Landing
Jatta, who was convicted and sentence to life in jail by the High Court in
Banjul for allegedly raping a 10-year-old girl, was freed by the Gambia Court
of Appeal yesterday.
The
appeal court, presided over by a panel of three judges headed by Justice Awa
Bah, ruled that Jatta, who had already spent almost five years in jail, was in
fact convicted for a crime he did not commit.
According
to the court narration, the girl found the man on the bed and he pushed her on
the bed and ejaculated on her, but did not actually penetrate her.
Delivering
the judgment, Justice Orifowomo said the appellant (Jatta) was arraigned before
Justice E. Amadi of the High Court in Banjul on 26 June 2011 and charged with
the offence of rape.
The
prosecution had alleged that the appellant (then accused) on 5 February 2011 at
Fajara in the Kanifing Municipality had unlawful sexual intercourse with a
10-year-old girl without her consent.
The
prosecution called several witnesses to prove its case against the appellant,
who called no witness in his defence.
The
court subsequently convicted and sentenced the appellant on 7 June 2012 to life
imprisonment.
Dissatisfied
with the lower court’s judgment, the appellant filed a notice of appeal,
thereby appealing against the conviction and sentence, and that he was not
guilty of the alleged offence.
The
appellant counsel, Pa Harry Jammeh, raised three issues for determination
before the court, and cited several cases and authorities.
The
appellate court judge pointed out that the appellant’s counsel argued that the
state/respondent woefully failed to establish the offence of rape against his
client, as it was evident that there was no penetration of the alleged victim.
The
appellate court judge said the state submitted that the burden of proof was
discharged by the prosecution, adding that the sentence imposed on the
appellant was appropriate.
Justice
Orifowomo said having carefully examined the submissions of both parties, and
the evidence of the alleged victim from the records of the trial court, it was
the alleged victim’s evidence that “the appellant pushed me on the bed and
ejaculated on me, and I got up and left, but he didn’t rape”.
The
judge also said it was clear from the appellant’s cautionary statement that, “I
released my semen on her, but I did not do anything to her; she found me on the
bed, but I did not rape her.”
Justice
Orifowomo further said the appellant using his finger to rub the victim’s
vagina was unlawful as he has no right to even look at it.
The
judge added that sexual penetration is proved by the insertion of the penis,
and that a distinction must be made between rape and indecent assault.
He
further stated that the appellant did not penetrate the victim, but discharged
semen on the body of the victim and that sexual knowledge is deemed complete
upon the penetration of the vagina by penis, and not by the finger.
The
judge cited a plethora of cases and authorities, and pointed out that the judgment
of the lower court was liable to be set aside; and that he agreed with the
appellant’s counsel, Pa Harry Jammeh, that the facts do not support the charge
of rape, but sexual assault.
Justice
Orifowomo said sexual predators must be punished.
He,
therefore, sentenced the appellant, Landing Jatta, to serve two years
imprisonment, adding that the sentence shall take retrospective effect from the
date he was convicted (that is 7 June 2012) and was, therefore, released.
Lawyer
Pa Harry Jammeh, the appellant’s counsel, thanked the court on behalf of the
appellant and his family, noting that the judgment embodied proper application
of the law.
