The words of the AG at a press conference last week revealed the real reason
why magistrate Borry Touray was fired. It was reported that the AG said,
among other things that:

"the Justice Service Commission has the powers to terminate the services of
incompetent civil servants. He availed on magistrates to be aware of the
powers conferred on them. He added that magistrates have jurisdiction to
remand murder suspects in custody."

In other words, magistrate Touray was fired because he applied the law and
refused to unlawfully jail Ousainou Darboe and 24 other people that have
been accused for the murder of one person. If this is not interference with
the independence of the judiciary, then we are in big trouble. Here we have
our own Attorney General (head of the judiciary because they recommend the
appointment of chief justices) admitting that the magistrate was sacked
because the government (executive) did not like the ruling of the
magistrate. Secka clearly stated that Touray was sacked because Touray did
not know that "magistrates have jurisdiction to remand murder suspects in
custody". Let us assume that Secka is right and that Touray misapplied the
law. Magistrates and judges in every jurisdiction give erroneous decisions
everyday. What law-abiding citizens and institutions do in such
circumstances, is to appeal the decisions of lower courts. People and
institutions that are aggrieved by the decisions of judges do not take the
law into their own hands. In the case of Borry Touray, the AG again showed
why he is a poor loser. When Touray would not succumb to their raw and
brutal political motives, they retaliated by sacking the poor magistrate.
The lawful thing the AG could have done, was to appeal the decision of the
magistrate to the High Court. How can the Judicial Service Commission
summarily dismiss Touray on the basis of this case alone? Ousainou Darboe
and his supporters were eventually freed by the higher court in Banjul. So,
right there, Touray has been vindicated. Perhaps there is a more sinister
angle to this. Touray was made a scapegoat in order to send a message to
other gullible magistrates and judges. Could Touray's sacking be linked to
the absurd ruling by Magistrate Haddy Roche when the latter decided to jail
Dumo and others against the expressed will of the High Court judge? Is the
intimidation of the judiciary at work here? Clearly, Haddy Roche could have
taken a hint from the AG, viz, any magistrate that does not know his/her
powers (as interpreted by Pap Cheyassin Secka) will be sacked. That is the
only explanation for the ridiculous ruling given by Haddy Roche in clear
contradiction to a High Court ruling. The revelations of the AG at the press
conference when looked at in light of what Haddy Roche did, clearly manifest
government (executive) tampering with the judiciary.
In previous postings, we have demonstrated how baseless magistrate Roche's
ruling was. The decision to continue the unlawful detention of the accused
persons was given after the prosecutor already told the magistrate that she
did not even have a prima facie case to charge anyone. This decision was
also given after the High Court took over the matter and eventually declared
the detention unlawful.
I noticed at the press conference the AG is still peddling the spurious
'public interest' argument (S. 17 Gambian Constitution) espoused by Wowo. It
would be interesting to learn what type of public interest is being served
by the unlawful detention (incommunicado) of innocent Gambian citizens. To
begin with, these charges are bogus and the mediocre talent at the AG
chambers would not last a single day at a trial before an impartial judge.
The police and the NIA are the most incompetent institutions in that
country. These people suck 'radio kang-kang' like leeches. I am sure they do
not have a single piece of substantive evidence against the accused persons.
They are only going by suspicions and rumors. When these people have their
fair day in court and facts begin to come out, I will come back and tell you
how weak the government's case is.
It is shameful for the AG to justify Dumo's unlawful detention
(incommunicado) by saying that he (Secka) was detained in 1981 and denied
advise of counsel. Pathetic. That coming from a lawyer is really sad.
Because the Jawara government had a state of emergency and did not respect
strict rule of law, it is therefore justified for this illegal government to
break the law willy-nilly? In 1981, Secka had the best Gambia could offer to
defend him against charges he denied at the time but now readily admits (to
the chagrin of his lawyers). Why is Secka denying the accused persons the
same representation he had in 1981? Secka was right in recognizing that
these people are accused of very serious crimes. But he reached a perverse
conclusion thereafter. He argued that the seriousness of the offenses
warranted the continued unlawful detention (incommunicado). This is absurd.
I put it to him that, because these charges involve life and death issues
for the accused persons, it is vital that they have legal counsel and have
contact with their families. What is the government afraid of? Well, if the
government does not want the accused persons to get legal advise from their
lawyers, at least the government should allow family members and human
rights activists to see the accused persons. That should dispel reports that
some of the accused persons have been tortured or summarily executed.
KB




>From: Amadu Kabir Njie <[log in to unmask]>
>Reply-To: The Gambia and related-issues mailing list
><[log in to unmask]>
>To: [log in to unmask]
>Subject: Fw: Justice Secretary Dispels Rumours Of Dumo Sarho,
>Others Summary Execution
>Date: Tue, 22 Aug 2000 12:26:09 CEST
>
>The Daily Observer Published Monday, 21rst August, 2000
>
>
>Justice Secretary Dispels Rumours Of Dumo Sarho, Others Summary Execution
>
>The secretary of state for Justice, Pap Cheyassin Secka, has strongly
>denied
>rumours that some of the coup suspects have been killed saying "all those
>arrested are alive. I know where they are detained. I have been there."
>
>The Justice secretary was speaking on Saturday during a press conference
>held at the department of state for Works, Communication and Information.
>Mr
>Secka's denial followed speculation in various quarters in the country
>about
>the fate of the detainees.
>
>Reacting to the question on the legality of the continued detention of
>Momodou Dumo Sarho and others, the Justice secretary said they were
>arrested
>in connection with an attempt to change the legally constituted government
>of The Gambia by "force of arms."
>
>According to the Justice secretary, the death of the head of state was
>contemplated in the process. "It should be noted that the right to be
>brought before a court after an arrest within 72 hours under section 19(3)
>of the constitution is subject to section 17(2) of the same constitution.
>
>This means that all the human rights provision in chapter IV of the
>constitution are 'subject to respect of rights and freedom of others and
>for
>the national interest," said Mr Secka adding "It means those who expect to
>enjoy the rights guaranteed in democracy must play by the democratic rules.
>No one expects government to treat any one bent on under-mining its very
>existence as if he only committed a minor traffic offence."
>
>According to Mr Secka, the government has the responsibility of respecting
>the rights of individuals especially those under arrest but that the
>responsibility must be exercised with due regards to the national interest.
>The justice secretary told journalists that Momodou Dumo Sarho and others
>would appear in court in due course and that the treason trial would be
>opened to the public.
>
>The Justice secretary also said it is due to the "the nature of the case"
>that families and lawyers have been denied access to the detainees. He said
>Momodou Dumo Saho and others have been charged with treason, "a very
>serious
>offence." Another reason the Attorney General gave for the denial was the
>disappearance of two of the coup suspects who are still at large. He added
>that the move was taken in the interest of national security.
>
>The Justice secretary who was a former treason convict in the ousted PPP
>regime, told journalists that he experienced the same treatment in
>August,1981. The Justice secretary said when he was arrested in the 1981
>abortive coup he was denied access to his lawyers for a while. Commenting
>on
>the recent Radio1 FM arson attack, the Justice secretary said the
>government
>unreservedly condemns such "illegal acts of vandalism, we express our
>sympathy and solidarity with the proprietor and staff of Radio 1 FM. He
>cautioned the general public to desist from speculation on the case and
>pass
>on whatever useful clues or information that may help the investigators.
>
>With regard to the long awaited coroner's report he said the coroner,
>Ousman
>Jammeh, submitted his report since May 2000. "The conclusion of the
>commission's hearing and the inevitable report to follow will give
>government the opportunity to consider both reports. Both reports and
>government's reaction will be made public in due course," he promised.
>
>When asked by our reporter how much money the Alimenta Company is claiming
>against The Gambia Government, he said "Alimenta is claiming US$32
>million."
>According to him, "the dispute which started in early 1999 when government
>took over the assets of the company has been taken to arbitration before
>the
>International Centre for the Settlement of Investment Disputes (ICSID) in
>Washington DC, but the venue of the arbitration is in London.'' He said
>"our
>aim is to effectively resolve this issue in the shortest possible time at
>minimal cost to government."
>
>Commenting on the controversial sacking of Magistrate Borry Touray, the
>Justice secretary said "the Justice Service Commission has the powers to
>terminate the services of incompetent civil servants. He availed on
>magistrates to be aware of the powers conferred on them. He added that
>magistrates have jurisdiction to remand murder suspects in custody. "We do
>not want to create a situation in the country wherein there is lawlessness
>in our country," he said.
>
>He added that the case in question touches on the independence of the
>judiciary hinting that both judges and magistrates should be independent.
>The Justice secretary warned that "interfering with the judiciary is a very
>serious offence." On Sergeant Paul Samba's detention, the Justice secretary
>denied knowledge of his arrest, saying "As for Paul Sambou, the only time I
>read about him was in the papers. I am not aware of the time he was
>arrested," said Mr Secka.
>
>Meanwhile the deputy IGP, Tamsir Jasseh has admitted that "the public
>confidence in the police has a lot left to be desired. We are aware of that
>situation. In our reorganisation efforts,we are putting that issue under
>consideration, to come up with ways in our relations to the public, in the
>manner in which we operate as a police organisation, to see what we can do
>to improve the image of the police." He said the police will operate out of
>politics. "The police will operate as a police force for the Gambian people
>not a police force for one party against another party," said DIG Jasseh.
>He
>appealed to the public to support the police.
>
>The chairman of the government's spokesperson committee Sarjo Jallow,
>called
>for peace and stability to prevail in the country. Lamin Jatta, Alieu
>Badara
>Ceesay and Ebrima Colley contributed to this story.
>
>
>________________________________________________________________________
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