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Justice Fagbenle's Judgement

Aug 10, 2009, 6:03 AM | Article By: Soury Camara

Justice Emmanuel Fagbenle of High Court of the Gambia in delivering his judgement on Thursday elucidated that the accused persons Ebrima Sawaneh, Pap Saine, Sarata Jabbi-Dibba, Pa Modou Faal, Sam Sarr and Bai Emil Touray are charged on six counts ranging from seditious publication, read together with section 5 2- (c), conspiracy to published seditious publication and criminal defamation.

Justice Fagbenle went on to reveal that the prosecution have called three witnesses and tendered exhibit (A) and (B) Foroyaa and the Point newspapers. Continuing on the judgement, Justice Fagbenle also explained that the Prosecution have also tendered exhibit C to H, which was the cautionary statements of the six Journalists except the cautionary statement of Sam Sarr the sixth accused person, whom he said refused to record his cautionary statement.

Justice Fagbenle revealed that the prosecution have also tendered exhibit I to L, all email addresses bearing Yahoo. He further adduced that the accused persons testified as defence witnesses and did not call any witness except Sam Sarr who called one witness called Karamo Ceesay an Islamic scholar. He further read that Sam Sarr defended himself and his exhibits were tendered and marked as Defence no. 6 exhibit A to C.

Justice Fagbenle adduced that PW1 tendered exhibit A and B and the cautionary statements of the accused persons without an objection from the defence. He further said that PW2 testified that he effected the arrest of the six accused persons, and also read an extract from the GPU press release authored by Ndey Tapha Sosseh. Justice Fagbenle revealed that PW2 said that after reading the article, what he understood from it is that the press release was accusing President and the Gambia Government of killing the late Deyda Hydara.

Justice Fagbenle, while reading his judgement further adduced that PW3 said he identified the accused persons at the NIA and that all the accused persons were invited to the NIA in relation to a press release published in Foroyaa and the Point newspapers and also facilitated access to their email addresses and wrote their names on it. According to him, PW3 said that the sixth accused person did not make a cautionary statement as he had declined to talk. This was the end of the prosecution case.

Justice Fagbenle further read that the testimonies of defence were rendered as defence witness 1 up to 6 and only Sam Sarr who was defending himself tendered defence no.6 exhibit A to C and called one witness an Islamic scholar called Karamo Ceesay who testified in court about the teaching of Islam in Suratul Nagri that we should desist from insulting the dead as it will disturb the soul of the deceased.

Following the conclusions of the testimonies from both the prosecution and the defence, Justice Fagbenle went on to reveal that the Director of Public Prosecution addressed the court. Justice Fagbenle also stated that defence counsel Lamin S Camara also addressed the court. While the sixth accused Sam Sarr addressed the court and associated himself to the earlier submission by the defence for the other five accused persons.

Justice Fagbenle elucidated after going through both evidences and the addresses, he premised the judgement on whether there was an agreement of conspiracy and whether the portion mentioned was seditious and defamatory and whether the accused persons are culpable. Justice Fagbenle revealed that the accused person were invited to the NIA on the 15th of June 2009 and made their statement on the 16th of June 2009. He revealed that the accused persons made their cautionary statements except the 6th accused Sam Sarr who did not make a cautionary statement, and Bai Emil Touray wished to reserve his statement for posterity.

Justice Fagbenle said that exhibit (L) and exhibit (J) provide a greater insight of how the inside of the whole episode started.

Justice Fagbenle also adduced that exhibit (L) contained a record of an attachment in connection with President Jammeh's interview. He said that all the accused were quite aware to ensure the publication of GPU press release in different ways and further said that their conduct connected like a web-chain. He said that there is no doubt Ndey Tapha Sosseh is the hub and there are co-ordinators.

Justice Fagbenle revealed that the actus reus must be referrable to the criminal offence. He went on to say "I did not believe in the testimonies of the accused persons because they approbate and probate" and therefore convicted all accused persons on conspiracy.

Expounding on sedition, Justice Fagbenle adduced that sedition and intention to bring or raise bad feeling or ill will or contempt to the population of The Gambia as in section 51 of the CPC. He further explained that sedition is the act or conduct intended to bring hatred and contempt to the President and the Government of The Gambia.

Justice Fagbenle adduced that when he looked at the circumstances surrounding the article as in exhibit I and J. Justice Fagbenle said that the publication is intended to reach world wide. Justice Fagbenle further said that went he examined exhibit A and B the background and circumstances of the publication in its entirety is not seditious intention but the accused persons have a cause to bring a seditious intention and found them guilty on count 2, which also applies to count 3, and found them guilty too on count 3.

On count 4 Fagbenle adjudged that the said publication contained innuendoes and that the contents are compelling and that the prosecution have proven their case.

On count 5 criminal defamation, Fagbenle said that as members of GPU and what is published in exhibit A and B is defamatory and found them guilty on count 5. He said the same implies to count 6 which Fagbenle also found them wanting by law. Fagbenle went on to explain that the prosecution have proved charges in counts 1,2,3,4,5 and 6 against the accused persons. Justice Fagbenle henceforth convicted all the accused persons.


Lawyer Camara's Plea of Mitigation;

In his plea of mitigation for the first convict Ebrima Sawaneh, defence adduced that the 1st accused Ebrima Sawaneh is a young man just at the threshold of his life and is married with two children. He stated that Sawaneh has been a journalist for more that 10 years and never had a conflict with the law for any offence, thus the 1st convict is a first time offender today. Counsel Camara further said the convict is the only bread winner of his family, here and up country.


In his plea for Pap Saine;

Defence counsel Camara, adduced that the second convict Pap Saine is 59 years old and a man of impeccable character. Camara further adduced that the second convict has rendered a distinguished service to the people of this country and a founder member of the GPU. Camara explained to the court that for 39 years Pap Saine has been actively engaged in this profession and has been and all time in the straight and narrow. Camara adduced that the convict has two wives and five children and the breadwinner for his family and fifty other families by virtue of his employment at his office. Counsel adduced that the second convict is sick and has a serious heart condition and needs a pacemaker as evident from the medical papers.


For Sarata Jabbi-Dibba the third convict, Counsel Camara adduced that she is a 27 year old lady who has a whole world ahead of her. Camara informed the court that she is married and has a young Baby Boy barely 7months old and one time breast feeding on her mother while in the dock. Camara also indicated that she is a first time offender.


For Pa Modou Faal, he is 37 years old and a married man with two kids, 2 and 5 years respectively. Lawyer Camara adduced that he has never been found wanting in his job and is the breadwinner of his family.


For Bai Emil Touray, Lawyer Camara said he is a young man and just married. Defence Counsel maintained that it is evident that the 7th convict has both asthma and ulcer. Counsel Camara revealed that the 7th convict is a first time offender and has been in this profession for ten years without committing any crime, and he is the bread winner of his family.

Defence Counsel elucidated that all these convicts are Gambian and having regard to the incidents of the convicts and mitigating factors in addition to their medical conditions, he urged the court to temper justice with mercy by not handing down any custodial sentence or heavy pecuniary fine in respect of the charges.

Defence Counsel further adduced that it is common knowledge that man is not perfect and submitted that being human, we are all bound to make mistakes.

Counsel Camara submitted that this is a court of law and equity, thus it has the authority to temper justice with mercy notwithstanding the penalty contained in the criminal code with respect to the offences charged. "I submit that this court cannot withstand any criminal code section 29 to hand down a peculiar fine on the convicts.

Counsel Camara also urged the court to at the very least count on section 29 sub section (3) to exercise prerogative caution and discharge and to keep the peace and be of good behaviour as contained in section 27 paragraph (G) of the CPC.

Counsel therefore enjoined the court to exercise this prerogative.


Sam Sarr's plea of mitigation:

In his plea of mitigation, Sam Sarr informed the court that he is born in a family that treasures discipline. "I grew up to be a humble person throughout my life and I cannot be at ease if my fellow human being is suffering," Sam Sarr submitted. He further submitted, "I have since committed myself to the services of this nation and humanity at large". He added, "When I returned to the Gambia from UK in 1976 after obtaining Masters in mathematics and physics, I taught mathematics and physics at both ordinary and advanced level". He continued that at the time he left Gambia High School, four students had grade A, at the A Levels, a record which "I believe has not yet been broken".

Sam Sarr further adduced that while teaching at Gambia High, he (Sam) was concerned with the problem of each and every student which prompted him to regularly visit students who had all sorts of problems at school, in order to work with their parents to see how best their problems could be solved.

Sam Sarr went on to elucidate that he also wrote plays and songs, and staged in those days for the purpose of raising funds for the needy students and teaching students good moral value. Sam Sarr adduced that President Jammeh has been one of those actors in those plays. "Despite these services rendered I still felt unfulfilled", he told the court.

The sixth convict continued to submit that "I could see with my naked eyes clearly a society in which the people are uninformed, it is capable of any serious conduct and reveal that this is what motivated me to become a journalist with the desire to build a society where people will be well informed and enlightened.

Sam Sarr assured the court that at the time of publication of the matter before the court, "I had no intention of hurting any body". He added that his character is not that which can tolerate hatred and on the contrary "I do understand individuals and I am always motivated to do what will bring about progress not hatred, division, chaos or violence. He submitted that his desire for the Gambia is a society in which democracy prevails and the free flow of information is entrenched.

Sam Sarr submitted that his age is 59, and that he has a family. He further submitted that he is willing to face any decision taken by the court regarding the penalties against him but the court should take into consideration the services he is rendering to this nation and associated himself to the counsel for the others relating to section 29 and 27 of the CPC.