May 5, 2014, 10:09 AM
The defence in the Caliph General trial Monday addressed the court, before Magistrate E. Jaiteh of the Brikama Magistrates’ Court.
Defence counsel LK Mboge told the court the evidence and charge before the court are different, as the evidence did not support the charge.
He said “it is on evidence” that PW1 (Chief of Kansala) said he was called by Dembo Badjie, Chief of Bondali, that he got information that any village that didn’t pray on Monday 28 should not pray on 29 July 2014.
Mboge said “the funniest part” of the prosecution evidence was that PW1 said he received a phone call from Dembo Badjie, that he got the information from the Governor of WCR that the President said anyone who didn’t pray on Monday shouldn’t pray on Tuesday.
Counsel said none of those witnesses testified, which means the message was fourth or fifth hand, adding that no message was related to the first accused person hence no evidence from PW1 was related to the first accused person.
He said PW1 under cross-examination admitted that religion is a personal matter.
Counsel Mboge then asked “why the accused were picked out amongst the rest” as they were not the only persons that prayed on Tuesday.
He said the badge messenger, Seedy Gibba, made a clear admission he had never been arrested for praying or not at all, and even added that he prayed on a different day for the “Tobaski”, as he prayed on Saturday and others on Sunday but no arrest was effected.
He also admitted that the police did not have the power to arrest people for praying on different dates, and was surprised to learn people were arrested and brought to court for that, as “we all pray to one God”.
Mboge submitted that the first accused had been wrongly arrested because the message from PW1 through PW2 was not directed to him but to the imam, and was also not extended to him.
He said that led to the question as to how could the 1st accused conspire and disobey an order that was not directed to him.
Mboge said the arresting officer, who was PW3, and both PW1 and PW2 all made clear admissions strengthening the defence.
He said PW3 made it clear that religious leaders make religious decisions, and even conceded it is not an offence to pray on any day.
Counsel added that the announcement was made by the then imam of State House and submitted that the imam was like any of other persons and had no power to issue the arrest of anyone.
He said there is no compulsion in prayers and Eid prayers are based on the sighting of the moon.
“It is my submission that there is nobody who can compel the accused persons to see what they have not seen,” said Mboge.
As the accused persons had made it clear that they prayed after sighting the moon, counsel Mboge went on, adding that is what the Quran and Sunnah say regarding Eid prayers.
Counsel Mboge added that unfortunately the prosecution failed to produce evidence.
He also said it is unconstitutional to arrest someone without informing them of their arrest, and also to be detained for more than 72 hours, which means the constitution was violated.
Senior counsel Gaye also addressed the court, stating that the particulars of offence in count two stated “jointly disobey lawful orders by not praying on the announced day by GRTS”.
He added that they are just religious leaders, and have no power or authority to arrest anyone.
Counsel Gaye also said, assuming without conceding it was from the President who made this announcement, then “where are the lawful orders that were disobeyed?”
He said what the prosecution failed to do was to bring to the court the orders upon which the accused persons were brought to court.
He added that for an order to be regarded as an order, it must be authorised by either an Act of National Assembly, a written law, a regulation or a proclamation made under the authority of an Act.
In the absence of these, he said, the court has no jurisdiction to try the accused persons because “the elements to the accusation are missing, and do not even fall” under the requirements of certain Criminal Codes.
“I submit that my clients be acquitted and discharged as prosecution also failed to prove the guilt of the accused persons, and the announcement was not made by the President, but the Islamic Council who have no locus standi but only interfering in the affairs not in their power,” senior counsel Gaye submitted.
The case was adjourned to 18 May for the prosecution to reply.