Foroyaa Newspaper Burning Issues


Issue No. 10/2004, 2-4 February, 2004


Editorial


Ex-Vice Chairman Sabally, President Jammeh and the Resolution – The Lessons


When Sabally was arrested Foroyaa was one the papers, which refused to
rejoice. Instead we questioned the authenticity of the reports on the
alleged attempt to assassinate Jammeh and take over. Something happened,
which made Sabally and Hydara threats. In his interview with The Daily
Observer Sabally refused to explain what happened. He has also refused to
explain what happened on November 11th.

The unfortunate thing however is that he did not hesitate to claim that he
behaved in the arrogant manner he did because he was a disciplinarian. He
even added that if one pays a person the person should deliver. This shows
that Sabally learnt very little from his experience. The fact that he is
hitting soft targets and is afraid to say anything that would antagonize
Jammeh confirms that no individual has personal power. He could behave
arrogantly not because he was a disciplinarian or tough but because he had
usurped the power of the people and could order security forces to unleash
violence on the people. If Sabally was simply interested in equivalent work
for equivalent pay would he have allowed Civil Servants to leave their work
to attend his naming ceremony. In the same vein how much the important and
busy people like the Chief Justice and other people occupying important
positions are wasting petrol and time to see and receive President Jammeh
from the airport.

The evil thing about coup d’etats is that those who conduct it also appear
as if they are enticed to hold on to power because they risk their lives. It
is like entering a person’s home with a gun and then claim that it is your
bravery, which entitled you to seize that person’s property and inherit his
wife.

Let us tell Sabally that there are many Gambians who have never bowed down
to any human being on this earth or who were ready to defy them with all
their power and arrogance and who during the early days of the coup were
willing to match into prison or even be shot. However such people see it as
unprincipled to seize power on behalf of the people. They are convinced that
they only noble action true servants of the people can engage in is to lead
the people to take charge of their destiny. Only power determined why the
people is legitimate under a Republic.

To conduct coup d’etat or lead guerilla like Charles Taylor is no sign of
bravery or heroism. In many cases it is more a sign of opportunism and sheer
desire to enjoy the sweets of office. What Sabally should do is to humble
himself and repent for what happened after 11th November, families like that
of Lt. Saye are still demanding what happened to their children. We did need
people who glorify abuses of power and tyranny.

We also wish to call on President Jammeh to discourage the slavish attitude
of those who serve him pulling his chains, trying to keep him to put a shoes
and providing him with handkerchief only gives him the image of a Monarch.
He should learn from the previous regime that when he is no longer in office
these are the people who would tell the whole world how oppressive and
dehumanized they were. It is therefore best to pursue simplicity and
humanity to minimize the celebration and denunciation, which accompany the
fall of the haughty.


Baba Jobe’s Trial


Part 11


On Tuesday, 27 January 2004, Messrs Edu Gomez and Jobarteh made submissions
of no case to answer. In the last issue, we published the address of Mr.
Gomez. In this issue we have published the address of Mr. Jobarteh as well
as that of the prosecutor, Mr. Akimoyae Agim.

Mr. Jobarteh’s Address


In his address, Mr. Jobarteh wasted no time in emphasizing that no prima
facie case had been established that would warrant the defence to give
evidence. He further emphasized that the prosecution had been unable to
establish the ingredients alleged in the charges to warrant the defence to
enter their case.

Regarding Counts 1 and 2, he submitted that there has been no tax evasion
considering all the exhibits that have been tendered. For the information of
the reader, Count 1 alleges intentionally causing economic losses worth D27
million to the GPA while Count 2 alleges evasion of payment of port dues.

On Count 5, which alleges that Baba Jobe obtained credits under false
pretence, Mr. Jobarteh asserted that the evidence of Mr. Malamin Sanyang
revealed that the two cheques, AA5 and AA6, were issued as collaterals. He
added that according to the witness the customs definition of collateral in
English is a guarantee showing debts owed to Customs in the form of duties.
He then submitted that the attachment of the two cheques to single entry
forms clearly shows guarantee in accordance with the Customs Act. This, he
argued, clearly shows no criminal intention of evading tax owed to Customs.
He supported his argument by referring the court to the evidence of Momodou
Kaba Tambajang when he said that no importer could be subjected to any form
of duty payment without a proper reconciliation. He asserted that there had
been no form of reconciliation in the case of YDE. He also pointed out that
Mr. Tambanjang said in his testimony that Mr. Buba Senghore had suggested
that they shou! ld wait until the completion of the reconciliation; that Mr.
Tambajang told Mr. Senghore in reply that they should wait for the decision
of the court and abide by it.

On the issue of false pretence, Mr. Jobarteh asserted that relying on the
correct interpretation of section 227 of the Criminal Code no element of
false pretence had been established.

On Count 6, dealing with conspiracy to commit a felony, Mr. Jobarteh argued
that the prosecution had failed to established when Baba Jobe and Baba
Kanteh had joined the Youth Development Enterprise. He then submitted that
the court could not determine the conspiracy charge. He further submitted
that in a conspiracy charge, intention alone does not show proof; there must
be shown an action. He added the action in law must be in the form of
collaboration from beginning to end. He relied on the Evidence Act to
support this position.

Mr. Jobarteh submitted that since there had been no document, under
declaration, tax evasion or whatever there was no need for the defence to
enter their case.

He finally submitted that the ingredients of the offences as charged on the
accused have not been established. He therefore urged the court to acquit
and discharge the accused on the all counts.


Proceedings of 29th January 2004


On 27th January 2004 defence Lawyers Gomez and Jobarteh made submissions of
"no case to answer" on behalf of the accused persons. On Thursday 29th
January 2004, the Director of Public Prosecutions, the leading prosecutor in
this trial addressed the court on the submission of "no case to answer."


ADDRESS OF THE DPP


The DPP started by submitting that the whole submission of the defence
lawyers should be dismissed because it lacks substance. He told the court
that Mr. Gomez’s submission did in fact commit the offence. He then
submitted that since the defence had acknowledged the commission of the
offence it would be improper for them in law to argue for a "no case to
answer."

Mr. Agim then noted that the defence had not disputed that the YDE had
defaulted in the payment of D27 million and D73 million to GPA and Customs
respectively; that while conceding this they (the defence) argue that they
are debts. He submitted that the accused had not been given the chance to
accept that they are indebted. He then drew the attention of the court to
the testimony of the finance director, Mr. Samba who said that in GPA terms
debts that stay out for over a year without being paid for are termed as
losses despite the fact that GPA can go after them. Mr. Agim further argued
that the payment made by the YDE of D299, 000 to the GPA in September 2003
was not done willingly, but it was simply due to the refusal of the GPA to
allow the accused to receive their goods without payment. He also said that
Mr. Samba had also told the court that the mere declaration of the
outstanding amount of a consignee or importer as losses, does not mean that
the GPA will not follow! it up. He asserted that since the defence never
attempted to contest that portion of Mr. Samba’s evidence in
cross-examination, the court is obliged to act on that part of the evidence.

At this stage, the DPP then considered the next point, whether, taking into
account the conduct of the accused the court can conclude that the accused
had not at any stage showed unwillingness to pay. He straightaway submitted
that what the court is dealing with is revenue for the Gambian public, which
is the backbone of the state. The court, he said, should know that revenues
are budgetary estimates that are proposed on annual basis, which governments
after collection spend in the public interest. He argued that when such
revenues or payments are retarded from collection as in a case of this
nature, it simply amounts to financial losses.

He drew the attention of the court to the testimony of Mr. Tambajang that
his department collects 60 percent of state revenue and his department had
experienced a fall in revenue collection during the said period.

The DPP then asserted that there had been no willingness on the part of the
accused to pay; that all their engagements with the Customs and the GPA on
reconciliation were false tactics.

He pointed out that the defence had argued that the payment of over D73
million to Customs could only be paid after a reconciliation, which he said
the defence claimed had not been done. He also noted that the defence
contended that even without that reconciliation the accused remained
committed to pay. He then submitted that such argument lacks merit since it
was the accused themselves who delayed that process by not making the
necessary documents available to the Customs on time and even when it was
necessary as stated by Malamin Sanyang and Ousman Mboge. He also drew the
attention of the court to the testimonies of Buba Baldeh and Malamin Sanyang
who said that the reconciliation was initiated by Buba Baldeh and Buba
Senghore and was breached by the accused by not providing those documents on
time.

The DPP also submitted that another aspect of the accused persons’
unwillingness to pay is that they have been waiting for duty waivers for
three years, during which they were neither paying duties or tax to the
state. He further submitted that every time they kept on misleading the
authorities of the two institutions that they would provide duty waivers.

He argued that if all importers in The Gambia acted like this the Gambian
economy would not exist at all.

On the deposit of blank cheques as collaterals, the DPP submitted that that
was insignificant as it was done in September 2003. As for the payment of
D2.6 million to the GPA, he said that this was done because of the pressure
of the case. Regarding the 8022 tonnes of rice in GPA stores he submitted
that Mr. Samba had informed the court that the ware house rented by the GPA
to the YDE was managed by YDE and as such GPA is not in a position to know
if they have that amount of rice in stock.

Mr. Agim noted that Buba Baldeh’s testimony that Baba Jobe had the powers to
change the allocation of shares and to give what he desires for whoever
proves that Baba Jobe had the influence to move out the 66 consignments from
the ports with the help of the acting managing director of YDE.

He finally urged the court to dismiss the "no case to answer" submission and
to call on the defence to enter their case.


Ruling

On the following day, the trial judge dismissed the submission of "no case
to answer". He ruled that the accused have a case to answer and called on
the defence to enter their case. The case was then adjourned till Tuesday
for the defence to enter their case.

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