May 7, 2010, 10:48 AM
SOLIDARITY WITH THE UDP LEADERSHIP FREE OUSAINOU DARBOE AND UDP MEMBERS
Today, at this very hour, minute and second, our hearts beat in unison with the heartbeats of your leaders and members who are incarcerated at the Central Prisons in Mile two.
Their crime is associated with holding a procession but the court has confirmed without any shadow of doubt that they were not guilty of any incitement of violence.
Despite this salient point, they were charged with 7 counts and convicted of 6 counts. They were sentenced to several terms of imprisonment which are to be served concurrently, thus earning them a 3 year jail sentence, partly because of the existence of a law which was enacted since 31st October 1961. This Act imposed mandatory jail sentence of 1 year for holding a procession without a permit. This law was allowed to continue as enacted by the colonial administration until 2009 when the penalty for holding procession without a permit was increased to 3 years by the National Assembly members. Hence the law made by Gambian members of Parliament in collaboration with the executive imposes a 3- year mandatory jail sentence, without any option of a fine to first time offenders.
This retributive style of law making binds the hands of courts and compels judges to send first time offenders to jail without regard to their circumstances, which should be given due consideration in any manner of sentencing that is rooted in substantive justice.
In actual fact, there is need to amend such a law which came into being before Gambia became a Republic. In his book Kairaba the former head of state did give a narration of developments in 1961 which provided the genesis of the Act. He explained how M E Jallow of the Gambia Workers Union turned his back at the Joint Industrial Council and demanded a 90 percent increase in wages. On 20th January his application for a permit to hold a procession was rejected. The defiance of the Union against the refusal to grant permit by going on strike and confronting the security forces led to the arrest and charging of Jallow Jallow for incitement of violence. According to Ex President Jawara Police reinforcement had to be brought from Sierra Leone to provide more security. It is important to mention that when the Colonial administration decided to hold a Constitutional Conference in May 1961 ME Jallow was invited to be a delegate.
Political protests are mere manifestations of concerns, especially when they are not linked to any incitement of violence. Permits are just instruments for the regulation of public order. Hence omission in obtaining them could be handled by dialogue and conciliation if the extenuating circumstances which gave rise to the omission are given fair assessment.
The point at issue is that Ousainou Darboe and UDP members spent over two months in detention and are now sentenced. Ebrima Solo Sandeng’s whereabouts is now known. He is dead. It is his whereabouts that the UDP leadership sought to ascertain.
Where is his body? Every body would ask: When is he confirmed dead and why did it take this long for his family and party leadership to know the truth? If the law of the land was complied with in the first place, would it have been necessary for any one to take any action to find out whether he was dead or alive?
The Coroner’s Act is clear. It states that “when a person dies while in the custody of the police or of a prison officer or in prison or when detained in any place under the provision of the lunatics detention Act, or of the Criminal Procedure Code, the Police Officer or the Prison Officer or other person having the custody or charge of the detained person at the time of his or her death shall immediately give notice of the death to the nearest Coroner……….” The Coroner shall hold an inquiry into the cause of death in the manner provided in the Act.
The Coroner in Banjul and KMC is a Magistrate of the first class.
Hence Ebrima Solo Sandeng’s death should have been immediately reported to such a Magistrate who, sitting as Coroner, has powers to hold an inquiry into the cause of death and direct a medical officer or other duly qualified medical practitioner to hold a post mortem examination of the deceased person and may prohibit the burial or order the exhumation of a body to conduct enquiry.
If such procedure was adhered to with consistency there would not have been any need for anyone to protest to find out Ebrima Solo Sandeng’s whereabouts. What had happened would not have happened.
Ebrima Solo Sandeng is the key to the case which led to the incarceration of your leaders and members.
Substantive justice demanded for the state to sort out his whereabouts and give the true picture to address the legitimate concerns of his family members and the UDP leadership.
The state should now have the moral duty to review the plight of those who were driven to action to inquire into Ebrima Solo Sandeng’s whereabouts because of the omission to abide by the letter and spirit of the Coroner’s Act which demands immediate action in making death in detention a public matter that should not be shrouded in any form of secrecy. This is what is reasonable and justifiable in any society which claims to value human life.
We had anticipated that your party leader would say after judgment, if he was allowed to address the court before his sentence was delivered as required by Section 244 of the Criminal Procedure Code, that the wailings of Ebrima Solo Sandeng’s children and loved ones at his residence, with the threat that they would march to demand for their father’s body whatever the peril or the cost, would have moved any leader of conscience to march in their place and suffer the fate that would have been the consequences of their action.
This is why we have repeatedly said that when conscience dictates reaction to a life or death challenge, criminality should not be alleged. Consequently, we have spared no effort in calling on the State to take this case as a political conflict which requires dialogue and resolution rather than a criminal case requiring prosecution and retribution. Our stance remains the same.
Your leader had no intention to overthrow a government, kill a person or cause any violence. The court has confirmed this by striking out Count No. 3. There was no incitement to violence; hence there was no criminal intent. Your leader is not a criminal. He has been a member of the legal fraternity for 43 years. He chose to exercise his right to form a political party and participate as a candidate in election.
As a leader, he has an obligation to stand up for those he leads. This is a virtue and not a vice and should be recognised as such by any authority that has any regard for duty, justice and fair play.
His incarceration for standing up for his members is not an ordinary event. Today, the members of his party, the people who voted for him in the 2011 Presidential election, the hundreds of thousands of Gambians who want justice not only to be done but to be seen to be done, and the millions of people in the world, who see the issuing of permits in the exercise of freedom of assembly and association as mere formalities aimed at protecting those demonstrating or engaging in processions, would not go to sleep with ease knowing that the fate of the UDP leader and its members is hanging in the balance of uncertainty ,waiting for those in authority to act without conditionality in good faith in the public interest .
The reverberation of the tune of the National Anthem as wailing supporters displayed their shock and disbelief should drive home the message that the proper action that is required to handle the April 14 and 16 incidents and others connected to them, especially when loss of life is confirmed, is political dialogue and diligent investigation into the loss of life and not legal retribution.
In our view, every just Gambian must bear the very words of the National Anthem in mind as sang by the UDP leadership and members: ‘let justice guide our actions towards our common good’; ‘and join our diverse peoples to prove man’s brotherhood’ (meaning our common humanity). It is therefore absolutely essential for everyone whose conscience is pricked to launch a ‘Free Ousainou Darboe and UDP Members Campaign’. We will propagate this spirit among the PDOIS membership and among all those we could influence until Mr. Darboe and all UDP members rejoin their families and party members and continue to play their part in shaping the political will of the Gambian people.
This is the task before us and we wish to assure you that we will not be found wanting in working assiduously, individually and collectively to achieve the goal.
While giving assurance that we are with you in heart and spirit in your time of need, please accept dear compatriots the assurances of our highest consideration and esteem.
Yours in the Service of the People,
For the Central Committee