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. _________________________________________________________________ Watch high-quality video with fast playback at MSN Video. 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