Samuel Osseh Sarr, the Editor of Foroyaa Newspaper who is charged alongside Ebrima Sawaneh, Pap Saine, Sarata Jabbi-Dibba, Pa Modou Faal, and Bai Emil Touray on charges ranging from conspiracy to publish seditious publication, conspiracy to commit criminal defamation and criminal defamation on Monday 3rd August 2009, addressed the court, presided over by Justice Emmanuel Fagbenle of Banjul High Court.
Sam Sarr, the only accused person representing himself told the court that in as far as it affects him; he will associate himself with Defence Counsel Lamin Camara's address.
In his submission, Sam Sarr submitted that "I have been charged with six counts, two of which related to seditious and three others to defamation and one count relating to conspiracy".
He said that all the counts talk about publication, and thus suggested that in this regard the issue of Freedom of Expression arises in this trial. He noted that Section 25 subsection-1 paragraph (A) of the Constitution of the Gambia states that every person shall have the right to freedom of speech and expression.
He further adduced that this shall include freedom of the press and media. Sam Sarr submitted that freedom of expression is often referred to as the cornerstone of all human rights, and added that it is further strengthened in Section 207 subsection (1) of the constitution of the Gambia. Noting that there must be free flow of information and ideas which enable people to make informed choice, facilitate and strengthen democracy, he said, freedom and independence of the press are pairs that are guaranteed.
The sixth accused then referred the court to Section 207 subsection (3) and submitted that "press and other information media must uphold the principles, provisions and the objectives of the provision with responsibility and accountability of the government to the people of the Gambia".
He further submitted that freedom of the press is one of the best means of forming an opinion of ideals to their political leaders and provide the opportunity to reflect on the preoccupation of public opinion.
He submitted that this is the opportunity that is accorded to the President of the Gambia Press Union when she demanded publication, having regarded that "we have published the interview of the President of the Gambia". The sixth accused said this is bound out in Defence No.6 exhibit (B).
He further submitted that from his evidence, it is clear that he was giving all and sundry the opportunity of free debate, which he said, is the very core of the concept of a democratic society.
Sam Sarr informed the court that it is also in evidence that he was guided by his work as an Editor in a professional manner to publish divergent views and dissenting views, and all other views that are fit for publication.
He further suggested that it is not the role of the publisher or the Editor of a Newspaper to fight with opinion that has been forwarded for publication, and to make the Newspaper accessible to views, especially when it concerns the right to reply.
The sixth accused further submitted that failure to publish exhibit (A) would have amounted to failing in his constitutional responsibility, as stipulated in Section 207 subsection(3) of the Constitution
According to him, it would have amounted to denying the people of their right to know. And then he submitted "it would have been unprofessional because the President of GPU would have been denied the right to reply".
DW6 added that if a Newspaper comes to a stage where it cannot publish opinion and press releases, it might as well close down.
Sam Sarr rebutted the prosecution submission that it would have been better to write a private letter to the President, making a suggestion which, he said "I consider such proposition out of place".
He further testified that the Constitution of the Republic of the Gambia advocates for a transparent government and noted that the role of the media is to facilitate such transparency by scrutinising the executive and encouraging debate.
Sam Sarr further referred the court to Section 207 sub Section (3) which, he said, affords citizens to criticise and respond to a public statement made by the President and the government on matters of public interest.
According to him, failure not to abide by the principles enunciated in Section 207 sub (3) of the Constitution will enhance the hands of tyrants and corrupt officers.
DW6 further suggested that count 2, 3, 5 and 6, do not actually have any innuendo. He said there is no direct statement in whatsoever in exhibit A and B, which indicated that the President and the government of the Republic of the Gambia are responsible for the dead of the late Deyda Hydara.
He said the prosecution was quite particular about the word exonerate and thus submitted that if the statement is read it is not indicated anywhere.
He asked "how can one imply from it that the government and the President cannot be exonerated from the killing of the late Deyda Hydara when it is not said so".
DW3 submitted that Section 191 of the Constitution has put the President in charge of the NIA.
Sam Sarr further adduced that there are also various government security agencies, such as the police that conduct criminal investigation.
He informed the court that Section 88 also empowers the DPP to be responsible for prosecution. He went on to adduced that the evidence form exhibit (A), that is the GPU statement is clear that the President of GPU was concerned with the lack of progress made concerning investigations into the death of the late Deyda Hydara, and thus it was stated in the extract from GPU, which the prosecution presume otherwise.
He testified that the government being responsible for investigating crimes and prosecution was told that they cannot exonerate themselves from their responsibility.
DW6 went on to read some of the paragraphs in Defence No.6 exhibit (C) and also referred the court to exhibit (J) and read a paragraph from exhibit (J), which is said to be written by Ndey Tapha-Sosseh.
DW6 also referred the court to Defence No. 6 exhibit C page 14, which reads "what is still amazing the eye witnesses are still in Senegal".
He submitted that he had laid evidence that the second accused told the court that she very well knows one of those two ladies, whom she said, has since 2005 been living in the Gambia in Dippa-Kunda.
DW6 submitted that Ndey Tapha Sosseh felt that enough had not been done into investigation of the late Deyda Hydara, and thus "the whole attitude was suspicion".
He concluded by saying that the meaning given by the prosecution that the government and the President killed Deyda Hydara was wrong. DW6 adduced that this applies to all six counts since the statement referred to as defamatory or seditious forms the basis of all the six charges. He submitted that if the prosecution fail in this enterprise to interpret the statement 'defamatory and seditious statement' to mean that the government and the President of the Gambia have been accused of killing the late Deyda Hydara, then the prosecution have failed in discharging their duties in all the counts. "For this simple reason, I ask the court to acquit and discharge me of all the six charges," DW6 told the court. On the issue of conspiracy, DW6 suggested that the prosecution have also failed to prove that he has conspired with anyone. He added that the evidence referred to in exhibit (J), dated 10th June 2009, is neither here nor there. DW6 adduced that the prosecution did not lay any evidence to show that he has received or responded to the e-mail sent by Ndey Tapha-Sosseh, the President of GPU. DW6 said as submitted by the prosecution in a charge of conspiracy, the conspirators must be aware of the transaction. He adduced that he had already submitted in evidence that, all the accused persons during cross examination have acknowledged that he did not discuss the statement in exhibit A; neither did he forward the statement to them. DW6 also submitted that "other accused persons have acknowledged that they do not send the said statement to me and that I did not request them to publish the statement at any time". He further adduced that the only evidence that involves communication before the court is the communication through his email box from Ndey Tapha Sosseh, which he said, was stated in his evidence-in-chief. He further submitted that the prosecution has failed to prove that he was involved in any conspiracy, since there is no conspiracy at all. Submitting on sedition, DW6 suggested that all the charges including sedition asserted that he is a member of the GPU. He submitted that he even doubt there is anything wrong in being a member of GPU, but he noted that the testimony before the court is that he is not a member of GPU, but an adviser by virtue of his position at Foroyaa Newspaper. DW6 then stated that the prosecution had failed to prove any evidence to show that there is no difference between the role played by a member and an adviser. Mr. Sarr again referred the court to Section 51 sub section (1) of the CPC, in particular, the provision as to when a publication is not seditious. Submitting in relation to paragraph 2 of the GPU statement, he said, it is not intended to point out their lack of commitment in the investigation of the killers of the late Deyda Hydara. DW6 then said having regarded to the fact that the prosecution must prove all the ingredients of the charges, he submitted that they have failed to discharge their duty. DW6 also submitted that "as I am responsible for what is published in Foroyaa there is no evidence before this court to show that I am responsible for what is published in exhibit -B." He therefore urged the court to acquit and discharge him in respect of Counts 2 and 3. Submitting in defamation, DW6 adduced that defamatory remark is defined in Section 179 of the CPC as amended in 2004. DW6 then read extracts from Defence No.6 exhibit (C), which is the interview of the President with the GRTS. He also quoted his witness No 2 (Karamo Ceesay), whom he said, is an Oustass at Brikama, as saying that it is an insult to say that "a dead man was a bad man or a foolish person". DW6 further submitted that the speculations and ridicule that Ndey Tapha Sosseh was referring to are 'these', noting that he had given evidence that one of the ladies referred to is still in The Gambia, and that none of them is married to a Senegalese. DW6 submitted that anyone who seeks justice must come with clean hands. In this regard, he said taking into account that Ndey Tapha Sosseh has raised the alleged defamatory statement is not the least defamatory. As he put it, for a statement to be defamatory it must be concocted. DW6 submitted that the statement published in exhibits A and B are not concocted since the publication is made in good faith. He then referred the court to Defence No. 6 exhibit B of the interview published, and noted that the approach taken by him in the publication of the article is that he had undertaken to publish different opinions as in line with the principles of publishing divergent views and public opinion. DW6 adduced that "publishing what the President has said does not necessarily mean one agrees to what he has said". DW6 elucidated that he (Sam) was obliged to act professionally by allowing all views on matters of public interest to be published in the paper. At this point, he referred the court to Section 181 of the CPC and relied on Section 183 of the same CPC paragraph (G). He then submitted that the publication contained in exhibits: A and B is the response of the GPU President to the statement made by the President of the DW6 adduced that at the time of publishing the article he had no intention of defaming the President of the DW6 submitted that the prosecution failed to prove the publication of the ingredients in Count 5, that he actually committed an offence in Count 5 and 6. DW6 then urged the court to accordingly acquit and discharge him. Mr. Sarr further testified that the submission made by the DPP that he accepted the remarks in exhibit A and B, is not in evidence. DW6 also discredited DPP by saying that he (DW6) was angered by the President's remarks on page 12 of Defence No.6 exhibit (C). As he put, the DPP has used the wrong word. "I only expressed concern of such statement to come from a head of state," he stated. Finally, DW6 submitted that the principal question before the court is whether the President can say whatever he likes, whether true or untrue, whether insulting or derogatory without anyone giving him a fitting response. He submitted that the court should hold the contrary position, that's it tramples on the rights of citizens to freedom of expression. DW6 submitted that the prosecution had completely failed to prove beyond reasonable doubt. "I have not committed any of the offences, and thus urged the court to acquit and discharge me on all the charges," he concluded his address.
At this juncture, Sam Sarr submitted "I associate myself with the submission of the Counsel of the other five defenders on this issue".
DW6 adduced that this applies to all six counts since the statement referred to as defamatory or seditious forms the basis of all the six charges.
He submitted that if the prosecution fail in this enterprise to interpret the statement 'defamatory and seditious statement' to mean that the government and the President of the Gambia have been accused of killing the late Deyda Hydara, then the prosecution have failed in discharging their duties in all the counts.
"For this simple reason, I ask the court to acquit and discharge me of all the six charges," DW6 told the court.
On the issue of conspiracy, DW6 suggested that the prosecution have also failed to prove that he has conspired with anyone. He added that the evidence referred to in exhibit (J), dated 10th June 2009, is neither here nor there.
DW6 adduced that the prosecution did not lay any evidence to show that he has received or responded to the e-mail sent by Ndey Tapha-Sosseh, the President of GPU.
DW6 said as submitted by the prosecution in a charge of conspiracy, the conspirators must be aware of the transaction.
He adduced that he had already submitted in evidence that, all the accused persons during cross examination have acknowledged that he did not discuss the statement in exhibit A; neither did he forward the statement to them.
DW6 also submitted that "other accused persons have acknowledged that they do not send the said statement to me and that I did not request them to publish the statement at any time".
He further adduced that the only evidence that involves communication before the court is the communication through his email box from Ndey Tapha Sosseh, which he said, was stated in his evidence-in-chief.
He further submitted that the prosecution has failed to prove that he was involved in any conspiracy, since there is no conspiracy at all.
Submitting on sedition, DW6 suggested that all the charges including sedition asserted that he is a member of the GPU. He submitted that he even doubt there is anything wrong in being a member of GPU, but he noted that the testimony before the court is that he is not a member of GPU, but an adviser by virtue of his position at Foroyaa Newspaper.
DW6 then stated that the prosecution had failed to prove any evidence to show that there is no difference between the role played by a member and an adviser.
Mr. Sarr again referred the court to Section 51 sub section (1) of the CPC, in particular, the provision as to when a publication is not seditious.
Submitting in relation to paragraph 2 of the GPU statement, he said, it is not intended to point out their lack of commitment in the investigation of the killers of the late Deyda Hydara.
DW6 then said having regarded to the fact that the prosecution must prove all the ingredients of the charges, he submitted that they have failed to discharge their duty.
DW6 also submitted that "as I am responsible for what is published in Foroyaa there is no evidence before this court to show that I am responsible for what is published in exhibit -B."
He therefore urged the court to acquit and discharge him in respect of Counts 2 and 3.
Submitting in defamation, DW6 adduced that defamatory remark is defined in Section 179 of the CPC as amended in 2004.
DW6 then read extracts from Defence No.6 exhibit (C), which is the interview of the President with the GRTS.
He also quoted his witness No 2 (Karamo Ceesay), whom he said, is an Oustass at Brikama, as saying that it is an insult to say that "a dead man was a bad man or a foolish person".
DW6 further submitted that the speculations and ridicule that Ndey Tapha Sosseh was referring to are 'these', noting that he had given evidence that one of the ladies referred to is still in The Gambia, and that none of them is married to a Senegalese.
DW6 submitted that anyone who seeks justice must come with clean hands. In this regard, he said taking into account that Ndey Tapha Sosseh has raised the alleged defamatory statement is not the least defamatory. As he put it, for a statement to be defamatory it must be concocted.
DW6 submitted that the statement published in exhibits A and B are not concocted since the publication is made in good faith.
He then referred the court to Defence No. 6 exhibit B of the interview published, and noted that the approach taken by him in the publication of the article is that he had undertaken to publish different opinions as in line with the principles of publishing divergent views and public opinion.
DW6 adduced that "publishing what the President has said does not necessarily mean one agrees to what he has said".
DW6 elucidated that he (Sam) was obliged to act professionally by allowing all views on matters of public interest to be published in the paper.
At this point, he referred the court to Section 181 of the CPC and relied on Section 183 of the same CPC paragraph (G).
He then submitted that the publication contained in exhibits: A and B is the response of the GPU President to the statement made by the President of the
DW6 adduced that at the time of publishing the article he had no intention of defaming the President of the
DW6 submitted that the prosecution failed to prove the publication of the ingredients in Count 5, that he actually committed an offence in Count 5 and 6.
DW6 then urged the court to accordingly acquit and discharge him.
Mr. Sarr further testified that the submission made by the DPP that he accepted the remarks in exhibit A and B, is not in evidence.
DW6 also discredited DPP by saying that he (DW6) was angered by the President's remarks on page 12 of Defence No.6 exhibit (C). As he put, the DPP has used the wrong word.
"I only expressed concern of such statement to come from a head of state," he stated.
Finally, DW6 submitted that the principal question before the court is whether the President can say whatever he likes, whether true or untrue, whether insulting or derogatory without anyone giving him a fitting response.
He submitted that the court should hold the contrary position, that's it tramples on the rights of citizens to freedom of expression.
DW6 submitted that the prosecution had completely failed to prove beyond reasonable doubt. "I have not committed any of the offences, and thus urged the court to acquit and discharge me on all the charges," he concluded his address.
