Darboe & Co. Judgement
Travesty (Part 1)
By Lamin J Darboe
It discussed no profound questions, enunciated no sublime principles. For a matter so central to fundamental questions around the public life of a country, a case so factually embedded in the crucial Chapter IV rights guaranteed by the 1997 Constitution of the Republic of The Gambia (the Constitution), the Judgment of Hon. Justice Eunice Oshim Dada (Justice Dada) in The State v Ousainou Darboe & 19 Others, Suit No: HC/179/16/CR/060/AO (Ousainou & Others), can only be described as an utter travesty in its shocking and glaring injustice.
That a 36-page Judgment on entrenched rights made not even a passing reference to the Constitution renders it intellectually and morally valueless, scandalous even (the italicised material below, some 2000 words, is a direct extract from the judgment of Justice Dada. I recommend it highly).
To constitutional observers and other watchers of the public space - professional and lay - the Judgment is impossible to understand, and for good reason it was roundly rejected as a travesty. This is not to say it was unexpected! Indeed, viewed within the overall tapestry of Gambian public life, of the intricate command architecture of the Judiciary in general, and the courts in particular, it was the only conceivable outcome from the compelling perspective of self-preservation. If only in this regard, the condemnation, understandable as it may be, must be restrained, may not be directed at a particular judicial officer, or even the Judiciary, for that matter. It is not enough to point to the judicial oath as conclusive on the contention that Justice Dada bears sole responsibility.
The glaring failure of justice in this and other political, and, or, politicised cases, is a national responsibility, and denotes a systemic perversity that must be comprehensively tackled in any new dispensation. Undoubtedly, the Constitution permits the legal mismanagement of Gambian public life. With its hollow protections, it would still be an instrument of violence, if only potentially, even in the most benign of hands. It has no place in a proper democracy!
Under current Gambian public life, it is too simplistic, in heavily political cases, to assign exclusive responsibility to the judicial officer at the centre of an irresponsible decision, whether that decision is interim or final in nature. This contention makes no attempt to remove all personal responsibility for a perverse decision as in Ousainou & Others.
What it highlights is the live issue of whether systemic fairness is a realistic expectation when a judicial officer is made to constantly self-remind about the real threat of instant dismissal should a decision adverse to the interest of the ultimate power be taken in a particular case.
Viewed as a system, it is common knowledge that baseless arrests and detentions are routine in The Gambia, that severe, and sometimes terminal, extra-judicial punishment is meted out in custody, and that unwarranted prosecutions are normal. In similar vein, it is common knowledge that incomprehensible legislation is routinely enacted. For practical purposes, such executive and legislative lawlessness - vandalism really - effectively inhabit the same territory as Justice Dada’s judgment. Its underlying general stream states that with national power so totally centralised, and capable of unlawful summary and retributive deployment, the instinctive inclination of decision makers of all stripes across the public sphere is heavily tilted in the direction of self-preservation. I salute those judicial officers who act their conscience under difficult political circumstances as there is no question that the stakes notwithstanding, great decisions worthy of celebration emanate from members of the bench from time to time!
As an institution, the judiciary - and by extension the courts - is far from independent even in that sacrosanct domain of operational matters. To be efficacious, the rule of law must be systemic, not individual. In a largely arbitrary public terrain, judicial officers must be shielded from even the threat of Executive reprisals. It is not a compelling contention to expect that judicial officers must consistently remain the foremost exemplars of rectitude as if they live outside the ambit of human frailties, failings and concerns. This feeds into the larger query of what constitutes heroism as in public sacrifice.
Witness the case of Ousainou & Others, the genesis of that affair, and its scandalous judicial resolution. That Ousainou and his UDP leadership can, with impunity, and without colour of law, be arrested, manhandled, detained, and wrongfully convicted for peacefully protesting the daylight State-admitted murder of Solo Sandeng, and the systematic torture of his colleagues, who themselves were engaged in legally protected conduct in their calls for requisite electoral reforms speaks volumes about Gambia’s democracy and the rule of law.
Can elections, without electoral reforms, be free and fair in a climate like this?
There is no question that when tragedy strikes, the brave and consistent adherent of the rule of law would be left to his own devices, to pick up the pieces, so to say, and negotiate his way around the powerful landmines of Gambian public life. Major assaults on what remain of the very fragile systemic integrity of Gambian polity passed into the annals of our public intercourse as a matter of course. Our polity clearly incarnates the mind-set of Justice Dada.
Nevertheless, the public reaction to the verdict in Ousainou & Others as an utter travesty is completely accurate. This is therefore a clarifying exercise, an examination as to whether the laws relied on by the State in instituting the prosecution, and by Justice Dada in convicting and sentencing, are validly available to them in light of the Constitution.
The hierarchy of law cannot be more authoritatively articulated than at section 4 of the Constitution. In categorically clear terms, that section states that the “Constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.
Having set the comparative basis of legal validity at section 4, what competing provisions of law – constitutionally speaking – must be interrogated in ascertaining the lawfulness or otherwise of the prosecution and conviction in the now infamous travesty that is Ousainou & Others.
At section 25(1), the Constitution, in imperative terms, states: “Every person shall have the right to:- (a) freedom of speech and expression, which shall include freedom of the press and other media; (b) freedom of thought, conscience and belief, …; … (d) freedom to assemble and demonstrate peaceably and without arms; (e) freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions; (f) freedom to petition the Executive for redress of grievances and to resort to the Courts for the protection of … rights”.
The Charges and findings of Justice Dada in her own words (italicised)
Against section 25(1) of the Constitution, Ousianou & Others were charged and convicted:
“In Count 1 the accused are charged with Unlawful Assembly contrary to section 69 and punishable under section 70 of the Criminal code. Laws of the Gambia. The section provides inter alia as follows, “When three or more persons assembled with intent to commit an offence, or being assembled with intent to carry out a common purpose, conducts themselves in a manner that causes persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, they are an unlawful assembly …
It is to be noted that from the evidence before the court from the perspective of the accused persons themselves, they were more than 3 persons and they assembled to carry out a protest or demonstration or procession without permit. There was therefore fear within the neighbourhood.
On count 2 the accused are charged for riot contrary to section 69 and punishable under section 71 of the Criminal Code. Dictionary.Com define riot as “A noisy, violent public disorder caused by a group or crowd of persons, as by a crowd protesting against another group, a Government Policy etc.” By this simple definition of riot, it could be seen clearly that the accused who went out with a banner with the inscription “Release Solo Sandeng and Others” and chanting “Release our Men” were obviously noisy and the action was directed at the Government. Their action was therefore riotous.
On count 3 the accused are charged with Incitement of violence contrary to section 59(B) of the Criminal code, Laws of the Gambia. The section provides as follows, “A person, who without lawful excuse prints, publishes or to any assembly makes any statement indicating or implying that it would be incumbent or desirable-
To do any ac calculated to bring death or physical injury to a person or to any class or community of persons; or
To do any acts calculated to lead to destruction or damage to any property.
A close look at the wordings of this section and juxtaposing same with the evidence adduced by the Prosecution and the testimony of the accused as contained in their Cautionary statements does not reveal a case of printing or publication leading to any act calculated to either bring death or physical injury or even calculated to lead to destruction or damage to any property. What is established before the court is that the accused went out on the Protest to demand the release of one of their party members. No evidence was led to establish the Incitement of violence as envisaged in this section. The stones said to have been thrown on the Police and the damage to the Shields was the consequence of the squabbles that arose between the Police and the accused in the cause of the arrest. It is therefore my considered view that the Prosecution failed to prove to this count beyond every reasonable doubt that the accused incited Violence in line with count 3. This count fails and is hereby struck out.
In Count 4, the accused are charged with riotously interfering with vehicles contrary to section 78 of the Criminal Code. This section provides that “All persons commit a misdemeanour who, being riotously assembled, unlawfully and with force prevent, hinder or obstruct the loading or unloading of a vehicle …”. The evidence on record particularly the evidence of PW1reveal that the activities of the accused caused obstruction of vehicles and there was heavy traffic jam. It is to be noted that generally, a procession of any kind, on the public road usually and naturally affect the free flow of traffic. To ease traffic flow, such processions are usually controlled by Law Enforcement agents to keep a free lane for traffic. It is to be noted again that this activity took place on Saturday at the peak of the afternoon where vehicular movement was at its peak. In the absence of any state apparatus to have deliberately guided the procession I find it convincing and believable that there was riotous interference with vehicles.
On Count 5 the accused are charged with holding a procession without permit contrary to section 5(5) of the Public Order Act, Laws of the Gambia 2009. The section provides as follows;
“A public procession which-
Takes place without a licence under subsection (2) of this section or
Neglects to obey any order given under subsection (4) of this section is deemed to be an unlawful assembly, and all persons taking part in the procession, and in the case of the public procession for which no licence has been issued, all persons taking part in the convening, collecting or directing of the procession commit a cognizable offence and on summary conviction before a magistrate, are liable to imprisonment for a term of three years.”
Subsection 2 of section 5 relates to mandatory application for a licence to the inspector General of Police or the Governor of a Region by a person who is desirous of forming a public procession. While subsection 4 thereof says that a Magistrate or Police Officer from the rank of sub Inspector and above may stop any public procession for which a Licence has not been issued or which violates any of the conditions of a licence and may order it to disperse. The above provisions of the law as it stands currently within the Gambia is very clear and unambiguous. The 1st accused in his Cautionary statement before this court in Exhibit 9(a) stated in part that “When that failed we decided to go on a peaceful demonstration/procession. We did not apply for a permit because it is our constitutional right to hold a peaceful demonstration. And it was peaceful”. In exhibit 23 which is the Point News Paper publication of 18th April, 2016 the 1st accused was reported as saying; “We members of the UDP leadership will make our demand for the immediate release of all detainees, political reforms and freedom of speech … I am ready to die today if Solo and others could sacrifice for the Nation for political reform, why not us? We will go out without police permit to exercise our rights”. This evidence and the evidence of PW1 who stated before he read out the proclamation words to the accused on the day of the incidence he asked if they had permit to carry out the procession and no permit was shown to the police, establish the fact that the accused clearly and deliberately violated the provisions of the Public Order act. The count was accordingly proved beyond reasonable doubt.
On Count 6 the accused are charged with disobeying an order to disperse from an unlawful procession pursuant to section 5(5) of the Public Order Act. The facts as established in count 5 above that the accused went on the protest match without a permit and were consequently arrested show clearly that the disobeyed the order to disperse which led t their arrest. Perhaps if the accused had dispersed at the time the proclamation wordings were read to them no arrest would have been made and no charge would have been preferred against them. This count is accordingly established.
On Count 7 the accused are charged with Conspiracy, contrary to section 369 of the Criminal Code. The section provides in part as follows; “A person who conspires with another person to commit a misdemeanour, or to do any act … which is an offence under the laws in force … commits a misdemeanour”. It is trite that for the offence of conspiracy to be established there must be an agreement between two or more persons as a person cannot be said to conspire with himself. The evidence before this court from the Cautionary statements of the accused persons themselves reveal that they all gathered in the residence of the 1st accused where they took a decision to go on the Protest match knowing fully well that they were required to obtain a permit and they had non. All the offences the accused are charged with are offences which can be classified as Misdemeanours as non is a felony. On the strength of the above, it is my considered view that the 7th Count on conspiracy has been sufficiently proved against the accused.
The final issue to determine is whether the charge has been established against all 20 accused persons. The evidence reveal that all the accused persons before this court were at one point or the other present in the residence of the 1st accused. However, the evidence of two accused persons tend to show that they were persons who were caught in the middle of the incidence but in fact had no link with the procession. The evidence of the 6th accused Yaya Bah and the 15th accused Fanta Darboe are to the effect that they were nither part of the Press Conference nor the procession or UDP members. Yaya bah stated that he is a driver to Momodou sanneh whom he drove to the residence of the 1st accused and knew nothing about what was going on. That he was by the car waiting for his Boss when he was arrested. The statement of Fanta Darboe is that he visited the 1st accused who is his uncle and when commotion started someone pointed at him as one of them. While the statement of Yaya Bah could be belived and the fact of his refusal to exonerate himself in court by defending the charge could be imputed to him as a person with limited knowledge, the evidence of the 15th accused Fanta Darboe, a nurse residing in the USA is not persuasive enough within the context of his refusal to defend himself as not being a party to the activities that gave rise to the charge. His presumed level of exposure ought to bare his mind to the implications of refusal to defend the charge. This court therefore refuse to belief that piece of evidence. I therefore belief the evidence of Yaya Bah that he was not part of the Procession or Protest or demonstration. This court find no justification to hold him answerable to the charge. Consequently, the name of the 6th accused person herein, Yaya Bah is hereby struck out.
It is my considered view that the prosecution has successfully established its case against 19 of the 20 accused persons.
Accordingly, all the 19 accused persons herein listed as Ousaino Darboe, Kemeseng Jammeh, Femi peters, Lamin Dibba, Lamin Jatta, Babucarr Camara, Fakebba Ceesay, Ismaila Ceesay, Momdou Fatty, dodou Ceesay, Samba kinteh, Mamudu manneh, Nfamara Kuyateh, Fanta Darboe, Lamin Njie, Juguna Suso, Momodou L. K. Sanneh, Yaya Jammeh and Masaneh Lalo Jawla are found guilty and convicted of Unlawful assembly, Riot, Riotously interfering with vehicles, Holding procession without permit, Disobeying order to disperse, and Conspiracy.”
And so it ended with a completely indefensible outcome.
Except for counts 5 & 6 which are rooted in the Public Order Act 1961 (POA 1961), as amended, in 2005, and 2009, all other counts are grounded in Criminal Code laws from the colonial era. Without exception all laws invoked as justification for commencing the prosecutions must comply with the test articulated by the Constitution at section 4.
Admittedly, there is a caveat at section 25(4) of the Constitution that the freedoms referred to in subsections (1) “… shall be exercised subject to the law of The Gambia in so far as that law imposes reasonable restriction on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court”.
Notwithstanding the claw back provision, there is no possibility of rooting a section 25(4) intervention and in the process supplanting the supremacy clause of the Constitution in ordinary and inferior public order laws, and in ordinary and normal times. The “reasonableness” test needlessly included in the Constitutional text is a judicial tool, not an Executive sledgehammer!
More poignantly, the fundamental freedoms are entrenched, and are therefore derogable only in an emergency, and expressly via an Act of the National Assembly (NA) (see section 35 (1) of the Constitution). If such a power is invoked by the NA, section 35 (2) authorises a reasonable, if temporary, suspension of Chapter IV rights: Nothing contained in or done under the authority of such an Act shall be held to be inconsistent with or in contravention of sections 19, 23, 24 (other than subsections (5) to (8) thereof) or 25 of the Constitution to the extent that it is reasonably justifiable in the circumstances arising or existing during a period of public emergency for the purpose of dealing with the situation
That there was no violence, and no remotely conceivable threat to national security is a matter of record. As earlier stated, 25 (1) of the Constitution expressly spelt out the fundamental freedoms. Pertinently for present purposes, “Every person shall have the right to:- … (d) freedom to assemble and demonstrate peaceably and without arms …” In any contest between 25 (1) (d) of the Constitution, and every single one of the laws relied on by the State in initiating these unjustified prosecutions, and Justice Dada in her indefensible convictions, the former wins conclusively. This is the clear command of the Constitution! In categoric terms, it self-describes as “the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.
Along the same lines, Article 11 of the African Charter on Human and Peoples Rights states:- “Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others”.
At Article 20(1) of the Universal Declaration of Human Rights, an international instrument to which Gambia is a signatory, it is stipulated that “Everyone has the right to freedom of peaceful assembly and association”.
However it came to be in the Constitution, Chapter IV categorically applies the brakes on vandalism by the State in the public space. Whether the Constitution’s political midwives intended to abide by its provisions, there is no question The Gambia is stuck with it. We should therefore look no further than section 17 of the Constitution placing the Executive, and the courts, among others, under a positive obligation to protect the Fundamental Rights and Freedoms of citizens and residents of The Gambia. In specific and express terms, it states:-
The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by all organs of the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with this Constitution.
Every person in The Gambia, whatever his or her race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or status, shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter, but subject to respect for the rights and freedoms of others and for the public interest.
I know of no Gambian who espouses absolutism in the realm of Fundamental Rights and Freedoms. Like the Constitution, all the international and domestic instruments discussed in the preceding paragraphs recognise that in appropriate circumstances, the operation of the fundamental freedoms may be curtailed. Crucially, section 25 (4) explicitly states that “The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court”.
Any suggestion that the law invoked against Ousainou & Others can control a Constitutional provision in ordinary and normal times would be laughable if only for the clear absence of any lawful mechanism for such inferior statutes to supplant the supremacy clause.
To further public conversation and awareness on the underlying issues, there is compelling need to interrogate the laws that purportedly authorise the Executive of an independent democratic republic to relentlessly invoke colonial impositions against its fellow citizens. Under other circumstances, a different era perhaps, such spectacular enforcement of colonial legislation would have utterly pleased Her Britannic Majesty’s Governor of any colonial territory. I hasten to add that the United Kingdom of Great Britain and Northern Ireland has so thoroughly modernised its public order legislation that only students of political history, and related disciplines, can recognise the modern state of the law when juxtaposed against what obtained in colonial territories in the turbulent 1960s, and regrettably, even today in sovereign states like The Gambia.
The Gambia’s POA 1961 is understandable only when perused in the context of the milieu out of which it originated. The 1960s heralded the nadir of the colonial project, the high water mark of the glamour for self-determination, a period when new realities were shaping the dominant power relations of international public life. By the end of that decade, the era of the traditional colonial empire would be virtually over, and the preeminent centres of global political power and influence would be firmly located in Washington and Moscow.
This change in fortunes did not make the divorce any easier for the colonial countries, the dominant players among which included Great Britain. Many in the colonies, among them liberation leaders, and ordinary citizens, convinced about the legal and moral righteousness of their cause, made the supreme sacrifice for the independence project. The Supreme Sacrifice!!! Why then, and after more than five decades of nationhood, are we still tormented, in our new dispensations as sovereigns states, by the ‘public order’ laws of colonial authority, and tragically, at the behest of our fellow citizens. Nothing can be more perverse!
Although the First Republican Government did not touch the POA 1961, the current Government dramatically spiked its punitive provisions in 2009. As in colonial times, the only discernible reason for the amendments was to maintain the already very tight grip of the incumbent government on virtually all avenues of legitimate public conversation on issues of concern to all members of our polity.
I marvel at the short-termism of Gambia public life from the very onset of the sovereign era. In Julius Caesar, Britain’s preeminent contribution to the aesthetics of the English word, to the dissemination of the thought and civilisation of the realm, spoke thus of the tragic hero: “But yesterday the word of Caesar might have stood against the world: now lies he there, and none so poor to do him reverence”. How this exquisite counsel for restraint in the affairs of transient humanity was lost on the custodians of public power in countries like The Gambia is a matter of great puzzlement!
That human life is finite is not a contentious postulation. Death will come to every living being. And so it never ceases to amaze how a person, or persons, possessed of public power, either by force, or via communal consensus, can act as though they inhabit a firmament of their own, complete with eternal life and privileges. Why are the teachings of human transiency, ancient and modern, of no consequence in the hubristic and misguided calculations of lawless rulers! Or is it a case of either lifetime rule or destroying it all if a ruler must leave?
These musings are triggered by the extraordinary events in Gambian public space, by the brutality that is firmly fused into the fabric of our public intercourse, by the perversity that highlighted the worthlessness of the Constitution as demonstrated by the decision of Justice Dada to convict and sentence Ousainou & Others in their peaceful and public-spirited support for unlawfully murdered and detained UDP members. It was even more amazing considering there was no lawful excuse for the prosecutions, much less the convictions for engaging in legally protected conduct. Overall, the affair constitutes a threat to Gambia’s national security.
In part two, I propose to interrogate the only substantive evidence offered in the case, evidence from the 1st, 2nd, and 4th prosecution witnesses, and to deal with Justice Dada’s selective inclusion of evidence in her judgment, and whether she asked the proper questions, as well as applied the proper standards (especially in the case of Fanta Darboe) in resolving this manufactured dispute.
Of key significance in the context of the Constitutional requirement of judicial impartiality and a fair trial is her reference, at page 3 of the judgment of “a memo dated 26th May, 2016. The memo was from the Judicial Secretary of the Judiciary of the Gambia acting on the directives of the Hon. Chief Justice for this court to give accelerated hearing of this case to ease the difficulties experienced by commuters into Banjul as a result of this case. There was therefore a deliberate acceleration of trial to meet up with the above directive.”
Lamin J. Darbo