Lamin L.K. Mboge, representing Admiral Sarjo Fofana, has told the Special Criminal Court presided over by Justice Ikpala that the only justice the court can do is to discharge and acquit the accused person.
Lawyer Mboge was responding on Monday to the address made by the state prosecutor in the ongoing treason trial involving Lt.General Lang Tombong Tamba and Admiral Sarjo Fofana.
In his address, counsel Mboge told the court that the 2nd accused person was charged with two counts, and that the prosecution had called five witnesses to prove its case against the accused.
According to counsel Mboge, the prosecution unfortunately failed to prove its case beyond all reasonable doubt, citing sections of law authorities to back his submission.
Mboge further submitted that the charge of conspiracy failed, because there was no evidence to show that the 2nd accused person conspired with Col. Ndure Cham.
Counsel Mboge added that Momodou Alieu Bah was called as PW1 and Lamin Manneh was called as PW2, but fortunately these witnesses never mentioned the name of the 2nd accused person, and there is nothing in their evidence which shows that the 2nd accused had conspired with Ndure Cham to stage a coup in The Gambia.
Counsel said that the prosecution called PW3, Muhammed Sowe, who is a formal witness and a police officer, who tendered the statement of the 2nd accused person as exhibit B.
He argued that the witness never said that the 2nd accused conspired with anybody, and further argued that there is nothing in exhibit B showing that the 2nd accused person has conspired with anybody.
Counsel further submitted that PW3 and PW4 never stated in their evidence that the 2nd accused person had ever conspired with anybody to commit treason.
Mboge urged the court to treat exhibit C with caution, because the said exhibit was not corroborated by any evidence, submitting that the 2nd accused was the president of the court martial that convicted and sentenced PW5, Yaya Darboe.
He added that if Yaya Darboe again came and testified against the same man, it would be very unsafe to rely on that evidence, and that equally it is unsafe to rely on uncorroborated evidence.
Counsel further stated that the statement of PW5, Yaya Darboe, was inconsistent, further stating that exhibit C was uncorroborated, as Ndure Cham had never testified in this case.
PW5, he went on, told this court in his evidence that he does not mean what he said in exhibit C, because he was promised to be discharged, reinstated and to be paid his arrears of salaries.
He submitted that PW5’s statement was made based on inducement, and that the conditions were not fulfilled, submitting that exhibit C is not reliable and, therefore, should be disregarded.
Mboge added that PW5 is a tainted witness, who has his own motive to serve and the purpose is clear; because he had been induced to make a statement.
LK Mboge submitted that anybody who was imprisoned for life and promised to be discharged and to be reinstated, would come and say anything, and he urged the court to disregard the evidence of Yaya Darboe as he is a tainted witness.
The defence counsel submitted that, where a witness made a contradictory statement, the evidence cannot be trusted or relied on by the court, adding that PW5 Yaya Darboe made himself a liar in this court, because he was promised and when the promised failed he refused to testified.
He urged the court not to attach any weight to the prosecution witness, and further submitted that the 2nd accused person is presumed innocent until proven guilty by the court.
He then urged the court to discharge the 2nd accused on count one because the prosecution had failed to prove its case against the 2nd accused person.
On count two: “I submit that there is no such evidence for treason before this court, and I challenge the prosecution that they cannot prove its case against the 2nd accused person,” he added.
The evidence of PW5 is what the prosecution is hanging on, and it is not reliable. PW5 had not only been induced but tried, convicted and sentenced by the 2nd accused,” counsel further submitted.
He submitted that the evidence of PW5 is uncorroborated by any piece of evidence, and further urged the court to disregard the evidence of PW5.
Counsel submitted that the prosecutor said the 1st and 2nd accused persons have common intention, but there was no common intention in this case, adding that the common intention arises where there is a group action.
He explained that the evidence of the prosecution witnesses is contradictory, and inconsistent before the court, urging the court to acquit and discharge the 2nd accused, because there is no evidence against him.
“The only justice the court can do is to discharge the accused person, and declare him a freeman, because he is innocent,” counsel concluded.
The case was adjourned till 23 March 2011.
