Oct 3, 2013, 9:38 AM
The seven journalists who are on trial on charges, ranging from conspiracy to publish seditious publication, publishing seditious publication, conspiracy to commit criminal defamation and criminal defamation, on 10th July 2009, pleaded not guilty to all the charges preferred against them.
Ebrima Sawaneh, Pap Saine, Sarata Jabbi-Dibba, Pa Modou Faal, Abubacarr Saidykhan, Sam Sarr and Bai Emil Touray, whose charges are now increased from five to six had their case heard in camera, following the prosecution's application that, the witnesses in the case are all state security agents whose identities should not be made public.
While submitting the Director of Public Prosecution (DPP), Richard N. Chenge informed the court that the state has filed an amended charge, dated 9th July 2009, to substitute for the first charge sheet - pursuant to Section 169 - (b) 218 (a) of the Criminal Procedure Code, to address the issue of the preliminary objection raised by the defence.
Reacting to DPP's submission, the leading counsel, Antouman Gaye, again objected to the substituted charges on the grounds that Section 169(b) of the CPC deals with the subsidiary courts and not the High Court.
Further submitting, defence counsel adduced that Section 218 (a) on which the DPP relied on was only a plea for 'rubber stamp' which is predicated on three conditions without application since they did not obtain a leave.
According to defence counsel Gaye, "these charges purely relied on information and the charge sheet are subjected to Magistrates' Court and not the High Court" as he submitted.
The DPP responded that "Whatever name a charge or information we are amending, is to take care of the preliminary objection." DPP went further to read Section 218 of the CPC, and then submitted that there is no injustice in amending the charges in line with the defence's objections, saying "we did not need to obtain a leave."
At this point, the court presided by Justice Wowo ruled that after he had listened to both submissions, the court decided to grant the amendment made by the DPP in the charges.
After ruling in favour of the state, lead defence counsel Antouman Gaye withdrew his objection of conspiracy in count one.
Richard N. Chenge then submitted that "conspiracy can be made with other charges as in count one and what is relevant is to prove the offence charged."
He further submitted by citing Section 112 sub-section (1) and (2), which says "any offence whether felony or misdemeanor of offences are charged on one offence constitutes a charge and that conspiracy is different offence from the substantive offence."
The DPP informed the court about one Mballow versus the state in whose case conspiracy and substantive offence were charged in the same offence.
Sam Sarr, representing himself, for his part, submitted that "Section 112 subsection (1) and (2) of the criminal code is not applicable as far as conspiracy and substantive offence is concerned".
The court at this point, asked the sixth accused person whether he is a lawyer or pretending to be a lawyer. Sam Sarr responded by saying "I am not a lawyer but defending myself."
Henceforth, the court ruled against the six accused on his objection to conspiracy and substantive offence in count one.
At this juncture, the lead defence counsel Antouman Gaye submitted that "we are not taking any plea", noting that the accused persons he's representing are objecting to the charge sheet and consequently will not take plea.
While pursuing on the charge sheet, he said "count 2 of the amended charge sheet which states clearly that publishing seditious intention, contrary to Section 118 of the CPC as in the burden of the charge in Section 51 (A) is not a charge, but definition section that cannot be charged as in state versus Abdoulie Conteh".
Antouman Gaye further submitted that, Count 3 of the amended charge is not count one definition section, adding that count 5 and 6 are equally defective and improper in the law.
Counsel Gaye still perused on count 2, which says publishing seditious publication, "that is Ebrima Sawaneh, Pap Saine, Sarata Jabbi Dibba, Pa Modou Faal, Abubacarr Saidy Khan, Sam Sarr and Bai Emil Touray, all members of the GPU, with intent to bring into hatred or contempt or to excite disaffection against the person of the President or the government of the Republic of The Gambia, is not a charge enough for the purpose of sedition and defamation as it contains no precise particulars so that the accused persons know what the state is complaining about and need a certainty to know what the offence is about."
The defence submitted further that "on count 3, the particulars in the Point Newspaper takes the court to count 2, which says published in Foroyaa Newspaper, and count 2 Point Newspaper, are the same thing and that the defence's objection is that the offence against double jeopardy as the complaint is one publication".
The defense counsel informed the court that Section 112 of the Criminal Code, states that "any offence whether felony or misdemeanor may be charged in the same charge when the offences are one since what is in the Foroyaa is the same issue as in the Point Newspaper words for word."
The court at this point, drew the attention of the defense team to Section 161 (A) of the Criminal Code which defected defense's submission since any objection should be taken after plea.
Defense counsel replied "I know my Lord is the Master of his court and you are the one who allows me to do my objection". The defense, however, referred the court to the summary of information in Count 1, 2 and 3, that on 15th June when Sam Sarr was arrested from his office, which shows that there is no evident that his clients have nothing to do with the offence.
Antouman Gaye further submitted that count 4, 5 and 6, are also defective and that all the counts did not contain averment to the complaint.
The defense submitted that should the accused persons be convicted on these charges as the court sentence cannot be concurrent, they have to be consecutive and there lies the defects as what is in count 1 is in count 2, 3 and 4.
In this regard, the defense submitted that the court should not allow the charges to stand on these extremely defective charges and submitted for the court to uphold his submission.
Sam Sarr, the sixth accused person, associated himself to the submission made by Antouman Gaye.
Replying to the objections made by the defence, DPP Richard N. Chenge submitted that there is no defence on the issue of information and averment. DPP argued that the averment is spelt out in Section 51 (1) (a) of CPC and then defined "sedition as putting a hatred by offering any seditious materials, while averment stated that you bring hatred to the President and the Republic of The Gambia".
The DPP went on to argue that the issue of publication constitutes an offence of its own. He argued that these are different offenses and submitted that let the courts presume whether the offences are consecutive or concurrent.
The DPP further argued that "on the issue of Section 118, read together with 52 (1) - (C) of the Criminal Code, stated that a charge is defective when only it is charged under the definition section and in this case the defamation section and the punishment section are read together".
The court ruled that it should only narrow itself to plea stage, and that it is only at the final stage that it will decide whether there is no averment.
Upon reading the charges to the accused persons, all the accused persons pleaded not guilty. Subsequently, the Director of Public Prosecution applied in court for his witnesses to be heard in camera in order not to disclose the identities of the security personnel.
Sam Sarr the sixth accused opposed the application, arguing that a trial should be done in an open court.
The court again ruled that, the sixth accused has misconceived the point, noting that the relevant point is for the identity of the security to be anonymous, and thus ruled that the matter be heard in Chambers.
The case was adjourned to 20th July 2009.