Saine, I hope this helps to address some of the concers raised by you and
the original sender of this message. The Coroner's job in this matter is
quite simple. His primary task is to determine the cause of the death of
those who died in this unfortunate incident. His charging powers are merely
ancillary (I don't mean to minimize these powers though). What I am trying
to say is that, even if he does not hand down indictments, that does not
render the perpetrators of these heinous crimes scot-free. The ultimate
decision of deciding whether to charge these criminals and the crimes to
prosecute them for, is within the purview of the attorney general and the
independent prosecutor he is going to appoint.
The Coroner's report should contain findings as to whether the deaths
resulted from gunshot wounds. Proverbial piece of cake. Surely, the
pathologist(s) that conducted the autopsies can tell the difference between
death resulting from gunshot wounds and death resulting from injuries
sustained from stone and stick throwing.
Ousman Jammeh can therefore call the pathologist(s) in order to establish
what type of instrument caused the death of those brave children. Upon
determining that the deaths were caused by bullet wounds, Ousman Jammeh
should then call ballistics experts to tell us what type of bullets were
used. The next step is to determine where the bullets came from. Ousman
Jammeh should call the person(s) in charge of distributing arms and
ammunitions to tell us what barracks/camp/police station the ammunitions
identified by the ballistics expert came from. This testimony can be done
without compromising 'national security' secrets. Once the locations of the
ammunitions that were used in this incident are identified, the task of
identifying those who were in possession of those bullets on that fateful
day would begin.
This brings us to the charging powers of the Coroner. The only question
Ousman Jammeh has to ask himself is …. Who should stand trial to answer for
the murder of our children in broad daylight? As you can see, this is a very
low threshold. At this stage, we are not determining guilt or innocence. So
we are not talking about proof beyond a reasonable doubt as to who committed
these atrocities. We are only talking about who should appear before a court
of law to defend himself or herself in the face of evidence saying that he
or she committed murder. I realize that this is a serious affair and I do
not mean to suggest that charging someone with the murder of 15 or more
children should be taken lightly. All am saying is that there is a big
difference between saying that someone should stand trial for a crime and
saying that someone is guilty of a crime. Needless to say, the former does
not require an elaborate inquiry.
What Ousman Jammeh is being asked to do is what is done by grand juries in
The United States everyday. Those of us who are junkies of courtroom dramas
on TV would be familiar with the American slang that 'a grand jury can even
indict a ham sandwich'. Simply put, deciding whether to indict someone for
the murder of our children on April 10 is not rocket science.
The real work begins when and if an INDEPENDENT prosecutor is appointed.
That prosecutor can conduct further investigations and beef up charges to
include conspiracy charges and other inchoate offences. These are the
charges that should lead us to the ultimate culprits. As I mentioned in an
earlier piece I wrote to the L, I am not that familiar with the Gambian
constitution to know whether Yaya and other members of the executive who
might be implicated in this are immune from prosecution while they are in
office. I defer to seasoned constitutional lawyers on this matter. Suffice
for me to say though, the independent prosecutor should still go ahead and
indict Yaya and others and have them come to court and hide behind the
constitution. One can strongly argue that even if they are immune from
prosecution for actions done in their official capacities, killing children
or ordering the killing of children cannot be within the 'official
capacities' of Yaya and his gang. I doubt though whether the judges in The
Gambia (who are mainly foreigners) have either the political will or the
integrity to accept this type of argument. But that's okay. What dragging
Yaya to court will achieve is, it will show everyone in The Gambia and
beyond what these people are capable of doing.
To wrap up, I think we should:
1. Ensure that Ousman Jammeh comes back with concrete and legitimate
findings regarding the cause of death.
2. Ensure that Ousman Jammeh charges the soldiers who shot those fatal
bullets.
3. Ensure that Ousman Jammeh hands over the findings in his report to the
independent prosecutor.
4. Ensure (most important of all) that an INDEPENDENT PROSECUTOR (of the
utmost integrity) is appointed to investigate and prosecute this case. If a
commission of inquiry is appointed, as suggested by some, we should make
sure that that the enabling laws setting up such a body would give the
commission punitive powers. However, I prefer the appointment of an
independent prosecutor to try this case before our regular courts.
>From: Abdoulaye Saine <[log in to unmask]>
>Reply-To: [log in to unmask]
>To: [log in to unmask]
>Subject: Re: Powers of the Coroner
>Date: Wed, 26 Apr 2000 13:19:53 -0400
>
>Mr. Halifa Sallah:
>
>Thanks for the fine posting on "Powers of the Coroner." I did like you
>to also discuss SECTION 11 of the Coroner's Act. Under POWER OF
>SUSPICION OF COMMISSION OF OFFENSE, reference is made to sec.11.
>Sect.9(2) clearly empowers the Coroner to issue "summons or warrant for
>his arrest(i.e., the known person who has committed an offense), or take
>such steps as may be necessary to secure his attendance to answer such
>charge."
>
>Contrary to the public statements made by the recently-appointed
>Coroner, his powers go beyond establishing cause(s)of death.
>
>A possible interpretation of this section and other relevant sections of
>the Act is that, if the facts could be established before, during or
>(even) after the end of the inquest as to who gave the ORDER to "open
>fire" on the demonstrators, that person or persons could be brought
>before the coroner "to answer such charge."
>
>Coroner Yahya Jammeh has already laid the ground work for a total
>white-wash which many people in Gambia saw coming(see "Hamat Bah Takes
>Jammeh To Task" THE POINT, TUESDAY 25 APRIL).
>
>Sources tell me from Banjul, that people are not interested in a
>Coroner's Inquest, because they already know that these kids, and Omar
>Barrow were gunned down by the security forces. This is also Hamat Bah's
>implication in his POINT article. What people want to know in earnest
>is when the Commission of Inquiry will be established.
>
>Your comments are welcome and appreciated.
>
>
>Additionally, I urge all to write to Ambassador Akrouf, UNDP REP. in
>Gambia,([log in to unmask]) and send the petitions that would then
>be hand delivered to Secretary-General Annan.
>
>Abdoulaye
>No justice, no peace!
>Jammeh Must Go!
>foroyaa wrote:
> >
> > Post Mortem is crucial in determining the cause of death in an inquiry.
> > Hence, section 4 (1) of the Coroner's Act empowers the Coroner to order
>the
> > post mortem examination of the deceased. It states:
> >
> > "Whenever an inquiry into the cause of death of any person is required
>to be
> > held under the provisions of this Act, a Coroner may, subject to any
>rule
> > made under this Act, direct a medical officer or other duly qualified
> > medical practitioners to hold a post mortem examination of the deceased
> > person."
> >
> > The Coroner also has power to suspend burial to enable the 'post mortem
> > examination to be done. Hence, section 4 (2) states:
> >
> > "A Coroner may prohibit the burial of any dead body within the
>territorial
> > limits of his jurisdiction until an inquiry under this Act shall have
>been
> > held."
> >
> > Even after burial, if necessary, the Coroner may order the examination
>of
> > the dead body as states in subsection (3) "Wherever a Coroner deems it
> > expedient in order to discover the cause of death or make an examination
>of
> > the dead body of any person who has already been interred, he may order
>such
> > body to be exhumed and examined."
> >
> > POWERS WHEN DEATH OCCURS IN CUSTODY
> >
> > According to section 6, subsection (2), when any person dies while in
>the
> > custody of the police or of a prison officer or in prison or when
>detained
> > in any place under the provisions of the Lunatics Detention Act or of
>the
> > Criminal Procedure Code, "a Coroner may, subject to the provisions of
> > section 11 of this Act, hold an inquiry, either instead of or in
>addition to
> > the investigation held by the police officer."
> >
> > POWER ON SUSPICION OF COMMISSION OF OFFENCE
> >
> > According to section 9 (2) of the Act, "Subject to the provisions of
>section
> > 11 of this Act, if before or at the termination of any such inquiry a
> > Coroner is of the opinion that the commission of an offence by some
>known
> > person has been disclosed, he shall issue a summons or warrant for his
> > arrest, or take such other steps as may be necessary to secure his
> > attendance to answer such charge."
> >
> > What happens when such accused person appears before a Coroner? The
> > subsection goes on to say "On the attendance of the said person, the
>Coroner
> > shall commence the inquiry de novo and shall proceed in the manner
>provided
> > in Part VI of the Criminal Procedure Code for holding a preliminary
>inquiry
> > into an offence."
> >
> > In fact, subsection (1) of section 9 of the Act states: "Notwithstanding
>the
> > repeal of Part VI and section 236 of the Criminal Procedure Code and
>save as
> > otherwise provided in this Act, a Coroner holding an inquiry under this
>Act
> > shall exercise all powers conferred by that Code upon a Magistrate
>holding a
> > preliminary inquiry into an offence, as if those provisions had not been
> > repealed."
> >
> > Furthermore, it is stipulated in section 12 of the Act that ".... if any
> > person is brought before a Coroner charged with murder, manslaughter, or
> > infanticide, such Coroner shall have the like powers as to committing
>that
> > person for trial before the Supreme Court as might be exercised under
>the
> > Criminal Procedure Code by a Magistrate if such person were charged
>before a
> > Magistrate."
> >
> > The question now arises: What powers does this part confer on the
>Coroner?
> >
> > DISCHARGE OF ACCUSED PERSON
> >
> > Section 184 of the Criminal Procedure Code states: "If the court
>considers
> > that the evidence against the accused person is not sufficient to put
>him on
> > his trial, the court shall forthwith order him to be discharged as to
>the
> > particular charge under inquiry; but such charge shall not be a bar to
>any
> > subsequent charge in respect of the same facts:
> >
> > "Provided always that nothing contained in this section shall prevent
>the
> > court from either forthwith, or after such adjournment of the inquiry as
>may
> > seem expedient in the interests of justice, proceeding to investigate
>any
> > other charge upon which the accused person may have been summoned or
> > otherwise brought before it, or which, in the course of the charge in
> > respect of which that accused person has been discharged as aforesaid,
>it
> > may appear that the accused person has committed."
> >
> > COMMITMENT FOR TRIAL
> >
> > The Coroner may on the other hand think there is enough evidence to
>commit
> > the accused for trial. Hence, section 185 of the Code states: "If the
>court
> > considers the evidence sufficient to put the accused person on his
>trial,
> > the court shall commit him for trial to the Supreme Court and shall,
>until
> > the trial, either admit him to bail or send him to prison for
>safe-keeping.
> > The warrant of such first-named court shall be sufficient authority to
>the
> > officer in charge of any prison appointed for the custody of prisons
> > committed for trial, although out of the jurisdiction of such court."
> >
> > The Coroner may be of the opinion that an offence has been committed by
>an
> > unknown person. Hence section 9 (3) of the Coroner's Act states: "If at
>the
> > termination of the inquiry the Coroner is of opinion that an offence has
> > been committed by some person or persons unknown, he shall record his
> > opinion accordingly."
> >
> > What if the Coroner is of the opinion has been committed? Section 9 (4)
> > states "If at the termination of the inquiry the Coroner is of opinion
>that
> > no offence has been committed, he shall record his opinion accordingly."
> >
> >
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> >
> >
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