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.
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