Verdict expected today on GPU Six

Justice Emmanuel Fagbenle of the High Court in Banjul will this morning deliver his judgement on the State vs GPU Six.

By PK Jarju

The six journalists Ebrima Sawaneh, Pap Saine, Sarata Jabbie-Dibba, Pap Modou Faal, Bai Emil Touray and Sam Sarr are standing trial on various criminal charges ranging from conspiracy to publish seditious publication, publishing seditious publication, conspiracy to commit criminal defamation and criminal defamation.

If found guilty, the journalist will be liable to hefty fines or sentence to a minimum of six to one year in prison with hard labour or both.

The director of public prosecution, Richard N. Chenge in his address to the court last week, urged the court to convict the six journalist on the ground that the Gambia Press Union's rejoinder to President Jammeh which the accused persons published in their newspapers was seditious material.

He added that sedition in law is anything that punishes publication that is made with intent to bring the government into hatred, ridicule and contempt. He adduced that for some body to publish in the papers to be read in the whole world is a motive of insinuating the President of killing the late Deyda Hydara, whom he said, has large followers in the Gambia and abroad.

He noted that if some body can do that, there is no doubt that he is inciting trouble in the Gambia so that followers of Deyda Hydara can get up and make trouble.

The prosecution stressed that the freedom of speech guaranteed under the 1997 constitution of the Gambian is not absolute, but restricted in the interest of public safety and national interest.

In response, Lamin Camara who is representing Ebrima Sawaneh, Pap Saine, Sarata Jabbie-Dibba, Pap Modou Faaland Bai Emil Touray urged the court to acquit and disharge his clients on the grounds the prosecution have failed to prove its case beyond reasonable doubt.

Foroyaa Editor, Sam Sarr, who represented himself also urged the court to acquit and discharge him.

Court Urged to Acquit and Discharge GPU Six

As the High court in Banjul set Wednesday August 2009 for judgment, Mr. Lamin S. Camara Lawyer for the accused six journalists charged with sedition, defamation and conspiracy on Monday 3 August 2009 told the High Court presided over by Justice Emmanuel Fagbenle to acquit and discharge the accused persons as the prosecution has failed to prove their case beyond reasonable doubt.

Defense Counsel Camara argued that the prosecution’s submission are inconsistent, pointing out that the assertion that the accused persons are all members of the Gambia Press Union is inaccurate. He further said evidence before the court has not proven that the accused persons are responsible for the publication of the alleged seditious publication.

Camara also said the director of public prosecution told the court that the accused persons conspired among themselves and therefore committed an offense. “This analysis by the prosecution is misconstrued, since there is nobody among them who said so,” he said, adding that the accused persons have proven their innocence, and there is no burden of proof by the prosecution.

Camara argued that the accused persons have denied the conspiracy charges and seditious publication in exhibit A and B contained in the Point and Foroyaa Newspapers.

He said Pap Saine and Sam Sarr denied being members of GPU due to their position as media chiefs who can only be advisers, as opposed to the evidence of the prosecution and their witnesses.

Camara stated that : “Exhibit (I) to (L) have shown to this court that their names of the accused persons are not found anywhere; and that they are the authors of the article. “This evidence is corroborated in material particular by Pw3 who said he extracted it from the accused persons. Pw2 confirmed to the court that the accused are not the author of the articles which were extracted from their emails.

“My Lord the lowest professional experience of the accused persons is seven years and the highest is thirty-nine years. They all have looked at exhibit A and B and stated loudly and clearly that it is not stated anywhere in this alleged publication that the President and the government of the Gambia have a hand in the killing of journalists Deyda Hydara.And this material evident is corroborated by Pw3 before the court, who also confirmed to the court that it is not stated anywhere that the president and the government are responsible for the killing of Deyda Hydara.

“It is particularized that the president and government of the Gambia are being defamed and that the President and the government are being intended to brought into hatred, contempt, or incitement,” Camara said. He added by quoting PW3 as saying: “My opinion is not contained in the alleged publication.” According to Camara, the court is compelled to go into a fishing expedition to find where it is stated that the President and the government are responsible for the killing of Deyda Hydara.

He further noted that evident of the document of defence number 6 exhibit A, B and C has not been controverted by exhibit A and B, being a reply to exhibit C. “The interpretation given to exhibit A and D by the prosecution is a erroneous as it is not controverted,” argued the defense counsel.

Camara also pointed out that the rhetoric question before the court is that the prosecution denied all the charges beyond reasonable doubt and that the evidence given by the prosecution witnesses are inconsistent, incredible and unreliable and the documentary evidence tendered are at best circumstantial.

Further addressing the court, Camara argued that Exhibit (I) to (L) have no value to the charges before the court, noting that: “exhibit (I) does not contain attachment of any publication,” citing the words of Ndey Tahpa Sosseh in the email tendered as exhibit(I) saying: “my apology, am not sure if the attachment came through.”

Going further, he said “the Prosecution has also referred to exhibit (J) but has failed to tell the court that there is a might of minds meet or conspiracy theory. He quoted Exhibit J, an email communication extracted from Sarata’s email addressed to Ndey as follows: “Ndey, Emil said let me ask you to drop the statement and he will call you tonight.”

He said this communication has been reechoed in exhibit E and there is nowhere in exhibit E that the first and the forth are part of the legal enterprise.

Counsel Camara also made reference to the GPU press release containing its letter head with the “headline GPU Reacts to President Jammeh’s statement,” noting that: “this is a GPU letterhead and there is nowhere where the email addresses of the accused persons are present.”

Camara upheld that the prosecution’s case on count one to four has failed as there is no evident before the court about an illegal enterprise of meeting of minds for any illegal enterprise as alleged director of prosecution- Mr Richard N. Chenge. Buttressing further, Camara said to reach conspiracy to commit criminal defamation, the prosecution has to establish a cooperative value in their objection, which he said are absent in exhibit E- relating to admissibility, citing section 31(1& 2) to back his arguments. Furthermore, he said: “there is nowhere in exhibit C and H that the agents took cautionary statement from the accused persons which is a condition for admissibility of the accused person,” making reference to the case of the State versus Jetayal Mballow, to back up his argument. He pointed out that the agents have failed in their statutory responsibility of taking cautionary statement of the accused persons and this is provided for by the accused persons in the case of Tijan E.. Bah who was called to witness the recording of the accused cautionary statements and was not called as a witness. Camara therefore submitted that the prosecution cannot abrogate or reprobate is misconceived. “Whether the prosecution tendered probative value of the content before the court is not sub-judicious,” he said.

Camara cited that accused person’s number 1, 2,3,4,5 and 7 have said they were not told of their arrest and were not allowed access to legal practitioner or family member or been informed of their rights to legal representation at the time of their detention, making reference to section 19 of the 1997 constitution, chapter four, concerning the protection of fundamental rights and freedom which are entrenched provisions of the constitution as follows: “Any person arrested shall be informed of his/her right to legal person, and shall be informed within three hours of the reason for his arrest and his right to consult a legal practitioner,” Camara adding “this law is mandatory as evident in the word shall. He said the evidence of the accused persons are not controverted by the prosecution submission that exhibit C to H were taken in violation of their rights.

He further said Exhibit A and B contained that very subject matter before the court and the offenses charged stated that only one paragraph is both seditious and defamatory to the person of the President and the government, outlining that “even the prosecution has doubted that the alleged publication is defamatory and seditious.”

Camara cited other authorities as a back up that the publication is not seditious and defamatory. He went further: “for a statement to be defamatory the written material must be looked at and nothing outside it.

Going further, he said: “to whether the written words are seditious or not other circumstances including public feeling at the time of the publication must be looked at. He said the paragraph cited by the prosecution is not enough to prove that the statement is seditious or defamatory. He argued that “not a single person of the readership has testified to state that the publication is capable of, and intended to bring into hatred, contempt or disaffection to the person of the President and government of the Gambia.

Camara also distinguished earlier evidence by the prosecution in his address relating the case to that of Lamin Waa Juwara, an opposition politician who was jailed for six months, in a prosecution led by the Mr Emmanuel Fagbenle, while current Chief Justice Emmanuel Agim was the director of public prosecution at the time. Camara said “Lamin Waa Juwara was charged with seditious intention and not defamatory publication as in this particular case.

Sam Sarr’s submission
In his submission, Sam Sarr Managing editor of Foroyaa newspaper who is representing himself associated himself with submission of the defense counsel.

He said “in this issue of freedom of expression arise in this trial section 25 subsection 1, paragraph A which state that every person shall have the right to freedom of expression which shall include freedom of the press and other information media. He described freedom of expression as a corner stone of democracy. He added that the section is further strengthened by section 207 which among others states that “the freedom and independence of the press and other information media are hereby guaranteed.”

The Foroyaa editor upheld that “there must be free flow of information and ideas which enable people to make informed choices and strengthen democracy.

He said the section requires the media to uphold the principles, provisions, and the objective of the constitution of the Gambia and the responsibility of the government for the people of the country. “This give rights to the press and the responsibility to scrutinize the executive.”

Sam said the press release referred to in this case signifies holding government accountable to the people as stipulated under the aforesaid section. He said the press release is an opportunity to reflect and comment on the preoccupation of public interest. Sarr submitted that the opportunity for the GPU’s request for publication, having regard that they had already published the interview of the President, and that this is bond out of exhibit 6B. He said “for any evidence it is clear that I had given all and sundry the opportunity of free debate, the very core of the concept of democracy.

He said it also evident that he is guided in his job as editor in a professional manner to ensure a divergent views and dissenting opinion. “It's evident that in my testimony I publish all views fit for publication. It is not the role of a publisher or editor of a newspaper to merely publish opinion that have been forwarded for publication, but to make the newspaper accessible to all views when it comes to the right to reply. Sam said he would have failed in his constitutional mandate and very unprofessional to prevent the GPU press release from publication, hence denying the GPU President her right to reply. He upheld that there is no evidence whatsoever shown by the prosecution before the court that the press release said the President and the government are responsible for the death of journalist Deyda Hydara.

He also among others asserted that non of the accused persons confirmed to the court or has been proven before this court to have conspired with him, as alleged by the prosecution and their witnesses, and therefore called on the court to acquit and discharged him accordingly.

The state Prosecution Richard Chenge was the centre of laughter when he rose and argued that the defense counsel cited authorities from Nigeria, saying the Nigerian and Ghanaian laws are not the same with that of the Gambia. He was however reminded by the court that he himself cited authorities in Nigeria during his address. Chenge however continued to insist while the whole courtroom laughed at him trying to find ways of making points against the defense as he continued.

Presiding judge adjourned the case to Wednesday 5 August 2009 for a historic judgment.

Sha'ban: Merits, Do's, and Dont's

By Mufti Taqi Usmani

Sha'ban is one of the meritorious months for which we find some particular instructions in the Sunnah of Prophet Muhammad, Sall-Allahu alayhi wa sallam. It is reported in the authentic ahadith that Prophet Muhammad, Sall-Allahu alayhi wa sallam, used to fast most of the month in Sha'ban. These fasts were not obligatory on him but Sha'ban is the month immediately preceding the month of Ramadan. Therefore, some preparatory measures are suggested by Prophet Muhammad, Sall-Allahu alayhi wa sallam. Some of these are given below:

1. The blessed companion Anas, Radi-Allahu anhu, reports that Prophet Muhammad, Sall-Allahu alayhi wa sallam, was asked, "Which fast is the most meritorious after the fasts of Ramadan?" He replied, "Fasts of Shaban in honor of Ramadan."

2. The blessed companion Usama ibn Zaid, Radi-Allahu anhu, reports that he asked Prophet Muhammad, Sall-Allahu alayhi wa sallam: "Messenger of Allah, I have seen you fasting in the month of Sha'ban so frequently that I have never seen you fasting in any other month." Prophet Muhammad, Sall-Allahu alayhi wa sallam, replied: "That (Sha'ban) is a month between Rajab and Ramadan which is neglected by many people. And it is a month in which an account of the deeds (of human beings) is presented before the Lord of the universe, so, I wish that my deeds be presented at a time when I am in a state of fasting."

3. Ummul Mu'mineen 'Aishah, Radi-Allahu anha, says, "Prophet Muhammad, Sall-Allahu alayhi wa sallam, used to fast the whole of Sha'ban. I said to him, 'Messenger of Allah, is Sha'ban your most favorite month for fasting?' He said, 'In this month Allah prescribes the list of the persons dying this year. Therefore, I like that my death comes when I am in a state of fasting."

4. In another Tradition she says, "Prophet Muhammad, Sall-Allahu alayhi wa sallam, would sometimes begin to fast continuously until we thought he would not stop fasting, and sometimes he used to stop fasting until we thought he would never fast. I never saw the Messenger of Allah, Sall-Allahu alayhi wa sallam, fasting a complete month, except the month of Ramadan, and I have never seen him fasting in a month more frequently than he did in Sha'ban."

5. In another report she says, "I never saw the Messenger of Allah, Sall-Allahu alayhi wa sallam, fasting in a month so profusely as he did in the month of Sha'ban. He used to fast in that month leaving only a few days, rather, he used to fast almost the whole of the month."

6. Ummul-Mu'mineen Umm Salamah, Radi-Allahu anha, says: "I have never seen the Messenger of Allah fasting for two months continuously except in the months of Sha'ban and Ramadan."

These reports indicate that fasting in the month of Sha'ban, though not obligatory, is so meritorious that Prophet Muhammad, Sall-Allahu alayhi wa sallam, did not like to miss it.

But it should be kept in mind that the fasts of Sha'ban are for those persons only who are capable of keeping them without causing deficiency in the obligatory fasts of Ramadan. Therefore, if one fears that after fasting in Sha'ban, he will lose strength or freshness for the fasts of Ramadan and will not be able to fast in it with freshness, he should not fast in Sha'ban, because the fasts of Ramadan, being obligatory, are more important than the optional fasts of Sha'ban. That is why Prophet Muhammad, Sall-Allahu alayhi wa sallam, himself has forbidden the Muslims from fasting one or two days immediately before the commencement of Ramadan. The blessed Companion Abu Hurairah, Radi-Allahu anhu, reports Prophet Muhammad, Sall-Allahu alayhi wa sallam, to have said, "Do not fast after the first half of the month of Sha'ban is gone."

According to another report Prophet Muhammad, Sall-Allahu alayhi wa sallam has said: "Do not precede the month of Ramadan with one or two fasts."

The essence of the above-quoted ahadith is that Prophet Muhammad, Sall-Allahu alayhi wa sallam, himself used to fast most of the month of Sha'ban, because he had no fear of developing weakness or weariness before the commencement of Ramadan. As for others, he ordered them not to fast after the 15th of Sha'ban for the fear that they would lose their strength and freshness before Ramadan starts, and would not be able to welcome the month of Ramadan with enthusiasm.

The Night of Bara'ah

Another significant feature of the month of Sha'ban is that it consists of a night which is termed in Shariah as "Laylatul-bara'ah" (The night of freedom from Fire). This is the night occurring between 14th and 15th day of Sha'ban. There are certain traditions of Prophet Muhammad, Sall-Allahu alayhi wa sallam, to prove that it is a meritorious night in which the people of the earth are attended by special Divine mercy. Some of these traditions are quoted as follows:

1. Ummul-Mu'mineen 'Aishah, Radi-Allahu anha, is reported to have said, "Once Prophet Muhammad, Sall-Allahu alayhi wa sallam, performed the Salah of the night (Tahajjud) and made a very long Sajdah until I feared that he had passed away. When I saw this, I rose (from my bed) and moved his thumb (to ascertain whether he is alive). The thumb moved, and I returned (to my place). Then I heard him saying in Sajdah: 'I seek refuge of Your forgiveness from Your punishment, and I seek refuge of Your pleasure from Your annoyance, and I seek Your refuge from Yourself. I cannot praise You as fully as You deserve. You are exactly as You have defined Yourself.' Thereafter, when he raised his head from Sajdah and finished his salah, he said to me: 'Aishah, did you think that the Prophet has betrayed you?' I said, 'No, O Prophet of Allah, but I was afraid that your soul has been taken away because your Sajdah was very long.' He asked me, 'Do you know which night is this?' I said, 'Allah and His Messenger know best.' He said, 'This is the night of the half of Sha'ban. Allah Almighty looks upon His slaves in this night and forgives those who seek forgiveness and bestows His mercy upon those who pray for mercy but keeps those who have malice (against a Muslim) as they were before, (and does not forgive them unless they relieve themselves from malice).'"

2. In another Tradition Sayyidah' Aishah, Radi-Allahu anha, has reported that Prophet Muhammad, Sall-Allahu alayhi wa sallam, has said, "Allah Almighty descends (in a manner He best knows it) in the night occurring in the middle of Sha'ban and forgives a large number of people more than the number of the fibers on the sheep of the tribe, Kalb."

Kalb was a big tribe the members of which had a very large number of sheep. Therefore, the last sentence of the hadith indicates the big number of the people who are forgiven in this night by Allah Almighty.

3. In yet another Tradition, she has reported Prophet Muhammad, Sall-Allahu alayhi wa sallam, to have said, "This is the middle Night of Sha'ban. Allah frees in it a large number of the people from Fire, more than the number of the hair growing on the sheep of the tribe, Kalb. But He does not even look at a person who associates partners with Allah, or at a person who nourishes malice in his heart (against someone), or at a person who cuts off the ties of kinship, or at a man who leaves his clothes extending beyond his ankles (as a sign of pride), or at a person who disobeys his parents, or at a person who has a habit of drinking wine."

4. Sayyidna Mu'adh ibn Jabal, Radi-Allahu anhu, reports that Prophet Muhammad, Sall-Allahu alayhi wa sallam, has said: "Allah Almighty looks upon all those created by Him in the middle Night of Sha'ban and forgives all those created by Him, except the one who associates partners with Him or the one who has malice in his heart (against a Muslim)".

Although the chain of narrators of some of these traditions suffers with some minor technical defects, yet when all these traditions are combined together, it becomes clear that this night has some well founded merits, and observing this night as a sacred night is not a baseless concoction as envisaged by some modern scholars who, on the basis of these minor defects, have totally rejected to give any special importance to this night. In fact, some of these traditions have been held by some scholars of hadith as authentic and the defects in the chain of some others have been treated by them as minor technical defects which, according to the science of hadith, are curable by the variety of their ways of narration. That is why the elders of the ummah have constantly been observing this night as a night of special merits and have been spending it in worship and prayers.

What Should be Done in this Night?

In order to observe the Night of Bara'ah, one should remain awakened in this night as much as he can. If someone has better opportunities, he should spend the whole night in worship and prayer. However, if one cannot do so for one reason or another, he can select a considerable portion of the night, preferably of the second half of it for this purpose, and should perform the following acts of worship:

(a) Salah. Salah is the most preferable act to be performed in this night. There is no particular number of Rak'at but preferably it should not be less than eight. It is also advisable that each part of the Salah like qiyam, rukoo' and sajdah should be longer than normal. The longest surahs of the Holy Qur'an one remembers by heart should be recited in the Salah of this night. If someone does not remember the long surahs, he can also recite several short surahs in one rak'ah.

(b) Tilawa. The recitation of the Holy Qur'an is another form of worship, very beneficent in this night. After performing Salah, or at any other time, one should recite as much of the Holy Qur'an as he can.

(c) Dhikr. One should also perform dhikr (recitation of the name of Allah) in this night. Particularly the following dhikr is very useful:

One should recite Salah (durood) on Prophet Muhammad, Sall-Allahu alayhi wa sallam, as many times as he can. The dhikr can also be recited while walking, lying on bed and during other hours of work or leisure.

(d) Dua. The best benefit one can draw from the blessings of this night is prayers and supplications. It is hoped that all the prayers in this night will be accepted by our Lord, insha-Allah. Prayer itself is an 'Ibadah, and Allah Almighty gives reward on each prayer along with the fulfillment of the supplicator's need. Even if the purpose prayed for is not achieved, one cannot be deprived of the reward of the prayer which is sometimes more precious than the mundane benefits one strives for. The prayers and supplications also strengthen one's relation with Allah Almighty, which is the main purpose of all kinds and forms of worship.

One can pray for whatever purpose he wishes. But the best supplications are the ones made by Prophet Muhammad, Sall-Allahu alayhi wa sallam. These are so comprehensive and all-encompassing prayers that all the human needs, of this world and the Hereafter, are fully covered in the eloquent expressions used in them. Actually, most of the prophetic prayers are so profound that human imagination can hardly match their greatness.

Several books in various languages are available which provide these prophetic prayers, and one should pray to Allah Almighty in accordance with them, whether by reciting their original Arabic text or by rendering their sense in one's own language.

(e) There are some people who cannot perform any additional Salah or recitations for any reason, like illness or weakness or being engaged in some other necessary activities. Such people also should not deprive themselves completely of the blessings of this night. They should observe the following acts:

(i) To perform the Salah of Maghrib, 'Isha' and Fajr with Jama'ah in the mosque, or in their homes in case of their being sick.

(ii) They should keep reciting the dhikr, particularly the one mentioned in para (c) above, in whatever condition they are until they sleep.

(iii) They should pray to Allah for their forgiveness and for their other objectives. One can do so even when he is in his bed.

(f) The women during their periods cannot perform salah, nor can they recite the Qur'an, but they can recite any dhikr, tasbeeh, durood sharif and can pray to Allah for whatever purpose they like in whatever language they wish. They can also recite the Arabic prayers mentioned in the Qur'an or in the hadith with the intention of supplication (and not with the intention of recitation).

(g) According to a hadith, which is relatively less authentic, Prophet Muhammad, Sall-Allahu alayhi wa sallam, went in this night to the graveyard of Baqi' where he prayed for the Muslims buried there. On this basis, some of the fuqaha hold it as mustahabb (advisable) in this night to go to the graveyard of the Muslims and recite Fatihah or any other part of the Qur'an, and pray for the dead. But this act is neither obligatory nor should it be performed as regularly as an obligatory act.

What Should Not be Done in This Night
1. As mentioned earlier, the Night of Bara'ah is a night in which special blessings are directed towards the Muslims. Therefore, this night should be spent in total submission to Allah Almighty, and one should refrain from all those activities, which may displease Allah. Although it is always incumbent upon every Muslim to abstain from sins, yet this abstinence becomes all the more necessary in such nights, because committing sins in this night will amount to responding to divine blessings with disobedience and felony. Such an arrogant attitude can invite nothing but the wrath of Allah. Therefore, one should strictly abstain from all the sins, particularly from those mentioned in the Hadith No. 3 quoted earlier in this article, because these sins make one devoid of the blessings of this night.

2. In this night some people indulge in some activities which they regard as necessary for the celebration of the Night of Bara'ah, like cooking some special type of meal, or illuminating houses or mosques, or improvised structures. All such activities are not only baseless and innovated in the later days by ignorant people, but in some cases they are pure imitation of some rituals performed by non-Muslim communities. Such imitation in itself is a sin; performing it in a blessed night like the Night of Bara'ah makes it worse. Muslims should strictly abstain from all such activities.

3. Some people spend this night in holding religious meetings and delivering long speeches. Such activities are also not advisable, because these acts can easily be performed in other nights. This night requires one to devote himself for the pure acts of worship only.

4. The acts of worship like Salah, recitation of the Qur'an and dhikr should be performed in this night individually, not collectively. The Nafl Salah should not be performed in Jama'ah, nor should the Muslims arrange gatherings in the mosques in order to celebrate the night in a collective manner.

On the contrary, this night is meant for worshipping Allah in solitude. It is the time to enjoy the direct contact with the Lord of the Universe, and to devote one's attention to Him and Him alone. These are the precious hours of the night in which nobody should intervene between one and his Lord, and one should turn to Allah with total concentration, not disturbed or intermitted by any one else.

That is why Prophet Muhammad, Sall-Allahu alayhi wa sallam, observed the acts of worship in this night in total seclusion, not accompanied by anyone, not even by his favorite life companion Sayyidah 'Aishah, Radi-Allahu anha, and that is why all forms of the optional worship (Nafl Ibadah), are advised by him to be done in individual, not in collective manner.

Fast of the 15th Sha'ban

On the day immediately following the Night of Bara'ah, i.e. the 15th of Sha'ban, it is mustahabb (advisable) to keep fast. Prophet Muhammad, Sall-Allahu alayhi wa sallam, is reported to have recommended this fast emphatically. Although the scholars of hadith have some doubts in the authenticity of this report, yet it is mentioned earlier that the fasts of the first half of Sha'ban have special merits and Prophet Muhammad, Sall-Allahu alayhi wa sallam, used to fast most of the days in Sha'ban. Moreover, a large number of the elders (salaf) of the Ummah have been observing the fast of the 15th of Sha'ban. This constant practice indicates that they have accepted the relevant hadith as authentic.

Therefore, it is advisable to fast the 15th of Sha'ban as an optional (nafl) fast. One can also keep a fast of qada on this day and it is hoped that he can also benefit from the merits of this fast.

Note: The 15th od Shaban will be on Thursday.