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“I will not mount the witness box, and I will not swear by the Quran” as defence challenges eligibility of un-sworn evidence

Dec 17, 2010, 12:44 PM | Article By: Sainey M.K. Marenah

Former Gambia armed forces spokesperson, Captain Bunja Darboe, Wednesday again refused to be sworn and to give evidence in the treason trial of Lang Tombong Tamba and Sarjo Fofana at the special criminal court in Banjul before Justice Ikpala.

The court on Wednesday issued a two-phase warrant for Bunja Darboe to appear in court and give evidence, following a seventeen-paragraph ex prate motion filed by the Director of Special Litigation, Daniel O. Kulo, urging the court to recall Bunja Darboe.

During Wednesday’s proceedings, Bunja Darboe categorically said he would not mount the witness box to testify against his former superiors.

“My lord, I have made it very clear to this court that I will not enter the witness box, because I am a convicted prisoner serving a life sentence at the state central prison at Mile 2, and I will not swear or affirm,” Darboe told the court.

At that juncture, DSL Daniel O Kulo asked the witness that whether he knew the accused persons, but Bunja Darboe declined to answer the question.

Senior defence counsel Sheriff Marie Tambedou then told the court, “My lord, I will say what I once said, and that is, the witness should not give evidence without being sworn or being affirmed.”

The defence counsel added, “My lord, I want the records to reflect what is happening here.”

Counsel went on to state, “I have observed from the application of the prosecutor for him to proceed with the case, without the witness being sworn or affirmed or mounting the witness box,” Tamdedou submitted.

Counsel urged the court to make a record of the prosecution’s application or request.

DSL Daniel O. Kulo then told the court that the witness could give evidence without being sworn. He said the prosecution was ready to proceed with the case, by calling Bunja Darboe as the sixth prosecution witness.

DO Kulo then asked Darboe, “you were in the Gambia Armed Forces, is that correct?”, but Darboe told the court that he has made it clear that he is a convict serving life at Mile 2.

“You were served with the warrant the court issued on Tuesday”, Kulo asked Darboe who said, “I have read it”.

SM Tamdedou again rose to tell the court that the witness is disqualified to give unsworn evidence, adding that the law has made it very clear in which circumstances a witness can give unsworn evidence.

“One, my lord, when the witness refuses to give evidence because of his or her religious beliefs, and secondly, when a witness is a child, the court in its opinion dispenses with the need for oath,” counsel submitted, and cited the Evidence Act, in support of his submission.

“ My lord, this are the only two circumstances. The witness’s reason for not giving evidence is that he is a convicted prisoner, and it also obvious that the witness is not also a child,” he added.

He concluded by submitting further that the court should not allow an unsworn witness to testify.

In response, DO Kulo also cited the Evidence Act, and said the law, in this case, compels the court to hear unsworn evidence.

“My lord, there is no law from stopping my lord to record the evidence of the witness standing before this court on the grounds that he failed to be sworn,” Kulo added.

He cited the criminal procedure code, and urged the court to humbly overrule the defence counsel’s objection.

In his reply, on a point of law, SM Tambedou, who also held brief for L.K. Mboge, said the law did not allow witness (s) to give unsworn evidence, adding that the prosecutor has mislead the court when he said the witness can give unsworn evidence.

Counsel also cited the CPC to further buttress his submission

The case was at this juncture adjourned to 21st December for ruling.

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