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Momodou
Denmark
11833 Posts |
 Posted - 01 Nov 2006 : 16:25:27
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BUNJA DARBOE AND CO COURT ADMITS STATEMENT
It the general court-martial of Bunja Darboe and others the Judge advocate, Justice Agim, on Friday 26th October 2006, held that the cautionary statement of Captain Yaya Darboe was obtained voluntarily in the presence of an independent witness, dismissing the testimonies of defence witnesses as contradicting each other.
This was the ruling in the trial within a trial, which arose from the objection by the defence to the tendering of the cautionary statement of Captain Darboe. In short, in the trial within a trial the court had to determine whether or not the cautionary statement was obtained voluntarily or under duress or by inducement, and whether an independent witness was present.
The prosecution called witnesses to prove that the statement was obtained voluntarily in the presence of an independent witness. After this, the defence called witnesses to prove that the statement was obtained as a result of torture and that there was no independent witness. Upon completion of the testimonies of all witnesses both prosecution and defence addressed the court. Below is a summary of their submissions.
ADDRESS BY BORRY TOURAY
In his submission defence counsel Borry Touray indicated that cautionary warnings were mentioned to the accused person only once. He said the cautionary warnings were mentioned to the accused person by Tijan Bojang, the independent witness, after Captain Darboe had written his statement. "What is important is that these words came from the independent witness and not from the officer who obtained the statement from the accused person. His position really conflicts with the statement of Abdoulie Sowe who stated in his evidence-in-chief that he cautioned the accused person." Counsel Touray, emphasised that both Abdoulie Sowe and Tijan Bojang are unreliable and that their testimonies are not reliable. Touray said that Tijan Bojang is not a reliable witness because he stated in his evidence-in-chief that he was called for the first time in his life to serve as an independent witness in the case of Yaya Darboe. He added that, Tijan Bojang had accepted that that was his first time to sign a cautionary statement. Touray indicated that Mr. Bojang never explained how he knew the procedures since he was a first timer. "If he was not an NIA, he would not be able to know the procedures." Mr. Touray buttressed that Mr. Bojang was not even intelligent in his own area (profession). He said that Bojang cannot differentiate between metres, centemetres and inches and that he does not even know the difference between ground and floor. Touray, pointed out that, Mr. Bojang has a special interest in the case, when he said that, "As a good citizen, he should be willing to serve as an independent witness." Counsel Touray stressed that, Mr. Bojang, could not explained to the court why he travelled almost thirty (30) kilometers from Sukuta to Banjul to serve as an independent witness. "There are thousands of ordinary citizens in Banjul who can serve as indpendent witness, but Mr. Bojang has special interest and that's why he travelled from Sukuta to Banjul," Mr. Touray, pointed out. He challenged the prosecution for their failure to produce the national identity card of Tijan Bojang, he said this indicates that Bojang is a member of the NIA. Mr. Touray further indicated that (PW1) Abdoulie Sowe has admitted that there was an armed officer present in the room while he was obtaining a statement from Yaya Darboe, while (PW2), Tijan Bojang denied that there was an armed officer present. Counsel Touray also indicated that the witness has said that he does not know whether that Yaya Darboe had a swollen eye. "But the medical documents tendered to the court indicated that Yaya Darboe's statement was obtained under inducement and not voluntarily." According to Borry, the witness said he was in a position to deny that Yaya Darboe was assaulted prior to the taking of the statement. "For nearly one hour and thirty minutes (1hrs-30ms) the accused has gone through baptism of fire. I therefore urge your Lordship to consider the evidence of the defence." Counsel Touray added that the accused was reminded not to forget the night of 22nd March and that the same armed officer who was present on that particular night was present when the accused was taken to make his statement. He also said that the accused has admitted being threatened and intimidated by the presence of that armed officer. "Therefore the statement was not made voluntarily, but under inducement, intimidation and torture," he stated.
ADDRESS BY ACTING DPP
The Acting Director of Public Prosecutions (DPP) Fagbenle, told the court that the testimony of Abdoulie Sowe and Tijan Bojang narrated confessions and they remained unshakable during cross examination. He said that the second witness, Tijan Bojang is the independent witness and that both him and Abdoulie Sowe confirmed that there was an independent witness. He added that, even the accused person (Yaya Darboe) confirmed that Tijan Bojang was introduced to him as an independent witness. Fagbenle noted that even though, the issue before the court is not about professionalism, the witness testified that he is a mason and he remained steadfast. He also added that, Tijan Bojang has demonstrated before the court the African method of measurement. "The measurement he gave in African norms is almost the same to the Western measurement; the presentation he made before this court is simple and honest. DPP Fagbenle stressed that, the statement of Captain Yaya Darboe was written by himself without duress, torture or force. He pointed out that the presence of an armed officer who was far away could not affect the statement and that his presence was justifiable as he was there to provide security for the accused person, the officer who was obtaining the statement and the independent witness. On the medical report, Fagbenle said, that it did not agreed with the statement of Captain Yaya Darboe. He said that medical document contain both the original and the duplicate, and that Captain Yaya Darboe, claimed to have given his medical papers to a prison officer called Wharf. "My Lord if a person comes to hospital for treatment, he must have gone home with something." He added that, the medical doctor did delay to explain the details of the trauma. The DPP also objected to the statement made by Mariama Bah that she is the wife of Captain Yaya Darboe. "She has told the court her name and surname that bears no relationship with Captain Yaya Darboe." Fagbenle also objected to her statement that she first visited Captain Yaya Darboe at the high court, but later admitted that it was at Mile Two (2). He added that she was pointing at her right eye, when the accused has already said his left eye. He said that even the lens that she claimed to buy did not show any date of buying neither a receipt to indicate the date. On the testimony of second Lt Pharing Sanyang, Fagbenle said Pharing has told the court that he was stabbed with a bayonet and that he was bleeding from his head. He stressed that Pharing never showed the court any part of his body that bears wound marks on him. "My lord, I urge this court not to believe his statement. No evidence was ever produced to show that Tijan Bojang works for the NIA. The statement of Yaya Darboe shows no evidence that supports his story about, hell manager, burial place and charity house." The fact is that, the Police Officer obtained a statement from the accused person (Yaya) and there was an independent witness,' he stressed. In conclusion, Fagbenle told the court that some of his witnesses were complaining of unwanted visitors at an unexpected time at their place of residence. In his response, Justice advocate Agim, told the DPP to advise his witnesses not to be intimidated by any one, "tell them not to be scared, they are a witness before a court."
Source: Foroyaa Newspaper Burning Issue
Issue No. 93/2006, 30-31 October, 2006
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