Jan 18, 2011, 12:30 PM
The trial of the seven journalists: Ebrima Sawaneh, Pap Saine,
The proceedings started with cross-examination of the second prosecution witness (name withheld).
Antouman Gaye, the lead defence counsel, began by asking the witness whether he knows the six accused persons and whether they are members of the Gambian Press Union (GPU).
The witness responded in the affirmative, saying they are all journalists. He added that their profession also make them members of the G.P.U. He posited that being a journalist serves as an evident for him.
Furthermore, under cross-examination he said he knows Abubacarr Saidykhan, the 5th accused person as a journalist, and a member of the GPU. He further adduced that he also knows Sarata Jabbi Dibba, whom he said, is the 1st Vice-President of the GPU.
At this juncture, Antouman Gaye asked him whether he knows Modou Sanyang of GRTS, and he answered in the positive. Further asked whether the entire anchormen and women and reporters of GRTS are members of the Gambia Press Union. He retorted "I don't know."
PW2 further explained that he picked up the 5th and 6th accused persons and handed them to the NIA headquarters. He went further to say that, he read exhibit A (that is the Foroyaa Newspapers), a day after the article which the President of the G.P.U reacted to an interview on the GRTS Television.
He said after reading the piece, he made an opinion that the government of the Gambia and the President are implicated in the killing of the late Mr. Hydara, the co-proprietor and editor of the Point Newspaper.
Antouman Gaye then asked him to go through the article and state where it was mentioned that the President and the
The witness, however, stated that it was not stated in the article. "It is not stated in the article, but when I read the article I understand actually what they are saying," he argued.
The defence then put it to him that when the article is given to each and every person in the crowded courtroom, each person will have his or her own opinion of the article. Antouman Gaye put it to PW2 that his opinion was erroneous and arrived at "no basis". PW2 responded that it has basis since it is on the papers.
When asked how long he has been a security officer, he answered "for over 30 years."
At that juncture, Antouman Gaye put it him that as he is entitled to his opinion, so others are entitled to theirs.
PW2 again resorted to a short reply, "I don't know".
He further put it to the witness that, he is evading the questions, which shows that he (PW2) is not a competent witness, but a "compellable witness."
Counsel Gaye further submitted that PW2 was deviating in answering the questions and he (PW2) answered "I am not".
At that point, PW2 ended his testimony.
Richard N. Chenge then applied for his witness to stand down from the dock.
Richard N. Chenge, the Director of Public Prosecution informed the court that he has his last witness to call who was present in court.
Following the calling of the third and last prosecution witness (also name withheld) in the witness box, the DPP asked him to recall his mind to the 15th of June 2009, and whether he knows all the accused persons. He responded in the affirmative.
PW3 adduced that he knows the second accused person, Pap Saine, whom he said is the Publisher and Managing Editor of Point Newspaper and also a member of the Gambia Press Union. He also said that Sarata Jabbi-Dibba is the 1st Vice-President of the Gambia Press Union and also a freelance journalist working with the Point Newspaper.
Pa Modou Faal, he said, is the Treasurer of the G.P.U and a sports reporter with the Point Newspaper. He said he also knows the 5th accused, Abubacarr Saidykhan as a photojournalist with Foroyaa Newspaper and also a member of the Gambia Press Union.
He further elucidated that Sam Sarr is the Editor-in-chief of Foroyaa and a member of GPU, and that Bai Emil Touray is the Secretary-General of the same union and works with Foroyaa Newspaper.
He testified that on 15th June 2009, he received an order to invite members of the Gambia Press Union in connection to a press release relating to an interview made by the President about the dead of Deyda Hydara. He said after their arrest, they were questioned about the aforementioned article, the source of the article and the distribution of the article and the role each played in the publication of the same.
Still testifying, PW3 said that during investigations, Sam Sarr was invited from Foroyaa, while Ebrima Sawaneh came from the Point Newspaper.
He told the court that Sam Sarr was not co-operative and did not answer any question.
He said that Ebrima Sawaneh of the Point Newspaper had revealed that Pap Saine, the second accused, asked him whether he (Sawaneh) have received the said press release. He further testified that during investigations, it came to light that Pa Modou Faal had downloaded the article from his inbox to his memory stick, and then gave it to Ebrima Sawaneh, which was later published without unedited.
He continued that Pap Saine is the Publisher of the Point Newspaper. He said that, according to Sarata Jabbi Dibba, she received the article through an e-mail from Ndey Tapha Sosseh, the President of the Gambia Press Union, who urged her to look for space in the Point Newspaper for publication.
He told the court that Pa Modou Faal downloaded the message and gave it to Sawaneh, the 1st accused for publication. He adduced that he came to learn about that through Sarata.
PW3 was asked by the DPP whether he had found out from Pap Saine, if space was given. He posited that it the space was obviously given since it was published.
DPP further asked the witness "what is this message about". He answered that it is a press release from the GPU President.
The last witness told the court that Abubacarr Saidykhan did not disassociate himself from the press release and was "obstructing our officers who went to invite Sam Sarr." Still testifying, PW3 said the sixth accused, Sam Sarr, indeed published the article in Foroyaa Newpaper.
He said that Bai Emil Touray, the 7th accused, during the investigation revealed that the message was to be carried out, since they could not do much to consult with other members to stop the publication.
PW3 further stated that both the accused persons had accepted receiving the press release through an e-mail.
PW3 further stated that they facilitated in accessing their e-mail boxes and the messages were printed out from each of their email boxes and marked according to their names, which PW3 identified in court. The DPP then applied to tender the document as exhibits in court.
Lamin S. Camara raised an objection in tendering the document arguing that the proper foundation have not been laid as the said documents are computer print out and are sort to be tendered as exhibits in court, for the simple reasons that the foundation for the reception of the document have not been laid to render it admissible, as stipulated in Section 22 of the Evidence Act. He argued that statements produce by computer, in compliance with Section 22 sub section- (1), is mandatory with "shall" and all conditions listed in sub section 2-(a) must be met before they are laid.
Lamin S. Camara further submitted that the witness did not tell the court the functions of the computer, how the information was fed into the computer, whether the computer is functioning regularly and how the information came by conjunction, noting that all these conditions must be satisfied.
Counsel Camara went on to read Section 22 of the Evident Act, saying that this section is the most difficult and the longest part of the Evidence Act of 2004. Camara then defined computer "as a means of any device for processing and storing information, any reference been derived from other information is a reverence to it being derived by calculation comparism or any other person".
"The witness needs to lay all foundations to tender the documents. Compliance of Section 22 is not negotiable and admission of any document of this nature produced by computer," he stated.
Richard Chenge, in his reply, stated that what is said in Section 22 is subject to rule of the court and Section 3 subsection- (1), the case of admissibility is relevant and the witness facilitated with the accused to produce the documents and it will be ridiculous to object to a document they produce. DPP further submitted that the accused should not gain from what they choose to do.
Further objecting Lawyer Camara submitted that relevance is not the sole determinant for admissibility. He submitted that it is a try law that the statue are to be interpreted literally and should be clear from the wording and language. Lawyer Further submitted that "Section 3 sub section-(1) should be read in tandem with other rules that qualify it and Section 3-(1) the operative words of Section 3-(1) and Section 22 (1) is contained in the same Act which is an Act of Parliament".
However, the court found the document tendered as relevant to the issue before the court and then dismissed the objection raised by the defence.
During cross-examination by Lawyer Camara, PW3 said that he was not present went the cautionary statements of the accused were taken, but he confirmed that PW1 had cautioned Pap Saine and recorded his statement.
PW3 further testified that there is no indication in the statement that PW1 had indeed cautioned Pap Saine before taken the statement.
When he was given exhibit G for confirmation, he said the cautionary statement of Bai emil Touray reads "reserve my statement for posterity". He said neither did he take any statement nor was he present at the time of recording the statements of the accused persons. PW3 said that Abubacarr Saidykhan recorded himself and no officer had cautioned him. PW3 testified that this trend applied to all the other accused persons, except Sam who refused to make any statement. PW3 stated that the message (article) was sent to more than 18 people, as it was copied to lots of people.
PW3 when given exhibit C to H to show any indication as to whether there was any officer present at the time of undertaking the statement, he responded no. And then lawyer Camara asked him when you caution somebody, are you not obliged to write it down, he replied in the affirmative.
Camara further asked PW3 whether he knows Tijan E Bah, he replied in the affirmative but he claimed that he neither know where he works nor did he knows whether he is literate in English.
PW3 stated that he is not familiar with computers but only to check mails.
PW3 further stated that there is no publication in exhibit I. At this point, Counsel Camara put it to PW3 that whether downloading an email tantamount to publication. In reply, PW3 responded in the affirmative.
Counsel Camara then put it to PW3 whether he personally investigated the matter, he said "no I was part of the panel that invested the matter".
PW3 further testified that he did not know every member of the GPU nor did he know the criteria for their membership.
PW3 then testified that all accused persons had confessed that they are pressmen, but did not mention in their statements that they are journalists.
At this point, PW3 was given exhibits A and B (the Foroyaa and the Point Newspapers, respectively) to trace his opinion in the articles. PW3 then said, "I did not even read the articles properly."
At that juncture, he was given time to go over the two exhibits (the two newspapers) and subsequently came up with two paragraphs that he deemed to have form his opinion.
When counsel Camara put it to him whether those two paragraphs are part of his opinion. PW3 answered "I don't think my personal opinion counts".
Under cross-examination by the sixth accused, Sam Sarr, the witness was squeezed as to his testimony that Ndey Tapha is in
He then put it to PW3 whether taking pictures of him, (Sam Sarr) by the 5th accused person, Mr. Saidykhan tantamount to obstructing security officers in their investigation. PW3 responded, according to our investigations after 5th accused knew that the visitors were security operatives, then started taken snaps of photograph.
PW3 confirmed that the sixth accused was arrested on 15th June 2009, but refused to say anything. Mr. Sarr then asked PW3, what was his reason of not saying anything, PW3 replied, "you said you prefer to reserve your opinion".
Sam Sarr then put it to PW3 that "after 24 hours of my arrest, I was not told the reasons of my arrest." The witness replied that, "I did not remember that".
Sam Sarr further asked PW3 why he (PW3) did not ask him the reason why he would not make a statement. PW3 said "I just came to ask you since you were my former teacher".
Mr. Sarr then referred PW3 to exhibit A (Foroyaa Newspaper) and asked PW3 whether he could remember the President saying in that interview who killed Deyda Hydara and remarked that "let them go and ask Deyda Hydara". PW3 answered, "he said something like that".
Sam Sarr further put it to PW3 that the President added that there were two ladies who are still in
Sam Sarr further asked whether PW3 knows the two ladies, but PW3 responded in the negative.
Mr. Sarr further asked whether after the report that was made in 2004 was followed by further investigation, PW3 answered in the affirmative.
Mr. Sarr further asked PW3 whether he (PW3) is not aware that Nian Sarang Jobe is in the
Sam Sarr finally asked PW3, who killed Deyda Hydara? PW3 responded "how can I know".
At that juncture, the Director of Public Prosecution, Rachard N.Chenge announced to the court that, that was the case for the prosecution.
Hearing continues today for defence.