The only acceptable outcome: acquittal of the Caliph General and the Alkalo
By Lamin J Darbo
A traumatic ten months later, the end of a journey that should never have commenced. But having started, it should not have lasted even a month. And how admirably His Worship, Magistrate Ebrima Jaiteh (His Worship Jaiteh) ended the shame that engulfed the Brikama Magistrates’ Court in the case of Inspector General of Police v Caliph General of Darsilami Sangajor, Sheikh Muhideen Hydara, and Buyeh Touray!
Congratulations are in order for the courage and technical competence demonstrated by His Worship Jaiteh in acquitting the accused persons of baseless criminal charges. In a courtroom packed to capacity, he delivered a marathon judgment lasting two hours.
That a case so simple, legally speaking, was presided over by four different magistrates’ was itself a matter of great concern, even allowing for the needless complications built into it, and the unstated but clearly explosive ‘political’ dimensions it naturally assumed over its lifetime. I hasten to add that for all its unacceptable longevity, the substantive legal questions were tackled by two magistrates, principally, and regrettably, by Magistrate Omar Cham who should have terminated the case at the closure of the prosecution case. His glaring failure was admirably and profoundly compensated for by His Worship Jaiteh’s brilliant and public display of the courage requisite in doing the right thing in politicized cases.
What alleged offences necessitated such ordeal for the accused persons who should not have seen the inside of a police station much less appear in a court of law on criminal allegations?
According to the prosecution, the Caliph General, Sheikh Muhideen Hydara (the Caliph General) and Buyeh Touray (the Alkalo) were dragged before the court on a two-count charge alleging, at count one, “conspiracy to commit felony”, contrary to section 368 of the Criminal Code, Cap 10:01, Vol. 3, Laws of The Gambia, 2009. The particulars of offence alleged that the Caliph General, and the Alkalo, on 29 July 2014, between 10am and 11am at Darsilameh Sangajor, Foni Kansala District, conspired to commit an offence.
On count two, the allegation was “disobedience of lawful orders”, contrary to Section 116 of the Criminal Code, Cap 10:01, Vol. 3, Laws of The Gambia, 2009. The particulars of offence alleged that the accused persons jointly disobeyed a purported “lawful order” of the President as announced on Gambia Radio and Television Services by performing Eid el Fitr prayers on 29 July instead of 28 July, 2014.
After four nights in unlawful police custody at Bwiam, Sibanorr, and Yundum, the accused persons, well known personalities in their community, and environs, were granted police bail in the sum of D100,000 each. They were then transported to and presented before Abdoulie Fatty, then well connected Imam of State House Mosque, and heavyweight fixer, at the premises of the Supreme Islamic Council, who informed them that he ordered their arrest and not the President. That they were arrested at all was in itself a matter of great puzzlement! On arraignment before Principal Magistrate Dayoh M. Small Dago, their bail amounts were pegged at D50,000 each.
By any yardstick, it was extraordinary that these allegations passed pre-arrest and pre-charge scrutiny to actually make the substantive trial docket. Except for the court bail figure, the scandal was thus far contained in the Executive domain as it was the police acting in such an unlawful manner, apparently in compliance with “orders from above”. For non-crimes like these, and considering the status of those involved, bail must be granted as a matter of course, and on the personal recognisance of the accused. This is the dictate of the Constitution, and the only respectable course of action open to a judicial officer operating in a free and independent judiciary. In the particular circumstances of this case, imposing any monetary figure on accused persons so situated, amounts to an abuse of discretion, and granting that he revised the bail figures downwards, Magistrate Dayoh M. Small Dago was nevertheless ill-advised to maintain a monetary bail condition. The whole purpose of bail is to “ensure” that an accused person “appears at a later date for trial or proceedings preliminary to trial” (section 19(5) of the Constitution). There was no suggestion whatsoever that these accused persons were about to skip the jurisdiction.
In a technically sound judgment, His Worship Jaiteh stated the well known legal principle that the prosecution bears the “unshifting” burden of proving all the elements of a criminal allegation. On count one, he stated that a conspiracy denotes an “agreement between two or more people to do an unlawful act by unlawful means”, reiterating that “agreement is a basic element of conspiracy”. On the evidence as presented by its three witnesses, he described the prosecution as having failed “woefully to prove the actus reus of conspiracy”, and the resulting doubts in his mind must therefore be resolved in “favour of the accused”.
On count two, His Worship Jaiteh relied on the issues as framed by Antouman Gaye, Senior Counsel for the accused by wondering aloud about “the lawful orders”, and the evidence that the purported “orders” and announcement about the Eid el Fitr prayers indeed emanated from the president. What was instead disclosed in the evidentiary process was that the purported Presidential “order” in fact originated with the Supreme Islamic Council, an entity with no authority to make laws, or order the arrest of anyone in The Gambia. As narrated by His Worship Jaiteh, Counsel Gaye also relied on section 25(1)(c) of the 1997 Constitution of the Republic of the Gambia (the Constitution) for the proposition that “Every person shall have the right to:- (c) freedom to practice any religion and to manifest such practice”.
In delivering his marathon judgment, His Worship Jaiteh also incorporated the submissions of defense Counsel Lamin K Mboge to the effect that the case underscores an “abuse of power and authority”, and that the prosecution’s evidence is littered with “hearsay”. On conspiracy, Mboge earlier argued that the charge must fail as the first accused was clearly “not in the know” and could therefore not have conspired with anyone. Mboge was also said to have highlighted for the court the evidence of the prosecution’s first witness who admitted under cross-examination that “religion is a personal matter and that people pray on different days” going back to his younger days. He further submitted that not applying the law to the whole country was discriminatory and that that was in itself “unconstitutional”.
In reaching the decision that there was no evidence of lawful orders from the President, His Worship Jaiteh wondered why the Governor of the West Coast Region was not called as the prosecution’s “star witness”. According to him, the Governor is empowered under section 124(1)(a) of the Local Government Act 2002 to exercise executive powers in the name of the President. Would this have made a difference? Should it have made a difference? I respectfully submit that even where there was no issue whatsoever that the Caliph General and the former Alkalo received the purported “lawful orders” of the President, the accused persons must still be acquitted for the reasons hereunder.
With allegations as simple as these, and requiring no factual shifting whatsoever to decide the manufactured dispute, it is scandalous that the case took a whole ten months for determination. Of course the prosecution is free to travel the length and breadth of the country to gather its evidence and bring all the witnesses it can find. However, the dispute is wholly legal and it is irrelevant whether the Caliph General, and the Alkalo, received the presidential order to pray on 28 July or not pray at all after that date. The only issue before the Court, and this was consistently flagged by the defence, was whether the president, or any other person, or entity, is possessed of the lawful authority to order anyone to perform Eid el Fitr prayers on any particular day. It is also the principal reason why Magistrate Omar Cham’s failure to terminate the case at the end of the prosecution evidence was so incomprehensible.
At section 25 (1) of the Constitution, the fundamental freedoms are expressly spelt out. Pertinently for present purposes, “Every person shall have the right to:- (b) freedom of thought, conscience and belief, which shall include academic freedom; and (c) freedom to practice any religion and to manifest such practice;” In a contest between 25 (1) (b), and, or, (c) of the Constitution, and sections 116, and 368 of the Criminal Code, 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” (see Section 4).
Along the same lines, and more poignantly, Article 8 of the African Charter on Human and Peoples Rights states:- “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms”.
At Article 18 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 thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”.
Of course, the modern forerunner of the values encapsulated in all the above instruments is none other than the First Amendment of the United States Constitution, the so-called “establishment clause”. It stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...” These measures were necessitated by conflict and its causes over the centuries, and few aspects of human intercourse has the potentiality to be more explosive than religious disputes, clearly one of the precipitating forces behind seventeenth century European migration to the United States, and the senseless carnage that even today blights the security of many communities.
Chapter IV is therefore not in the Constitution by accident. 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 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 sections 116, and 368, of the Criminal Code, 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.
As contended by Counsel Mboge, there was palpable discrimination in applying one standard to the Greater Banjul area, and the West Coast Region, and a substantively different standard to the rest of the country. Except for the clear recognition by political authority that enforcing such a baseless pronouncement nationwide would have serious implications, there was no reason for this differential application of a purported law when the medium relied on for transmitting the relevant information was GRTS which was accessible nationwide. At section 33 of the Constitution, discrimination is expressly prohibited:-
All persons shall be equal before the law
Subject to the provisions of subsection (5), no law shall make any provision which is discriminatory either of itself or in its effect
Subject to the provisions of subsection (5), no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority
As entrenched clauses, the fundamental freedoms are derogable only in an emergency, and expressly via an Act of the National Assembly (see section 35 (1) of the Constitution). If such a power is invoked by the National Assembly, 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”
On the facts of this case, there is no alternative to rejecting the unreasonable and unlawful Executive nullification of the fundamental freedoms in so far as the Constitution, if in theory only, remains the supreme law of The Gambia. The supremacy statement is an express component of the Constitutional text, and as such, inferior law in the mould of sections 116, and 368 of the Criminal Code, cannot control its provisions. They strike at the heart of constitutional protection of religious freedom and conscience at section 25 (1) (b) and (c) of the Constitution.
I once more salute His Worship Jaiteh for reaching the only verdict capable of commanding professional and public respect on the facts of this case. Judicial officers must note that they will not be celebrated for merely sitting on the bench. In appropriate cases, they must look the drivers of public power in the face and say sorry but I must apply the law and it says the accused must be acquitted. Better to take a long view of life and do the right thing especially when the watching public knows that a particular prosecution is utterly nonsensical and abusive.