BABA JOBE’S TRIAL

DEFENCE COMPLAIN OF LACK OF ACCESS TO WITNESSES
PART 12

The head of the defence team, Mr. Edu Gomez told the court during
Tuesday’s proceedings that his team decided to call 7 witnesses namely:
Buba Senghore, Kuru Kongira, Standard Chartered Bank, Permanent Secretary
Finance and Economic Affairs, the Secretary General President’s office,
Baba Kanteh and Baba Jobe. He then informed the court that they planned
to call their 7 witnesses in the sequence listed above but they have
found it virtually impossible since they could not get access to Buba
Senghore and Kuru Kongira who were in detention incommunicado.

Mr. Gomez went further to add that even the first accused, Baba Jobe had
not been accessible to them as defence lawyers. He then asserted to the
court that because of this they were handicapped to proceed. In his reply
to the defence’s claims the DPP told the court that when the defence
previously raised the issue of their lack of accessibility to the first
accused, the Attorney General advised the Inspector General of Police to
be allowing the defence access to him as a client. The DPP claimed that
since then Mr. Gomez never claimed of lack of access; that Mr. Mai Fatty
who had a series of meetings with Baba Jobe in detention as indicated by
the records would not claim so. The DPP further charged that there is
nothing holding the defence in not starting with Baba Kanteh, the
Permanent Secretary, Standard Bank and the Secretary General who were all
not in detention. As for those detained he posited that the defence
should know that they are charged with offences that are not bailable. In
response to the DPP’s claims, Mai Fatty challenged the DPP to produce the
document that would show that he had made several visits to Baba Jobe at
the Police Training School. He asserted with repeated emphasis that if
the document were produced it would be the biggest forgery of the
century. Then to add weight to the submission of Mr. Gomez, Mr. Lamin
Camara told the court that he was the one sent by the team to contact
Buba Senghore and Kuru Kongira. He said that he went to the Bakau Police
Station on several occasions but was not given access to Buba Senghore by
the Station Officer. He added that even when he was granted permission by
the Crime Management Coordinator he could not because the Station Officer
was not present. Regarding Kuru Kongira, Mr. Camara submitted that he had
visited the NIA several times but he could not have access to him. In his
ruling the trial judge, Justice M. A. Paul ordered the DPP to do all he
could so that the defence would get in touch with the witnesses. Justice
Paul further indicated that it is in the interest of justice to allow the
defence to meet their clients and witnesses. He stressed that it is only
in this way that the defence will not be distracted from the manner they
intend to bring their witnesses.


Issue No.12/2004, 09-11 February, 2004

Editorial

President Jammeh and the rule of Law

During yesterday’s legal year celebration President Jammeh’s theme was
"The Constitution and the Rule of Law." He emphasized that Rule of Law is
a sine qua non in our society today. On how to ensure the presence of the
Rule of Law President Jammeh noted that the state is composed of three
arms- the executive, the legislative and the judiciary. He went on to
indicate that the three are to serve the public interest. He added that
not only must justice be done and seen to be done but that it must be
done expeditiously. He was critical of the justice system, unaffordable
by the poor, and called on lawyers to answer to the call to duty by
taking meritorious cases on humanitarian basis. At this point he
emphasized the importance of judicial independence, which he described as
necessary to ensure fairness and impartiality. Soon after that he clouded
the issue by stressing that the independence of the judiciary is not
absolute; that the three arms of the state must work hand in hand; and
there is no independent judgment!! The President should simply confine
himself to the following two statements of his: "Judicial independence is
necessary to ensure fairness and impartiality… I am not interested in
interfering with your (the judiciary’s) decision." Full stop. Section 120
sub section (3) of the constitution is quite explicit: "In the exercise
of their judicial functions, the courts, the judges and other holders of
judicial office shall be independent and shall be subject only to this
constitution and the law and… shall not be subject to the control or
direction of any other person or authority."

In fact it is the responsibility of the executive to facilitate the work
of the courts as stipulated in subsection (4) of the same section: "The
government and all departments and agencies of the government shall
accord such assistance to the courts as the courts may reasonably require
to protect their independence, dignity, and effectiveness."

Needless to say, the best way the executive can assist the judiciary is
to avoid interfering with its decisions, either directly or indirectly,
whether by pressure or otherwise. Judges must feel quite comfortable in
their position without any noose around their neck, without any thought
of sacking. Secondly, the executive must respect and comply with all
court decisions, whether adverse or not. This is what an executive that
adheres to the Rule of Law and respects the constitution would do.
Furthermore, a respecter of the constitution would not continue to detain
a person beyond 72 hours without taking the person to court. One must
emphasize here that it is the adherence to the principle that matters,
not the personality concerned.

President Jammeh Should Change His Thinking

During his legal year celebration speech President Jammeh emphatically
condemned the shooting of Lawyer Ousman Sillah, the leading counsel for
Baba Jobe in his ongoing trial. He vehemently denied that they are
killers and explained at length to dissociate the state from the shooting
of Ousman Sillah. In doing so he pointed out among other things that the
state has nothing to gain by shooting an innocent lawyer, adding that he
could have shot Baba Jobe.  This is what spoilt the broth. Such a
statement coming from the highest mantle of the state is quite
unfortunate. The President has no right to carry out any extra judicial
killing. If he does so an enlightened national assembly can impeach him
and facilitate his trial for murder. What he should simply say is that "I
have no power to kill." The point is that the President should not see
himself as a powerful monarch who can do what he likes. Power resides in
the people as indicated in the preamble of the constitution: "This
constitution …. affirms the principle that power emanates from the
sovereign will of the people."

A Positive Sign

In his legal year celebration speech the president emphasized that the
executive is not an enemy of the Gambia Bar Association and that there
was no need for hostility between the two. He noted that there may be
divergence of views but what is significant is for all to work for the
well being of all Gambians. An interview we had with the President of the
Bar Association, Mr. Sam George, ended as follows: Q: Did you write to
the President’s office seeking audience?
A: I did but we never had a reaction.
Q: Did you make any follow up to find out whether the letter reached the
President or not?A: We sent a reminder and I personally wrote the second
letter. There was no acknowledgement and no answer. May be when the
President returns to his desk this week he will invite the Bar
Association for a dialogue. Both sides say they want dialogue. In the
interview, Mr. George, said "Any violation of the constitution, we will
fight it in the courts. That’s one of the reasons we asked for an
audience with the President in order to air our differences in case there
are any differences between the government and ourselves. We are not
opposed to government at all."  Let us hope the President will take the
bold step by reacting to their letter.

Independent Electoral Commission (IEC) 2003 Report

Section 42(9) of the Constitution stipulates that The Independent
Electoral Commission (IEC) "shall make an annual report on its activities
to the National Assembly." The IEC has just produced its annual report
that it intends to lay before the National Assembly. The period under
review is 2003. The issues dealt with by the report includes the
following:

Infrastructural Development

The IEC expressed concern about infrastructure and storage facilities
both at the Headquarters and the Regional Offices. It sees the physical
Infrastructural development as of paramount importance to its
independence. According to the report the hope of securing funding for
Infrastructural development was dashed when it was later learnt that the
remaining funds available to Gamworks were to be used in completing
projects that had suffered set backs. The report emphasized that it is
crucial that the structures be put in place so that the IEC would not
only be seen to be independent but ensure a spacious and conducive
working environment for its staff in order to deliver better election
services.

Transportation

According to the reports the IEC has thirteen vehicles at its disposal,
which are located at its headquarters. This is considered to be grossly
inadequate and the IEC once again appealed for seven all terrain pickup
vehicles; one for each regional office. In arguing its case for adequate
transports the report noted that "the management and update of the
electoral register depends largely on the results of effective fieldwork.
A successful field work presupposes that the regional officers know their
areas to their fingertips, they must be familiar with the villages, wards
and constituencies within their jurisdictions." The report further points
out: "The IEC intends to conduct a supplementary registration of voters
in 2004 throughout the country. Information necessary for the planning of
the exercise needs to be collected from now to enable the officers to
have a fair knowledge of the logistics involved. Deletion of deceased
persons from the register of voters is an integral part of process of
management of the voters register. The collection of date from the
villages or settlements requires some means of mobility that is not at
the disposal of the commission." The report concluded that in the absence
of means of mobility by electoral officers, it would be difficult to
carry out exercises under the mandate of the commission.

Franchise to Gambians Abroad

The IEC is mandated by law to facilitate the participation of Gambian
citizens resident abroad in Presidential elections. Section 141 of the
Elections Decree 1996 states: "The Independent Electoral Commission may
make rules for Gambians in any foreign country to vote in a Presidential
Election." Two presidential elections have been conducted since this law
took effect but Gambians resident abroad are yet to participate in
presidential elections. They did not participate in the 1996 and 2001
presidential elections. The report has revealed steps taken by the IEC
since 2002 to enable Gambian citizens abroad to exercise their right to
carve the destiny of their nation. The IEC established a taskforce, which
agreed to visit electoral management bodies in the sub region to study
how they organize voter registration and elections for their nationals
resident abroad. A delegation of the taskforce visited Senegal in May
2003. In particular they visited the Directorate of Automation of
Documents, which is responsible for the issue of identity cards, military
service booklets and other national documents. The delegation learnt
about the role of the Directorate in the registration process, the
procedures adopted to enhance and strengthen transparency and
participation of political parties in the registration process. According
to the report, "the delegation on its return to the Gambia made a report
endorsed by the taskforce. Based on the report a consultant was charged
with the responsibility of preparing a project document, a draft of which
has since been submitted to the taskforce. The report revealed that the
taskforce needed information on the number of Gambians resident abroad.
It sort the assistance of the Foreign Affairs Office to provide such
information but according to the report "after a long wait without having
the needed response from diplomatic missions abroad" the taskforce went
ahead to peg the number at 250 eligible voters per country. The report
concluded with the following recommendations:


In its Annual Report 2002, the Commission expressed concern that the
National Assembly had neither considered nor taken action on its previous
recommendations. It appealed to the Assembly to take the recommendations
seriously and arrange for them to be discussed with the Commission, with
a view to reviewing the contents of the Elections Decree. The Commission
was pleased, therefore, that it’s Vice-Chairman, Alh. Mustapha Carayol,
was invited to meet the Assembly’s Select Committee to clarify the issues
raised in the recommendations. The Commission in February 2004 is
expecting a Legal Expert from the Commonwealth Secretariat, who will have
discussions with the National Assembly, through the Honourable Speaker
and/or the Assembly’s Select Committee, with a view to transforming the
Elections Decree into an Act of the National Assembly.

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