Aug 17, 2015, 12:01 PM
Justice Emmanuel Amadi of the high court in Banjul has set 15th July 2010 as the day he is expected to deliver judgment in the treason trial involving Lt. Gen Lang Tombong Tamba and seven others.
The other accused persons are Bri. Gen. Omar Bun Mbye, Col. Lamin Bo Badjie, Lt. Col. Kawsu Camara (alias Bombardier), Modou Gaye, Gibril Ngorr Secka, Abdoulie Joof and Yusuf Ezzideen (alias Rambo).
This follows the adoption of briefs filed by both the prosecution and the defence, during yesterday's proceedings.
When the case was called, Pa Harry Jammeh, the Solicitor General and Legal Secretary, announced his representation for the state together with the Director of Public Prosecutions, Richard N. Chenge and deputy Director of Public Prosecutions, M. Abdullahi.
Defence counsel SM Tambedou, Pap Cheyassin Secka and Hawa Sisay-Sabally also announced their representation for the accused persons.
Defence counsel SM Tambedou then rose and told the court that he was objecting to certain paragraphs in the reply on points of law filed by the DPP.
"When my lord made an order for briefs to be filed, the court had intimated that the DPP had a right to reply on points of law. I have been served with what is headed 'DPP's reply on points of law on all the accused persons briefs'."
"It is not a reply on points of law, but a reply on the submissions made by the accused persons," counsel Tambedou told the court. He further submitted that it was a 28-point reply, but an examination of the reply will show that, except for a few points of law, it was a reply on facts in some cases re-arguing law which he, the DPP, introduced in his brief.
"For this reason," counsel added, "I humbly apply to strike out those points in reply."
Defence counsel Pap Cheyassin Secka said "I associate myself with the objection of my learned colleague, SM Tambedou, with respect to the paragraphs cited in the DPP's reply on points of law to the defence briefs.
Defence counsel Hawa Sisay-Sabally also objected to the DPP's reply on points of law to the defence briefs.
She cited the paragraphs of the DPP's reply on points of law to the defence briefs, and urged the court to strike out those paragraphs, as they were not in conformity with the law with regards to replying on points of law.
Meanwhile, senior defence counsel PC Secka on behalf of his colleagues thanked the court for the good manner it conducted the proceedings. He also thanked the security forces for their cooperation with both the prosecution and defence during the proceedings.
PC Secka also thanked and commended the press for their accurate reporting of the entire proceedings, which according to him had indeed helped them.
Written address of DPP on Lang Tombong & Co
The director of Public Prosecution (DPP) Richard Chenge has filed the prosecution address in the ongoing treason trial involving the former chief of defence staff of The Gambia Armed Forces (GAF),Lang Tombong Tamba and seven other accused persons charged with the criminal offences of conspiracy to commit treason and treason before Justice Emmanuel Amadi of the High Court in Banjul.
At the close of the entire evidence, both the prosecution and the defence were ordered to file their written addresses.
It could be recalled that the accused persons, Lang Tombong Tamba, Omar Bun Mbye, Lamin Bo Badjie, Modou Gaye, Kawsu Camara alias Bombadier, Gibril Ngorr Secka, Abdoulie Joof alias Lie Joof and Youssef Ezzeedine alias Rambo are charged with three counts of conspiracy to commit treason and treason, contrary to Section 35 (a) (d) and (g) of the Criminal Code Cap 10, Vol. III Laws of The Gambia.
The DPP, after a comprehensive summary of the entire evidence, made the following submissions in a 50-page document. That the prosecution witnesses are consistent and harmonious in their evidence. DPP gave examples as follows: that PW1, Ebrima Marreh gave evidence that he saw all the accused persons except the sixth accused (Gibril Ngorr Secka) holding meetings in the house of the first accused, Lang Tombong Tamba and the third accused, Lamin Bo Badjie. DPP Chenge's submissions noted that the evidence of PW1, Ebrima Marreh was corroborated by PW15, an NIA officer, who said he received the information from PW1, Ebrima Marreh, consequent of which he arrested all the accused persons.
The DPP's submissions further revealed that PW1, Ebrima Marreh said in his evidence that the seventh accused, Abdoulie Joof and the eighth accused, Youssef Ezzeedine came into one of the meetings and gave money to the first accused, Lang Tombong Tamba to finance the coup and the first accused called PW2, Rui Jabbi Gassama in Guinea Bissau to come to The Gambia and collect the money for the purpose of the coup plot.The DPP advanced that PW2, Rui Jabbi Gassama corroborated that evidence by saying that he actually came and collected the money from the first and third accused persons.
DPP Chenge further advanced that PW1, Ebrima Marreh gave a vivid description of the two storey buildings owned by the first accused in Bijilo.He (DPP) submitted that PW2, Rui Jabbi Gassama also gave a vivid description of the same building belonging to the first accused in Bijilo and the defence did not deny the description. The submission also revealed that PW1 Ebrima Marreh said in his evidence that he was sent on a spying mission to Farafenni Military Barracks by all the accused persons and that PW9, Lt. Col. Yorro Jallow, the commanding officer at Farafenni Barracks confirmed this in his evidence that he actually arrested PW1, Ebrima Marreh, whilst he was on that spying mission.
The submission further revealed that PW1, Ebrima Marreh said he was directed by the accused persons to deceive senior officers of the Armed Forces so as to gain access to Farafenni Barracks and that PW10, Lt. Gen. Mansanneh Kinteh, the CDS of GAF confirmed that he was deceived by PW1, Ebrima Marreh who gained access to Farafenni Barracks.The submissions noted that PW1, Ebrima Marreh said the fourth accused, Lt. Col. Kawsu Camara lived at Kanilai Farms and was assigned to monitor the president so that he can be attacked and killed by the coup plotters.
The DPP also advanced that the fourth accused, Kawsu Camara admitted in his evidence that he actually lived in Kanilai Farms and was close to the President like his son, thereby confirming PW1, Ebrima Marreh's evidence. The submissions disclosed that PW1 Ebrima Marreh in his evidence said he called the first accused, Lang Tombong Tamba, the fourth accused, Kawsu Camara and the fifth accused, Modou Gaye on phone at various times, but the accused persons denied this, and the telephone printout confirmed that those calls were made and received.
The submission further disclosed that PW2, Rui Jabbi Gassama said that all the accused persons delegated the sixth accused, Gibril Ngorr Secka to engage him to buy a boat called Mar de Bissau in Cachew in the Republic of Guinea Bissau and PW15 and PW8, both investigating NIA officers later went to Cachew and saw the boat; and the owner of the boat, Rui Damas admitted in a written statement tendered as exhibit P26 that PW2, Rui Jabbi Gassama actually came to him to buy the boat called Mar de Bissau.
The DPP's submission also noted that PW2, Rui Jabbi Gassama said all the accused persons delegated the sixth accused, Ngorr Secka and Kukoi Samba Sanyang to engage him to make Juju at a marabout's place in Guinea Bissau called Conkage Suwareh for the success of the coup. The submissions revealed that none of the accused persons disputed this evidence either in cross-examination or in their defence. The DPP submitted that the defence thereby admitted the evidence of PW2, Rui Jabbi Gassama by their silence. In the submission, DPP went on to point out several examples of harmony in the prosecution?s evidence and submitted that the little discrepancies in the prosecution's evidence were characteristic of the truthful witnesses as no natural human being can be expected to remember everything whilst giving evidence.
DPP Chenge cited Supreme Court authority of Ikemson versus the State to back up his argument. In this regard, therefore DPP submitted that it was irrelevant whether the place of conspiracy was in the air, on land or in the sea, but so long as a conspiracy was made. The DPP cited the supreme court's case of Patrick Njovens versus the State to back up his argument and noted that it was irrelevant whether PW2 Rui Jabbi Gassama was paid before or after the training of the mercenaries, so long as he was paid by the accused persons. DPP Richard Chenge also submitted that one call made by PW1, Ebrima Marreh did not appear on the printout and as the evidence of the specialists from Africell, Gamcel, Qcell and Comium stated, it is possible that some calls may not appear, because stored data when retrieved could be lost.
The DPP submitted that there was vicious contradiction with the defence's evidence as evidence, which no reasonable court can believe. The DPP gave examples that the first accused, Lang Tombong Tamba in his evidence-in-chief openly admitted conspiring with all the other accused persons to overthrow the government of The Gambia by force of arms, when alarmed by his counsel, S.M. Tambedou that he was confessing the offence, the first accused then retracted his confession in the open court and turned round to deny the conspiracy. The DPP submitted that the first accused stated that he stopped the 2006 coup with the assistance of the second accused, Omar Bun Mbye, the third accused Lamin Bo Badjie and the fourth accused, Kawsu Camara, but the second accused Omar Bun Mbye in his evidence-in-chief expressly denied the first accused's claim.
The DPP submitted that the first accused in his evidence-in-chief admitted being very close to the second accused, Omar Bun Mbye; the third accused, Lamin Bo Badjie; the fourth accused, Kawsu Camara; the fifth accused, Modou Gaye; the sixth accused, Gibril Ngorr Secka; the seventh accused, Abodulie Joof; and the eigth accused, Youssef Ezzeedine; but under cross-examination, he openly denied being close to them. The DPP submitted that the first accused, under cross-examination unbelievably said that he did not know whether he has a license for the 100 rounds of ammunition found in his possession.
DPP Chenge further submitted that the 1st accused could not give any reason whatsoever, why he was still in possession of about 28 military uniforms, over half of them were military camouflage uniforms after he had been dismissed from the Gambia Armed Forces and dekitted. DPP also submitted that the first accused gave evidence that when he heard of the 2006 coup plan by Ndure Cham he tried to inform the president but could not because of protocol, but under cross-examination the first accused admitted that he and Ndure Cham were subsequently at the airport with the president on his way to the Republic of Mauritania.
He submitted that the first accused could not explain why he did not inform the president at the airport about the coup when Ndure Cham was physically there at the airport. DPP Chenge went on to give other examples of serious contradictions in the defence and also other unbelievable evidence. He concluded that the entire evidence given by the defence is a tissue of lies. He submitted that all the ingredients of the offence of conspiracy to commit treason and the offence of treason as provided in the criminal code has been satisfied by the evidence of all the prosecution witnesses.
The DPP further argued that PW1, Ebrima Marreh may be regarded as an accomplice and cited the case of R versus Okoye to back up his submission. He submitted that PW2, Rui Jabbi Gassama cannot be regarded as an accomplice because he stated that his intention of entering the coup was to know their secrets and reveal it to The Gambia government and this evidence is supported by his action in reporting them to the president and in deceiving them at an earlier stage to offer the juju sacrifice in Bissau in the morning instead of in the evening as prescribed by the marabout so that the juju would fail. The DPP submitted that such a person is called an agent provocateur, whose evidence is good and does not require corroboration and whose evidence can corroborate the evidence of other witnesses like PW1, Ebrima Marreh who is an accomplice.
He cited the English case of Browning versus Watson and the Nigerian case of R versus Gibert Fanigbo to back up his submission.
The DPP submitted that on the issue of corroboration in Law, the evidence of one witness does not have to corroborate everything another witness said, so long as it supports that evidence in a material respect, implicating the accused persons. The DPP cited a Gambian case of Badjie versus the State and a Nigerian Supreme Court case of Iko versus the State to back up his argument and also cited Section 214 of the Evidence Act which provides that evidence of a fact that occurred near to the place of the alleged offence if proven amounts to corroboration.
DPP Chenge also cited Section 215 of the Evidence Act which supports the reports made by PW1 and PW2, to PW15 the NIA officer as adequate corroboration. He further cited Section 10 of the Evidence Act which provides that once a conspiracy is prima facie established in evidence anything said, done or written by any of the conspirators in furtherance of the conspiracy is deemed to be the act of all the conspirators, whether they know about it or not. The DPP submitted that since the defence had made a no-case submission before, which was overruled and the court said there was a prima facie case against the accused persons, under Section 10 of the Evidence Act, then all the acts of the sixth accused in Guinea Bissau with PW2, are deemed to be the act of all the accused persons and it amounts to corroboration of the prosecution witnesses.
DPP Chenge also advanced that similarly the individual acts of the first accused in possessing suspicious military uniforms and ammunition in his house amounts to the act of all the accused persons and it further amounts to corroboration of the prosecution?s evidence. The DPP cited the case of Shande versus the State to support his argument that the confession made by the first accused in the open court that he conspired with all the other accused persons to overthrow the government of The Gambia and subsequently retracting the confession does not stop the court from acting on that confession. He further submitted that by virtue of Section 180 Sub-section 3 of the Evidence Act, since the first accused made this confession whilst in the witness box, implicating all the other accused, the said confession is admissible against all the other accused persons and the conviction can be based solely on it.
The DPP went further to state that there are various evidences by the prosecution which went unchallenged by the defence and that this amount to admission of those evidence. The DPP gave an example that throughoutthe period PW1, Ebrima Marreh gave evidence of the conspiracy in the house of the first accused and the third accused, implicating all the accused persons except the sixth accused, the defence never cross-examined him on the aspect of conspiracy but wasted their time attacking his character and the defence are therefore deemed to have accepted his evidence as to the conspiracy by not challenging it during his cross-examination.
The DPP described the subsequent denial of the conspiracy by the accused persons in their defence as medicine after death, since they have already accepted the evidence by not cross-examining PW1 on it. He cited the book written by Afebabalola on evidence and Aguda on evidence to back up his argument. The DPP finally submitted that the mandatory punishment for conspiracy to commit treason under which the accused persons are charged, where the intention of such conspiracy is to kill the president as in this case is death sentence.
He therefore called upon the court to convict the accused persons as charged and sentence all of them to death. The Defence is expected to reply to the DPP?s submission within seven days after which the court, presided over by Justice Emmanuel Amadi would adopt the addresses on July 5, 2010.
Courtesy of Daily Observer Banjul, The Gambia.
End of Treason Trial
Brief of Senior Defence Counsel P.C.O. Secka
In his reply to the brief of arguments submitted by the Director of Public Prosecutions, Richard Chenge, in the ongoing treason trial involving Lang Tombong Tamba, the former chief of defence staff and seven others, defence counsel Pap Cheyassin Ousman Secka, has urged the trial judge, Justice Emmanuel Amadi of the high court in Banjul to hold that the prosecution failed to prove the case against his clients, who should be acquitted and discharged.
"I wish to make a general comment that it is unfortunate that the state relies on the testimonies of PW1 (Ebrima Marreh) and PW2 (Rui Jabbi Gassama), people of shady character and without substance, to tarnish the image of people who, on the average, have given two and half decades of loyal, unblemished and devoted service to their nation," he said.
"This case resembles a mountain in labor and delivery is a pitiful mouse. It is more aptly described by Shakespeare as 'a tale told by an idiot, full of sound and fury but signifying nothing.' No disrespect intended!!!" he added.
The accused persons, Lang Tombong Tamba, Omar Bun Mbye, Lamin BO Badjie, Kawsu Camara, Modou Gaye, Gibril Ngorr Secka, Abdoulie Joof and Youssef Ezzedine are charged with the counts of conspiracy to commit treason and treason contrary to Section 35(a) (d) and (g) of the Criminal Code Cap 10, Vol. III Laws of The Gambia 1990.
At the close of the case, both parties were ordered to file briefs, and DPP Richard Chenge filed the prosecution's briefs.
The DPP urged the court to convict and sentence all the accused persons to death, noting that the prosecution has sufficiently established a prima facie case against the accused persons.
P.C.O Secka is representing the second accused person, Omar Bun Mbye, the third accused, Lamin Bo Badjie, the fifth accused, Modou Gaye, the sixth accused, Gibril Ngorr Secka, and the seventh accused, Abdoulie Joof.
P.C.O Secka raised some 67 points stating why the court should acquit and discharge the accused persons.
He submitted that Count Three (S.35 (1) (d) of the indictment is bad in law. He said the indictment is defective in a way material particular by omitting, from the particulars of offence, the very essence of the offence created by section 35 (1) (d) of the Criminal Code.
"The offence charged, being at complete variance with the offence created by the said section, was therefore an offence unknown to the law," he said.
"It is, therefore, caught by the law which provides that where the facts stated in the indictment do not amount to an offence known to the law, a conviction based on it will be quashed," he added. He then urged the court to see "Archbeld Criminal Pleading Evidence and Practice Vol. 1995 ED Para 7-86; DPP Vs Withers (1975) A. C. 60 (H.L)
He urged the court to strike out the said count.
On Count One, which relates to section 35 (1) (g) of the Criminal Code Cap 10 Vol. III, 1990 Laws of The Gambia, P.C.O Secka submitted that "the particulars of the offence unmistakably stated that the accused persons conspired to stage a coup d?etat and overthrow the President and democratically elected government of The Gambia by force of arms..." He submitted that a charge under S. 35 (1) (g) must specify any (not all) of the purposes specified in paragraphs (a) to (f) of S. 35 (1).
"It is also submitted that the specified purpose which the accused persons are charged with conspiring to effect falls under section 35(1) (a) and not section 35 (1) (f)."
He posited that this is so because each of the specified purposes in paragraph (a) to (f) of section 35 (1) constitutes a separate offence; and it is therefore trite law that a charge cannot contain more than one offence.
"The DPP is clearly in error when he stated on page 50 of his brief of argument that "if the accused persons are charged under section 35(1) (g) of the Criminal Code for conspiracy, which includes in its ambit section 35 (1) (f); i.e. killing or attempting to kill the head of state, the establishment of such an intention in the evidence adduced by PW2 (Rui Jabbi Gassama) ought to make the death sentence mandatory under section 35 (1) of the Criminal Code.
"In other words, since the mischief rule is to prevent killing of the President or any other Government official in the course of treason, the mandatory death sentence must necessarily be read into section 35(1) (g) for conspiracy to kill the President if evidence so disclose."
"I respectfully submit that the DPP is in error. Firstly, the charge under section 35 (1) (g) does not cite "a conspiracy to kill the President" as a specified purpose. Secondly, no evidence can be adduced to prove an offence not charged to have conspired to effect falls under section 35 (1) (a) and not section 35 (1) (f)," he said.
He told the court that the prosecution's case is that the accused persons conspired and/or prepared or endeavoured to overthrow the Government of the Gambia by unlawful means. And to prove their case, the prosecution called a total of 16 witnesses.
He said in regard to the 2nd, 3rd, 5th, 6th and 7th accused persons, having regard to count one, the following exhibits were tendered.
Exhibit P5 was the cautionary statement of the fifth accused; P6A/P6b the voluntary statement of the fifth accused; P7 the cautionary statement of the sixth accused; Exhibits P8A/P8B voluntary statements of the sixth accused.
P10 the cautionary statements of the second accused; P11, cautionary statements of the third accused; Exhibits P11B/11C voluntary statements of the third accused; P13 cautionary statement of the seventh accused.Exhibits P14A to P14J, photographs of the boat, Mar de-Bissau; Exhibit P15, the Samaritan Restaurant; Exhibits P15, P17 and P18, photos taken at the identification parades; Exhibit P19, printouts of telephone calls from Africell; Exhibit P20 Gamcel telephone printout; Exhibit P21, the Comium printout; Exhibit P22, the Qcell printout; Exhibit P23, the list of witnesses accused telephone numbers; Exhibit P24, Daily Observer edition of 12th of October 2009; Exhibit P25 printout of allGambian.net dated the 8th of April 2010; and Exhibit P26 the boat owner Rui Damas statement taken by PW16.
Lawyer Secka noted that the cautionary statements of the 2nd, 3rd, 5th, 6th and 7th accused persons were tendered as prosecution Exhibit P10, P11, P5, P7 and P13 respectively, but none of the statements of the prosecution witnesses were tendered in evidence.
He further highlighted that all the 2nd, 3rd, 5th, 6th and 7th accused persons each gave evidence, which conforms (and confirms) in all material particulars in their statements which were tendered in evidence by the prosecution.
He submitted that with the possible exception of the 6th accused, PW5, PW6, PW7 and PW15 categorically stated under cross-examination that their investigation did not reveal anything to contradict the statements of the respective accused persons tendered in evidence.
"In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the same, may be proved." He cited section 215 of the Evidence Act, 1994.
He submitted that the cautionary statements of the second, third, fifth and sixth accused persons corroborate their respective testimonies and that the oral evidence of PW15, the NIA officer, of the contents of the statements of PW1, Ebrima Marreh and PW2, Rui Jabbi Gassama, before the court to not (and cannot) corroborate the testimonies of PW1 and PW2, which he described as no evidence of the truth of those statements.
Lawyer Secka also submitted that the statement of Rui Damas (Exhibit P26), allegedly taken (and tendered) by PW16 cannot corroborate the evidence of PW2 in respect of the matter relating to the purchase of the boat because one: the statement of a person not called or available as a witness is of no evidential value, and two: there is nothing in Exhibit P26 which states why PW2 wanted to buy the boat.
He further submitted that at the close of it's case, the prosecution provided sufficient corroboration of the second, third, fifth, sixth and seventh accused persons testimonies; their investigation revealed nothing to the contrary; with the result that they are left with nothing but the isolated, solitary and uncorroborated testimonies of PW1 and PW2.
"I wish to adopt all the arguments (legal and factual) that I advanced in my submission of "No case to answer for the 2nd,3rd , 5th , 6th and 7thaccused, dated and filed on the 7th day of May, 2010," he told the court.
He said he is also associating himself with the submission of counsel for the first and fourth accused, lawyer S.M. Tambedou, and counsel for the eight accused, Lawyer Hawa Sisay-Sabally, respectively and also their final replies to the briefs of arguments of the DPP.
Dealing with the points raised by the DPP, Lawyer Secka argued that on pages 1 and 2 of the DPP's brief, PW1 Ebrima Marreh initially stated that only six of the eight accused persons attended meetings, but on the following day, he said it was seven of them.
P.C.O Secka further argued that in the evidence-in-chief of PW1, Ebrima Marreh, on the 22nd of March 2010, he (PW1) was asked if he knew the second accused, but when he returned to the court the next day, after being seen by counsel for the second accused in the DPP's office, he predictably changed his evidence and identified the second accused.
The defence counsel further argued that PW1 mentioned that in the second meeting, he was informed that PW2 will come to collect the funds and in a couple days PW2 came and P.C.O Secka pointed out that the evidence of PW1 suggests (contrary to what PW2 said) that PW2 was in The Gambia at the time.Whereas PW2, under cross-examination by him (P.C.O Secka) said that he was here for two weeks, and attended three meetings, the first two at the house of the third accused and the last one at the house of the first accused.
P.C.O Secka submitted that it is clear from the telephone printouts that PW1 Ebrima Marreh did not call the fourth accused and the fifth accused on the 19th of November 2009, but did call PW10 and the then deputy CDS on that day and received three calls from the then deputy CDS, and he also called the former IGP Badjie many times since November 2009.
Secka submitted that these three people, including the incumbent DG of NIA, were the ones PW1 mentioned as the very people who sent him.
Is it without suspicion that the allegations PW1 made were investigated by the same people he implicated, and who kept him in their custody? P.C.O. Secka asked.
P.C.O. Secka also asked if it is reasonable to expect PW1 to maintain his original story while he was still in the custody of the people whom he levelled the serious allegations against?
Is it any wonder that, in the safety of the court precincts (and having taken the oath), PW1 repeated that the people he named as having originally sent him as the DG of NIA, Ex-IGP, DES of NIA and others but not any of the accused persons, P.C.O Secka further contended.
P.C.O Secka submitted that both PW1 and PW2 could not remember the dates and time of the meetings. He argued that PW1 stated that he was informed of the coup by the first and fifth accused, after the first accused was dismissed. However, under cross-examination by lawyer Tambedou, PW1 said the first accused was then in service.
It means that PW2 was alleged to have been paid after the first accused was dismissed, Secka stated, since PW2 had said he was here for two weeks after the first accused was dismissed, attended three meetings, was paid, then went back to Guinea Bissau, where he started the training which lasted for 45 days after a week (around the end of October 2009 and could have ended in mid-December 2009), well after 27/11/09, the so-called Black Friday Tobaski Day, Secka further stated.
P.C.O Secka contended that both PW2 and PW15 said that there was no visit to the training camp because no one was there as training had ended. Secka submitted that it is quite obvious that even if training had ended, one would have discovered tell tale signs of the presence of 300 people for a period of 45 days, the presence of spent shells or cartridges, human faeces, something to show that the place was occupied by the said number of people for the alleged length of time.
Secka argued that Bambadinka was never mentioned by PW2 when he met with PW15 at the detention centre in Bissau, and when it was subsequently mentioned by PW2 in Banjul in December, neither PW15 nor any member of the investigation team visited the alleged training site.
P.C.O Secka submitted that the excuse that no visit was made to the alleged training site, where the training took place, because the training had ended is lame, unprofessional and untrue. Secka submitted that the prosecution failed to explain why the former IGP, Ensa Badjie, or any of the people PW1, Ebrima Marreh, first mentioned in Farafenni were not independently investigated, even though three of the six people PW1 first mentioned had telephone contacts with PW1, Ebrima Marreh, on the 18th and 19th of November 2009.
Secka pointed out that it is both irregular and unacceptable to have someone investigate an allegation as serious as treason made against him, of which it is more likely for the person to exonerate himself by doing whatever he can to shift the blame on others.
He noted that a more sensible investigative process deserves (indeed demands), that all the people named by PW1 (including the accused persons) be thoroughly (and professionally) investigated by an independent panel of investigators.
Secka submitted that the DPP wants to misuse the grammatical slip made by the first accused, Lang Tombong Tamba, to mislead the court. Land Tombong had said, "I deny that I have not conspired with the 3rd accused and all the other accused person to overthrow the democratically elected government of The Gambia." It is unfair to say that the 1st accused grammatical slip amounts to making a confession, he further noted.
Secka contended that all the accused persons said the DPP asked them to change their respective statements; and that they refused because they knew nothing about the alleged coup. Secka further contended that none of the accused persons said the DPP asked them to say the truth and they will be released which were the DPP?s own words during cross-examination of the respective accused persons.
Secka submitted that it was an inducement to get the accused persons to confess to a crime they didn?t commit. Secka contended that the first accused said that both he and Ndure Cham were at the airport to see the President off.
He pointed out that, at that time, the first accused did not have evidence as concrete as the audio recordings, and that there was no way the first accused person could have attempted to inform the President without alerting Ndure Cham. It was while the President was away that the first accused went ahead to foil the coup, and inform the President, he said.
Regarding the telephone printout, lawyer Secka submitted that it is clear from the printouts that PW1 (Ebrima Marreh) did not call the 4th and 5th accused on the 19/11/09 as claimed.
"He actually called PW10 and the Deputy CDS on that day and received three calls from the Deputy CDS. He also called the former IGP Badjie many times since November, 2009. These three people, including the incumbent DG/NIA, were the ones he mentioned as the ones who sent him," he submitted.
He said that the DPP's claim that there was a heavy traffic of calls between each of the accused and the first accused as misleading. He pointed that PW1, Ebrima Marreh, only made 16 calls, 9 to the fourth accused, six to the fifth accused, and one to the first accused, and that the duration for all those 16 calls is 0.008 percent as PW1 did not speak to them.
He noted that said PW1 called from 7854500 to the first accused number, 9961411, and it lasted for 6 seconds and noted that the call was after midnight, on the 25th of October 2009, as PW1 probably got DW1's answering machine.
Secka added that the calls made between the first, second, third, fourth and fifth accused persons were all made before the first accused was removed from office. He further noted that PW1, Ebrima Marreh, made 10 calls and sent 15 SMS to number 9960288 (Ex-IGP Badjie) between the 1st of November 2009, and that the call time between them was about 16 minutes.
"Is it without suspicion that the allegations PW1 made were investigated by the same people he implicated and who kept him in their custody?
"Is it reasonable to expect PW1 to maintain his original story while he was still in the custody of the people whom he leveled the serious allegations against?
"Is it any wonder that, in the safety of the court precincts (and having taken oath), PW1 repeated the people he named as having originally sent him as the DG NIA, IGP, DES/NIA and others, and not any of the accused. This was freely given by PW1 in answer to questions in cross-examination," he submitted, and then referred the court to see pages 9-10 of his brief on the No Case Submission.