weakness of the defence or lies told by the accused as the basis for a conviction.
He said that on the first count of conspiracy against the accused, the fundamental issue under the law of conspiracy was whether there was an agreement or meeting of the minds between the first accused person, Muhideen Hydara, and the second accused person, Buyeh Touray.
He said the relevant issues for determination under section 116 in the case were: “Where are the lawful orders of the President that were disobeyed? Whether the evidence that was announced was from the President?
With regard to the first issue, as to where are the lawful orders of the President that were disobeyed by the first accused person, Muhideen Hydara, and the second accused person, Buyeh Touray, was an essential ingredient of the offence in section 116 of the Criminal Code of The Gambia.
The prosecution in their bid to prove their case did not tender any evidence as exhibit before the court to show that the orders disobeyed were from the President of the Republic of The Gambia.
He adduced that the prosecution failed to call a very important witness such as the Governor of West Coast Region, who was the alleged recipient of the President’s lawful orders.
“I wonder why the prosecution failed to call a star witness like the Governor. The testimony of the Governor cannot be equated to any of the prosecution witnesses who testified before this court,” the magistrate said.
The Governor, according to section 124(1) (a) of the Local Government Act of 2002 “represents the President and the Central Government in the Local Government Area and accordingly; exercises executive powers in the area”, the magistrate said.
regard to the second issue, as to whether the evidence that was announced was
from the President, which according to him, was another significant element
under section 116 of the Criminal Code, he said the prosecution alleged in
counts two that Muhideen Hydara and Buyeh Touray jointly disobeyed lawful
orders of the President of the Republic of The Gambia by refusing to perform
Edul-Fitr prayers on 28 July 2014, as announced by The Gambia Radio and
Television Services (GRTS).
He said the prosecution must prove that there was an announcement from the President, but they failed squarely to tender any evidence of the announcement from the President of the Republic as alleged in count two on the charge sheet.
He said the prosecution did not call another material witness from GRTS, as the medium who allegedly announced the lawful orders of the President that were allegedly disobeyed by the accused persons.
“I find no iota of evidence from the prosecution that there is a lawful order from the President of the Republic of The Gambia,” he stated.
The defence counsel in rebutting and discrediting the allegation of the prosecution in count two, summoned the Director General of The Gambia Radio and Television Services to produce the radio and television announcement of the performance of Edul-Fitr prayers aired on 27 July 2014, he said.
The Deputy Director General of GRTS deputised the Director General and testified for the defence as a witness, stating that he had in custody the recorded video, and transcribed copy of the said video announcement, which were admitted as defence exhibits, he stated.
The evidence adduced by the prosecution had been so discredited by the defence and was so manifestly unreliable that no reasonable tribunal could safely convict on it, he added.
The prosecution had not provided any cogent, compelling and unequivocal evidence to the contrary, said the magistrate.
“I am satisfied by the evidence and submission of the defence that the President of the Republic did not make any announcement over GRTS sanctioning Edul-Fitr prayers on a specific date,” he further stated.
The announcement alleged in count two was from The Gambia Supreme Islamic Council delegation, he said.
“It is my considered view that the prosecution has woefully failed flat again to prove that the announcement by GRTS was from the President of the Republic with the certainty required by law,” he continued.
“The accused persons, in my view, should be discharged and acquitted and this is what I must do now,” the trial magistrate further stated.
“The accused persons Muhideen Hydara and Buyeh Touray are accordingly acquitted and discharged by this court on count one and count two respectively,” the magistrate declared.