Nov 23, 2009, 3:19 PM
The first prosecution witness in the treason trial which got under way on Monday at the High Court in Banjul is reportedly a student, one Ebrima Marreh from Bwiam.
He gave evidence in the ongoing treason trial involving the former Chief of Defence Staff Lt. Gen. Lang Tombong Tamba and his co-accused.
Ebrima Marreh, who testified before Justice Amadi, informed the court that he is a student, and lives in Bwiam in the Western Region.
He said he knew some of the accused persons in the dock, and identified them as ex-CDS Lt. General Lang Tombong Tamba, ex Deputy Inspector General of Police Modou Gaye, Lt. Colonel Kawsu Camara, Brigadier General Omar Bun Mbye, businessmen Abdoulie Joof and Yousef Ezzeden.
He also said that he knows Kukoi Samba Sanyang, ringleader of the abortive 1981 coup, and Ndure Cham, ringleader of the March 2006 failed coup attempt, both of whom are currently at large.
According to the witness, former CDS Lt. General Tamba was the ringleader of the plot, and was responsible for assigning other members in executing the alleged coup plot.
Ebrima Marreh, designated PW1 by the court, said that, in 2009, he had attended three meetings summoned by ex-CDS Tamba. He said that Lt. Colonel Kawsu Camara, who lived in Kanilai, was assigned to monitor the movement of President Yahya Jammeh in and out of Kanilai. Abdoulie Joof and Ezzeden were expected to finance the alleged coup plot, he added.
"The accused persons have organised a series of meetings concerning the alleged coup plot at former CDS Tamba's house in Kololi," PW1 said.
"I was present at some of the meetings with the six accused persons I mentioned earlier. I only attended three of their meetings," he added.
He also said Lt. General Tamba had informed him that he (Tamba) and his co-accused sent one Rui Jabbi Gassama to Guinea Conakry to bring arms and ammunitions for the purpose of the coup. He further testified that ex-CDS Tamba told him that the said Rui Jabbi Gassama will later come to The Gambia.
Due to time constraints, PW1 Ebrima Marreh is expected to continue giving evidence today.
During Monday's court sitting, senior lawyer Pap Cheyassin Secka appeared as defence counsel for second accused Brig. Gen. Omar Bun Mbye, Major Lamin B.O. Badjie, Modou Gaye former deputy IGP, and Abdoulie Joof.
Former CDS Lt. Gen. Lang Tombong Tamba and Lt. Colonel Kawsu Camara (alias Bombardier) are being represented by lawyer Sheriff Tambedou, who is also representing Abdoulie Joof.
Earlier, before PW1 testified, lawyer Awa Sisay Sabally filed a motion on behalf of her client, the eighth accused person, Yousef Ezzeden.
"The first prayer of the motion was for a court order for eighth accused to be confined at his own house at his own expense," she submitted, pointing out that the motion was supported by a nineteen-paragraph affidavit sworn to by his brother, Muhammad Ezzeden. She added that she relied on all the paragraphs, and exhibits of the accused person's medical reports.
Lawyer Hawa Sisay Sabally noted that there was another affidavit in opposition by the state, but stated that there was no document or evidence to support the facts stated in it.
According to lawyer Hawa Sisay Sabally, there was no evidence or advice to revise the evidence before the court.
"The best evidence that can guide the court is the evidence of Muhammad Ezzeden that is medically supported," she submitted.
"The gist of exhibit YS1 shows that the eighth accused person is a high-risk cardiac patient, as dated last September 2009. YS2 shows the calcium score of the accused, and YS3 is the findings while YS4 is the CT scan done on the accused person," the defence counsel added.
She further submitted that the eighth accused person has multiple organ problems, and there is medical evidence to support that.
There is no medical evidence to rebuff these evidence, she continued, and invoked section 24 (3) of the constitution to bolster her arguments.
She also reminded the court that there is "the presumption of innocent until proven guilty." Lawyer Sisay Sabally argued further that the constitution strengthens that right, and submitted that no amount of case law or statute can take away that right.
According to lawyer Sisay Sabally, "it is based on that law that the accused person is guaranteed a right to life while standing trial."
It is explicitly clear in the affidavit that the accused will not be well attended to where he is now detained, lawyer Sisay Sabally added.
She submitted further that Yousef Ezzeden constantly suffered from severe chest pain and, therefore, needs proper medical attention.
According to the defence counsel, a case has been made for the eight accused person to be confined in his house, pending his trial, at no expense to the state.
Lawyer Sisay Sabally submitted that what is being asked is not much. That the accused "wants to stand trial, but does not want to die, and the law is not a monster but has a human face, and it is that face," she said, which she "wants the court to apply to the eighth accused."
Lawyer Sisay Saballly argued further that "the history of this country have shown that this has happened in 1994, but not on health ground." She submitted that in 1994 people who were detained have been taken to their homes, and the state provided ample security.
Lawyer Hawa Sisay Sabally went on to argue that what was stated in the affidavit of the state and sworn to by one Awa Dibba in paragraph 4 (e) is not correct.
She submitted that the complainant respondent cannot say it does not have sufficient security for only the eighth accused person. Lawyer Sisay Sabally cited paragraph 4 of the affidavit, which stated that "I was reliably informed by the office of Director of Public Prosecutions (DPP) R.N. Chenge and not from the office of the Minister of the Interior who is responsible for prisons."
The affidavit is not from the head of the Army, Inspector General of Police and the Attorney General, she further argued.
She submitted that the eighth accused person and the applicant was charged with three counts of treason and, according to her, the detention centers in the affidavit are not a conducive environment for a person with such a health condition.
According to lawyer Sisay Sabally, the particulars stated in the affidavit's paragraph (J) - that the eighth accused person is of Lebanese origin is a scandalous statement, which needed to be expunged from the respondent affidavit.
She went further to bolster her argument, stating that based on section 90 of the Evidence Act only factual statements shall be used as evidence in court. "Exhibit J cannot stand and ought to be struck out."
She argued further that section 72 of the Constitution does not discriminate and, in that light, paragraph (4) J and K ought to be struck out.
She submitted that paragraph (F) described the eighth accused as a person with a fluid character, and with connections out and within the country.
According to the lawyer, this was an attack on the accused person, adding that the Gambian constitution has several means of acquiring citizenship.
"The DPP is assign to prosecute and not to persecute," she further submitted, adding that there is no medical basis to support the DPP.
In the event that the court might not agree with her submission, the lawyer continued, she was reluctantly submitting that the applicant be taken to an infirmary under the control of the state.
She outlined some basic needs that the eighth accused needed, that is, an environment where he can get these prerequisites, ranging from fresh air, constant supervision and help.
In his reply, DPP Richard Chenge opposed the application made by the defence counsel, arguing that such an application has never been made in The Gambia.
He further submitted that the defence has made a vague application, and suggested that in 1994 a precedent happened in The Gambia.
He submitted that the right to be presumed innocent until proven guilty is not a guarantee for his (Yousef Ezzeden's) release.
DPP cited two Nigerian Law Reports 2004 and 2007 from the Supreme Court of Nigeria. He further cited the Nigerian Criminal Code and submitted that the offence is a capital offence, and that he relies on all the five paragraphs of the affidavit submitted by the state.
"Section 22 of the Criminal Code clearly stipulated where the accused persons should be detained," he declared, arguing that "the house of the accused is not mentioned in that provision." He submitted further that there is no legal provision for such in the constitution.
Richard Chenge argued that the state is not discriminating the eighth accused person, adding that his name does not resemble that of a Gambian.
According to the DPP, Yousef Ezzeden is well connected to Beirut, and all his documents are from Beirut, and he can escape to Lebanon.
Stating that sickness cannot be used as grounds for aid in a criminal case, the DPP further submitted that the state has enough facilities to take care of those who are sick. He said that the accused does not have a safe place where the security personnel can stay 24 hours watching him at his home.
DPP stated that the offence charged is related to undermining state security, pointing out that two of the accused persons are at large. "This is against the security of the state," he declared.
He submitted that in the interest of justice "we are ready to take care of the eighth accused in order to make him alright, even if it will mean taking him to UK, USA or Beirut."
DPP Chenge finally submitted that paragraphs 7 and 11 of the defence's affidavit are mere speculations, and urged the court to dismiss the defence application.
Replying on points of law, lawyer Hawa Sisay Sabally submitted that section 22 (6) was quoted out of context by the DPP, arguing that this section deals with proceedings where a witness is absent, and what is expected from the court. She also submitted that this section is discretionary.
Lawyer Sisay Sabally adduced further that paragraphs 7 and 11 conformed with section 89 of the Evidence Act and are not speculative.
"The DPP cited two reports from the Nigerian Supreme Court and not the Gambian Supreme Court," the defence lawyer said, and argued that the DPP's submissions are vague and not relevant.
The court will rule on both applications on Thursday.
Meanwhile, proceedings will continue today.