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Momodou
Denmark
11835 Posts |
 Posted - 17 Oct 2006 : 02:24:56
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BUNJA DARBOE AND CO AT COURT MARTIAL
By Fabakary B. Ceesay and Bubacarr K. Sowe
The court martial involving Captain Bunja Darboe and others for their alleged involvement in the 21st March foiled coup has commenced hearing at the Yundum Army Barracks with various charges preferred against them. So far ten (10) Army Officers were involved in the trial with various charges.
Captain Bunja Darboe, Captain Yaya Darboe, Captain Wassa Camara and Second Lieutenant (2nd Lt) Faring Sanyang, are charged with four (4) counts. The charges are, counselling or procuring of persons, conspiracy to cause mutiny, conspiracy to commit treason and mutiny. On the other hand, Captain Abdoukarim Jah, Captain Pierre J. Mendy, Lieutenant Momodou Alieu Bah, Corporal Samba Bah, Lance Corporal Babou Janha and Private Alagie Nying are charged with failure to report mutiny, concealment of treason by failing to make other reasonable means to prevent mutiny. All ten (10) men pleaded not guilty to the charges.
Testifying before the court martial first class Detective 1580 Abdoulie Sowe said: “On the 21st of March 2006, a Panel comprising the Police, NIA and GAF, of which I was part of was set up to investigate the involvement of the accused in the alleged failed coup. Captain Wassa Camara, Captain Yaya Darboe and Private Alagie Nying were brought to the Panel on different dates and he was asked to obtain a statement from each of them.” He noted that, the accused persons voluntarily gave their statements about their knowledge, involvement and role in the abortive coup; in the presence of an independent witness, without being subjected to any force or torture.
Going further Detective 1580 Sowe, indicated that while he was on the Panel on different dates, Captain Bunja Darboe, Lieutenant Momodou Alieu Bah, 2nd Lieutenant Faring Sanyang, Captain Pierre J. Mendy and Lance Corporal Babou Janha, were brought before the Panel to explain they knew about the filed coup. He told the court that Detective 1208 Boto Keita and 1838 Lamin cham were asked to obtain statements from them. Detective 1580 Sowe, pointed out that all accused persons voluntarily wrote their statements without force or duress. He added that Lance Corporal Babou Janha preferred to make his statement in his own language, Wollof, which was written by 1838 Cham and later interpreted to him (Babou Janha) and endorsed by him. The witness further told the court that all the statements were made in the court in the presence of an independent witness who also signed it. It was endorsed by the Detective in his presence. When the Prosecution attempted to tender the statements the defence team objected, submitting that the statements cannot be taken as exhibits as there are many alterations on both the cautionary statements and voluntarily statements. They also argued that most of the statements were not taken by the officer testifying. The witness testifying told the court that Detectives Boto Keita and Lamin Cham have travelled to Basse (URD). The defence team also objected that if the Prosecution cannot procure the officers who were absent then the statements could be tendered by a subordinate officer, but by his superior. “This witness is incompetent in law to tender the document.” The defence also argued that, the cautionary and voluntarily statements from the accused persons different dates and that some statements were not dated. The defence posited that there are alterations on the face of the cautionary statement of Captain Bunja Darboe an alteration concerning his age. They pointed out that the address of the independent witness of Captain Bunja Darboe was altered from Sukuta, Kombo North to Barra, NBD and that the phone number of the witness did not appear on the undated cautionary statement. They also argued that there is an additional statement to the second cautionary statement of Captain Bunja Darboe which, according to them, is not in line with the first statement. “None of these statements was obtained freely but under severe duress. We are challenging the statements sought to be tendered as exhibit,” the defence argued.
Lawyer Neneh Cham told the court that the cautionary statements of Babou Janha and Alagi Nying were not witnessed by an independent witness. She cited a provision of the Evidence Act to support her position. She said the prosecution have not complied with the Evidence Act, therefore the cautionary statements of Babou Janha and Alagi Nying cannot be admitted. She also cited the case of Ida Ceesay versus the state that was presided over by the Gambia Court of Appeal.
The Acting Director of Public Prosecutions, Emmanuel Fagbenle, pointed out that there must be evidence that the statements were taken under duress. “The defence cannot show any fact to justify their claims.”
Fagbenle further told the court that the position of the law is flexible to accommodate the truth. He went on to cite section 237 of the Criminal Procedure Code. He argued that the defence lawyer should make an application for the prosecution to give them some of the documents, and not to ask for a withdrawal of the documents.
“The witness in the box said they work as a team to take the statements. He gave a detailed account of what transpired during the course of the investigation. He said one of the panel members had gone to London, and Keita and Cham traveled to Basse. There is nothing on record to show that the witness is a subordinate officer in that office,” he argued.
“We object for a trial within trial. There should be fact on record to show that the request for voir dire is justifiable,” he remarked.
In his ruling, the judge advocate Justice Agim, said the defence should have filed a notice within seven days of the receipt of indictment and indicate that they are challenging the voluntariness of the statements of the accused persons. He said this was not done by the defence and it was not also raised by the prosecution. He said the prosecution failed to raise the issue and has therefore waived the legal burden on the defence to satify this requirement. He also ruled that the document cannot be admitted as exhibits in the absence of Keita and Cham. He however admitted these documents for identification purposes. He ruled that the statements of Captain Yahya Darboe, Captain Wassa Camara and Babou Janha should be subjected to a trial within trial.
The defence team consisted of Lawyers, Lamin S. Camara, who was also holding brief for Lawyer Borry Touray, Lamin K. Mboge, also holding brief for Lawyer Lamin Jobarteh, Neneh Cham and Musa O.S Barkely. Proceedings continue for further hearing. See next issue for Saturday’s proceedings which commenced the trial within a trial. For the benefit of the reader, in the trial within a trial the court-martial will determine whether or not the statements were obtained voluntarily in the presence of an independent witness. If the court finds that the accused had been cautioned by the officer and made the statements voluntarily in the presence of an independent witness, it will admit the statements in evidence. Otherwise they will be rejected.
Source: Foroyaa Newspaper Burning Issue
Issue No. 89/2006, 16-17 October, 2006
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