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Nyarikangbanna
United Kingdom
1382 Posts |
 Posted - 19 Aug 2007 : 17:21:42
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The Unsafe Convictions
Mr. Editor,
On the 21st March 2006, the quasi-military government of the West African state of the Gambia announced that it has foiled a coup to topple the country’s apparent democratically elected government. Several senior military officers and some prominent civilians including a sitting member of parliament belonging to the ruling APRC, Hon. Demba Dem were subsequently arrested and, with the exception of Ms Mariam Denton, a respected prominent lawyer-cum-politician and the disgraced former Speaker of Parliament, Mr. Sheriff Mustapha Dibba among a few, charged with offences ranging from treason to concealment of treason. Under the 1997 Gambian Constitution, the offence of treason is punishable by death. The accused military officers were arraigned before a military tribunal headed by Justice Chief Akeyome Agim, an Appeal Court Judge and former Director of Public Prosecution, while the accused civilians were tried by a conventional High Court. The Military tribunal found all the accused military officers guilty as charged and sentenced them to various prison terms including life imprisonment. None of the accused was, however, given a death sentence.
Prior to their trial and subsequent convictions, the state owned radio and television services GRTS, broadcasted purported confession statements from the accused persons, allegedly confessing to their crimes. These purported confessions later constitute, essentially, a fundamental part of the prosecution’s case during trial thus, prompting the defense to attack their admissibility in evidences citing very serious concerns about their voluntariness. The tribunal responded by employing the ‘vior dire’ instrument as a means of determining the admissibility of the confessions. ‘Vior dire’ is a legal instrument normally employed during trial to determine the admissibility of confessions of which factual issues about the manner in which they were obtained frequently arise. It is sometimes referred to as a ‘trial within a trial’.
Why are the confessions significant
Any adverse admission relevant to the issue of guilt in a criminal proceeding is known at common law as ‘confession’. Although subject to the overriding consideration that they must be obtained voluntarily, confessions are one of the most reliable evidence that can be produced before a court of law. The underlying justification for this view is that a party would not voluntarily make a statement adverse to his case unless it was true. Therefore, if the confessions heavily relied upon in evidence, by the state during the tribunal’s proceedings were obtained voluntarily, they would not only be admissible in evidence but would also be one of the most reliable evidences any court of law or tribunal would seize on to hand down a sound conviction against the defendants.
Are the confessions voluntary
It is a fundamental requirement at common law that the admissibility in evidence of any confession against any person, equally of any oral answer given by that person to a question put to him by an investigating authority e.g. a Police officer, and of any statement made by that person that it should have been voluntary in the sense that it has not been obtained from him by fear of prejudice, hope of advantage or by oppression. [See Ibrahim v. R [1914] AC 599 ]. Thus, the confessions adduced in evidence by the prosecution cannot be said to be voluntary if they were obtained by means of the aforementioned exercised or held out by a person in authority.
In their testimonies as reproduced by Foroyaa Newspaper, almost all the accused contended that their confessions were obtained by means of torture including electrocution. 2nd Lt. Pharing Sanyang stated that the investigating panel presided over by one Mr. Momodou Hydara, a senior intelligence officer at the notorious National Intelligence Agency, had asked him to write a confession statement to the effect that he knew about the coup and was part of it but that when he refused, he was fixed to two electric wires and got electrocuted. He further stated that it was as a result of the terrible pain he endured from this cruel ordeal and an advice from one Capt. Martin that writing a confession statement was the only way of saving his life that he eventually wrote one. Ms Mariam Bah-Darboe, the wife of Capt. Yaya Darboe, testified that she had found her husband with a swollen face during her first visit to his place of imprisonment. This claim was further buttressed by a Medical officer from the Eye Department of the Royal Victoria Hospital who testified that the accused left eye was red, the lid turned and the pupil larger as a result of the turned eye-lip. All these are clear attributes of torture. Capt. Bunja Darboe, an Ex- Army Spokesman, also testified showing several scars on his head which he attributed to the allege torture he endured in the hands of the soldiers aiding the investigation. Similar claims were made by Capt. John Mendy, Ex-commanding Officer of Fajara Barracks but in his case the torture did not prevail saved for inducing him to lie [purportedly] that he knew about the coup through one RSM Alpha Bah. According to Capt. Mendy, he was later persuaded to sign a pre-drafted cautionary statement after he was assured that he would be freed and charges against him dropped in exchange for his service as a prosecution witness during trial. In other words, the investigating authorities had exercised an advantage of hope as a means of obtaining a confession from him. These are serious allegations which if sufficed could potentially render the confessions inadmissible in any court of law on the grounds of being involuntary. This may as well bring the prosecution case on to its knees thereby leading to the acquittal of the defendants unless it is [the prosecution] able to induce very strong eccentric evidence[s] that are independent of the involuntary confessions and which strongly points to the defendants’ guilt beyond all reasonable doubts. It is to be noted that the mere fact that the defendants alleged that their confessions were involuntary does not necessary mean that the trial judge should refuse their admission in evidence. The allegations would have to be proven notwithstanding any suspicion they would/ may have generated over the credibility of the prosecution’s case. It is for this reason that the 'vior dire' instrument had to be employed as a means of availing the tribunal the opportunity to investigate the allegations and satisfy itself with the truthfulness or lack of it of the allegations.
Standard of Proof
In a criminal case the standard required to proof the defendant’s guilt is ‘Beyond reasonable doubt’. The same standard of proof is required of the prosecution in relation to questions of admissibility in evidence relating to secondary facts such as the voluntariness of a confession. This burden is normally shouldered by the prosecution only. If for any reason the burden of proof on an issue affecting guilt is shifted on to the defense, it is not necessary for the issue to be proven beyond reasonable doubt. In that case the standard required of the defense is nothing higher than the burden of proof which would normally rest upon a plaintiff or an accused in a civil proceeding, that is, ‘on a balance of probabilities’. [ See R v. Carr-Briant [1943] KB 607 ]. Given that it was the defense who asserted that the confessions were involuntary, they must therefore shoulder the burden of proof to that effect hence, the maxim: ‘He who asserts must prove’. In other words, the burden of proof at this point had shifted on to the defense. Thus, if after hearing submissions from both parties in the 'vior dire' and on the basis of the evidence before it, the tribunal was in a position to conclude that on a ‘balance of probabilities’ the confessions adduced in evidence by the prosecution were obtained by means of torture and an exercise of advantage of hope, it should have concluded that the confessions were involuntary and therefore inadmissible. To thwart this, the prosecution would have to prove beyond reasonable doubt that the confessions were voluntary. If the defense were able to discharge their civil standard burden of proof, this would also mean the prosecution would not be able to discharge their own burden of proof as a reasonable doubt would have been generated over their case.
Did Justice Agim applied the right test
In his ruling, the Judge Advocate, Justice Agim, ruled in the case of the 2nd accused person, Capt. Yaya Darboe and the 4th accused 2nd Lt. Pharing Sanyang that the allegation of torture and duress meted out against them were not proven beyond reasonable doubt. He justified his conclusion by citing two incidents in which the wife of the 2nd accused Ms Mariam Bah-Darboe contradicted herself, implying that she was not credible. He also stated that the optical lenses prescribed and bought for the accused were not tendered in court as evidence. He further stated that the claims of 2nd Lt. Pharing Sanyang that he was stabbed with a bayonet and his head hit with a pistol was not proven by any medical report. It is explicitly clear from this that the learned judge had applied the test of ‘beyond reasonable doubt’ to reach his conclusion. This is clearly a misapplication of the substantive law as this test is only meant for the prosecution to satisfy. The defense only has to prove its case on a balance of probabilities. Given that the burden of proving the allegation of torture in this case resides on the defense, the learned judge should have applied the civil standard test of ‘on a balance of probabilities’. Whether this was a mere error or that the learned Judge Advocate has had extraneous reasons for his default especially given that President Jammeh had recently praised him together with Justice M.A Paul alias Justice Eternity as the best judges in the country, his failure to apply the civil standard test in this case is a fundamental flaw which must have influenced his judgment.
Suppose the learned Judge Advocate had applied the civil standard test of ‘on a balance of probabilities’, would he have considered Ms Darboe’s trivial contradictions as mere attributes of a traumatized wife so overcome by grief that she could not pay greater attention to every trivial detail of the physical wellbeing of her battered and imprisoned husband or would he still dismissed her as a lying wife of a renegade soldier even though substantial part of her testimony were corroborated by a medical expert who treated her husband? Would it have been required of the defense to tender the optical lenses prescribed for Capt. Yaya Darboe to make the testimonies of the medical expert witness watertight? Would he also have accepted the wounds on 2nd Lt. Pharing Sanyang’s , which he had himself examined, as evidence of torture despite not been backed up by a medical report and especially given that the prosecution did not provide any alternative suggestion as to the possible cause of the accused person’s injuries? The answers to all these questions are known only to Justice Agim and God. Nevertheless, it would not suffice to say that the learned Judge Advocate would have still admitted the confessions in evidence even if he had applied the right standard of proof as that would be an irrelevant consideration. The fact that the learned Judge Advocate misapplied the substantive law on an issue that is so fundamental to the question of guilt is enough to render the convictions resulting from the conclusions thereto unsafe. In that respect, the convictions handed down on the military defendants are therefore unsafe and should be quashed.
Acknowledgement: - I am indebted to Mr. Momodou Camara of Bantaba on Cyberspace for making available in his forum Foroyaa Newspaper’s coverage of the tribunal’s proceedings which I found very concise and detailed and without which, I must admit, this exercise would not have being possible.
SS Daffeh
Essex, UK.
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I do not oppose unity but I oppose dumb union. |
Edited by - Nyarikangbanna on 19 Aug 2007 17:49:40 |
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Karamba
United Kingdom
3820 Posts |
Posted - 19 Aug 2007 : 23:29:47
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Daffeh,
You have provided very relevant perspectives in a coherent sequence of reasoning. This is a useful material for future reference and good for the archives to serve a multi purpose. I think you have come up with a real good stuff and wish to thank you for your great contribution. Well done! |
Karamba |
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Santanfara
3460 Posts |
Posted - 19 Aug 2007 : 23:34:58
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| nyari ,your piece move me a lot .i am coming to terms with the sentencing of Aleiu Jobe a good friend of mine also made the socall confession. Alieu ,the president to be was a close friend and now locked up for twenty years is very harsh . i didn't think justice was done . |
Surah- Ar-Rum 30-22
"And among His signs is the creation of heavens and the earth, and the difference of your languages and colours. verily, in that are indeed signs for men of sound knowledge." Qu'ran
www.suntoumana.blogspot.com |
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Santanfara
3460 Posts |
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Alhassan
Sweden
813 Posts |
Posted - 20 Aug 2007 : 14:13:10
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Santanfara,
Why? Don't you think your friend might have changed? Have you heard what his uncle said? I too know Tamsir Jassey very well. I cannot say that Tamsir was forced to say what he said on TV. Hence I was not present and know nothing about him for the past years I keep quite until I have something else to come up with about his inocence.
Gambia today is different. There is a lot of revenge thinkings amongst us which sets Gambia back. |
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kondorong
Gambia
4380 Posts |
Posted - 20 Aug 2007 : 19:18:17
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quote:
Originally posted by Alhassan
Santanfara,
... I keep quite until I have something else to come up with about his inocence.
There is a lot of revenge thinkings amongst us which sets Gambia back.
You dont have to keep quiet. Speak your mind as a citizen. At least that how democracy is modelled.
Where ever there is a revenge, there must have been wrongs. Atleast thats my believe. So keeping quite in the face of wrongs makes you an accomplice.
Dont tell me " we did not know" a famous slogan a few decades ago. |
“When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it--always.” |
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kayjatta
2978 Posts |
Posted - 21 Aug 2007 : 00:00:01
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Thanks Nyari. This is a very interesting case. I am intrigued by the geographical legalese here. "On a balance of probabilities" (I guess British) , we call it "preponderance of the evidence" here (U.S.). Somewhere in the text these words should be corrected: "arranged" (at the beginning) should be "arraigned" , and "collaborated" (middle) should be "corroborated".Thanks. |
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Alhassan
Sweden
813 Posts |
Posted - 21 Aug 2007 : 08:31:05
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Santanfara,
If I speak my mind then I am called all sorts of names because people do not like to here others views. only views of those who oppose. This is not my reason of debating here. Moreover most of the debates here will not reach others than bantaba members. Sometimes Gambians do not want facts. That is what I have observed here. If people come with different views straight away you are suspected as a Jammeh spy. There are good for nothing people like LEMON TIME who has no views of anything. He always calls people names because they have different views as his friends. This is a very rotten approach. Ii is true there are sessible people on the forum, but some of the guys are realy nuts.
Why should withnesses keep quite with the truth? There must be an intrest. Only if they want to blaim the wrong guy. If the withness has something, let them come up with it. As people God has told us to speak the truth even if a knife is put on your troath. I shall always speak the truth I Know so long I am alive. Those who deal with me know this.That is why many Gambians say that I am short tempered. |
Edited by - Alhassan on 21 Aug 2007 08:35:54 |
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kayjatta
2978 Posts |
Posted - 21 Aug 2007 : 08:37:54
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| You are right Alhassan , I understand what you mean. I get frustrated sometimes too because people do not want to hear the other side of the story. But that should not stop us from discussing. This is a platform where we can agree to disagree. Your views are important only if they are expressed , and no matter how controversial they are they should be respected. |
Edited by - kayjatta on 21 Aug 2007 08:38:25 |
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Alhassan
Sweden
813 Posts |
Posted - 21 Aug 2007 : 10:12:41
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Kayjatta,
Having other views is not being controversial. But in the Gambian contex it is. |
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kayjatta
2978 Posts |
Posted - 21 Aug 2007 : 10:19:44
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| That is true , but that should not intimidate you. That is what pluralistic societies are for , divergent views. |
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Alhassan
Sweden
813 Posts |
Posted - 21 Aug 2007 : 14:59:05
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kayjatta,
Divergent views does not mean intermidation or calling names. I have learnt a lot here and this is very strrange to me living in Sweden. I have not experienced it yet only among Gambians. This one of the things that make Gambia backward and underdeveloped. |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 21 Aug 2007 : 18:02:08
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Thank you guys [Karamba and santafara] for your compliments. Thank you Kayjatta too for spotting two editorial oversights. I hope Admin. will carry out your instructions. It has my blessing.
Cheers
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I do not oppose unity but I oppose dumb union. |
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tapalapa
United Kingdom
202 Posts |
Posted - 21 Aug 2007 : 20:05:30
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I would like to tell you my experiences of Bantaba- I choose not to get involved too much anymore- I just observe.
When I have put my views forward in the past, members jump on them straight away.
I am disappointed in the amount of personal name calling and rudeness that people convey the chosen few whom they do not like- An example is the recent personal attack on Bev. Bev has every right to participate in Bantaba, we should be tolerant and open to the different ways that people carry out their lives.
I will always endevour to approach topics with tolerance, respect and remain positive.
I just wish members would go back to the drawing board and read what
the philosophy of what Bantaba is about
I am not prepared to be shot at every time i have a view that is different, it saps my energy
I await the onslaught !
Tapa
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Janko
Gambia
1267 Posts |
Posted - 28 Oct 2007 : 11:09:23
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Two questions keep coming to mind after going through your eloquent reflection, thanks.
What chances had the defence counsel? (in hindsight)
Who gets the benefit of the doubt? (by and large.)
What chances had the defence counsel?
The basic determinant of a fair trial is validity of incrimination.
Treason is a very serious and difficult crime to both prosecute and defend.
The defence would have had an improved prospect by probing the foundation of indictment and not appropriateness of evidence. Contesting the authenticity of evidence is in itself accommodating the incrimination (treason).
Who gets the benefit of the doubt?
The Beyond reasonable doubt yardstick supplemented with the innocent until proven guilty principle guarantees fair trail (Safe Convictions). A fair trail in turn depends on what state of affair prevails at the time (in this case, the scenario is “quasi-military”)
In a trail where innocent until proven guilty is basic, the defendant gets the benefit of the doubt. Nevertheless, in a trail where guilty until proven innocent is basic the prosecutor gets the benefit of the doubt.
Noteworthy is, even whereas the scenario is “quasi-military” the administration of justice is expected to be unbiased.
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Clean your house before pointing a finger ... Never be moved by delirious Well-wishers in their ecstasy |
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