Justice Department Castigates National Intelligence Agency


The Independent (Banjul)

December 3, 2001
Posted to the web December 3, 2001

P. K. Jarju & Omar Bah
Banjul, the Gambia

The National Intelligence Agency have come under heavy judicial rebuke for
failing to comply with an order to produce Alhagie Mbye an Independent
reporter detained by them for more than one week.

Justice A. O. Belgore of the Banjul High Court strongly castigated
personnel of the NIA for not holding the decision of the court, which held
that it was unconstitutional to detain the journalist for days exceeding
the 72-hour limit spelt out by the Gambian constitution.

Justice Belgore's curt remarks followed State Counsel Enoma Osaikhuwu's
argument that he could not make any physical or telephone contact with NIA
personnel that may have led to ushering Mr. Mbye who alleged he was
tortured by the NIA to court as ordered by Belgore. Belgore asked him
whether NIA personnel were not human beings who could be reached when
needed. He added that he could not see any reason why the NIA should not
obey the law, adding sarcastically "in fact they are not human beings."

Delivering his ruling Belgore stated that Mbye's eight days of detention at
the NIA headquarters was unconstitutional because it went beyond the 72-
hour limit stipulated in the 1997 Gambian constitution. He said it the
reporter's detention was illegal since no affidavit was filed before him by
the Attorney General justifying or explaining the reason or reasons behind
the NIA action against the journalist who was picked up from his home on
Wednesday November 26. "As a result of this", he said, "I therefore order
his unconditional release from detention".

In their submissions earlier Mbye's counsel, Amie Bensouda had applied for
his client's unconditional release from detention on the grounds that he
was not charged with any offence, neither has the state given any reason to
justify his detention, which she said was a clear violation of his rights.
She argued that the constitution guarantees the liberty of the subject and
prohibits his detention for over 72 hours without charge and that any
further arrest would amount to a further violation of his constitutional
rights.

Responding, State Counsel Osaikhuwu apologized for the state's failure to
produce Mr. Mbye before the court at the requested time, but however
objected to Mrs. Bensouda's submission for Mbye's unconditional release,
for as he put it, his unconditional release would preempt further
investigation by NIA. Justice Belgore overruled his argument on the grounds
that no affidavit was put before him by the state explaining his arrest. He
told Osaikhuwu that if he wanted to give any evidence he should go to the
witness box and testify.

The miscellaneous application requesting a High Court order of Habeas
Corpus for the state to produce Alhaji Mbye in court was granted on
Tuesday, 27 November. The court ordered that the NIA should produce the
body of Alhaji Mbye in court on Thursday 29.

Everybody was gripped by shock when on the day in question; the NIA defied
the court order and decided to rather dump him at the outskirts of their
headquarters.

Lawyer Amie Bensouda submitted that although no time was indicated in the
order, the Attorney General is well aware that the court sits at 9.00
am "There is no doubt that the failure to produce Alhaji Mbye before the
court is in contempt of the court", she charged. The matter was stood down
until 12 noon that day following the request of the state counsel.

Upon the resumption of the court proceedings state counsel Enoma revealed
that Mr. Mbye had been released." I am dismayed that the applicant is not
in court this morning". He said he discussed with principal state counsel
Wowo with the intention of liaising with the respondent so as to secure the
body of Mr. Mbye. "He came back to give me word that the applicant has been
released. I went to the NIA headquarters but they told me that they were
having briefing".

Mrs. Bensouda had continued to argue that Alhaji Mbye had not been
released. She said he was neither at his home nor at his work place, and
that somebody else was receiving his mobile telephone. She further
submitted that even if the NIA had released Mr. Mbye, it would be in
apparent contempt of the court. She therefore urged the court to invite the
Director General of the NIA Kebba Ceesay to explain why he should not be
tried for contempt of court.

In his ruling, Justice Belgore condemned the respondent's disobedience of
the court with impunity. He then gave another order for the Attorney
General to produce the body of Alhajie Mbye the following day Friday by
10.00 am.

The Attorney General again defied the court order by failing to produce Mr.
Mbye in court. He decried the situation as very unfortunate in a democratic
state. "The Attorney General should respect the law as the chief law
officer of the state", he stressed.

Mbye's counsel, Amie Bensouda then confirmed his release and explained how
he was picked up by a pedestrian and taken to a clinic following his
release. "I leave it entirely in the hands of the court. The order of the
court was that he should be brought here by 10.00 am", she maintained.

The state again requested for an hour to produce Alhajie Mbye, which was
granted. This time, the state lawyer Enoma finally brought him to
court.Lawyer Bensouda however revealed that Mbye was detained for eight
days before his release and then subsequently detained at 8.30 on Friday.

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