The trial of the six journalists arraigned on charges ranging from conspiracy to publish seditious publication, publishing seditious publication, conspiracy to commit criminal defamation and criminal defamation, yesterday continued at the High Court, presided over by Justice Fagbenle.

Lamin S. Camara, the Counsel representing the accused persons (Ebrima Sawaneh, Pap Saine, Sarata Jabbie-Dibba, Pap Modou Faal and Bai Emil Touray, in his address to the court, submitted that the accused persons are charged with seditious publication and conspiracy to commit criminal defamation, contrary to Section 51 - (A) sub section - (1)  and Section 178 of the CPC, respectively.

In his submission, Lawyer Camara adduced that the prosecution in their efforts to prove the charges against the accused persons, had called in three witnesses, all of them, operatives working for the National Intelligence Agency.

He submitted that the prosecution started with PW1, whose evidence was that he took the cautionary statements from all the accused persons, except the sixth accused person, Sam Sarr.

He added that PW1 had tendered all the cautionary statements, except the one for the sixth accused. He further submitted that PW1 also testified that he read the ‘cautionary wording’ before the statements were obtained from the accused.

Counsel Camara further told the court that the second prosecution witness, who is also an agent of the NIA, had testified that he was merely asked to arrest the six accused in the person of Sam Sarr.

He said during the course of the arrest, they also picked up the already acquitted Abubacarr SaidyKhan, for attempting to take snap of photographs. Lawyer Camara further submitted that this witness never adduced his opinion on exhibits A and B (Foroyaa and the Point Newspapers, respectively).

He further quoted PW2 as saying “After reading the Foroyaa in my opinion, what I understand is that the GPU is accusing the government and the President for killing Deyda Hydara.”

He then submitted that, PW2 had admitted that all the accused persons are members of the GPU, simply because they are all practising journalists.

Camara went on to submit that when the witness was asked about those working with GRTS, he retorted “I don’t know if they are members of GPU”.

Counsel Camara further submitted that when the witness was asked to state his opinion, on whether the President and the government were implicated in the death of the late Deyda Hydara, he replied “after reading the Newspaper in my opinion the government and the President are said to be responsible for the death of Deyda Hydara.”

Lawyer Camara submitted that the witness was further asked as to where it was mentioned in the said article. But in reply, he said, the witness clearly stated that it was not mentioned in any part of the article.

Counsel Camara submitted that when the witness was asked “if he read the statement he will understand that this is what they are saying.” He said the witness again testified that the statement is exclusive and is not stated therein.

Lawyer Camara further submitted that PW3, another agent of the NIA, had testified that he actually facilitated the printing of the exhibits: I, J, K and L, by helping the accused to have access to their email boxes.

He said PW3 went on to testify that he wrote their names on the exhibits, and that the accused are all members of the GPU.

Counsel Camara further stated that the witness also said he was present when the cautionary statements were obtained (that’s exhibit C, D, E, F, G and H), adding that PW1 had read the ‘cautionary wording’ before reading the confessional statements.

Counsel Camara submitted that when PW3 was asked by the DPP, as to whether he understands exhibits A and B, he responded by saying “they are alleging that the President and the government of the Republic of The Gambia are behind the killing of Deyda Hydara, and that there is no press freedom in the Gambia.”

Counsel further submitted that exhibits C to G are not confessional statements as alleged.

He adduced that, according to PW3, exhibits I to L, which were tendered in court are not authored by any of the accused persons whose names are written on them.

Camara also submitted that exhibits I to L still do not contain the alleged seditious publication, and that the exhibits were sent to the accused persons whose name are written on them.

Camara suggested that there are 18 and more recipients of the said statement which was by the GPU President.

He further submitted that with respect to exhibits C D, E, F and H, PW3 adduced that there is no name of any officer(s) who had cautioned or recorded the accused persons’ statements. Camara then submitted that PW3 adduced that, he does not know where the independent witness, Tijan E. Bah works and that he is not literate in English.

Camara stated that exhibit (L) is the last of the email which harped on pages 3, 4 and 5 of GPU reaction to President Jammeh’s interview, which is on a GPU letter head and there is nowhere on the exhibit that the email addresses of the accused persons are on pages 3, 4 and 5.

Camara submitted that PW3 had indicated that when the alleged seditious publication was downloaded from any accused persons’ inbox, his/her address is always written on it.

He further told the court that the email address of none of the accused persons is on pages 3, 4 and 5 of exhibit L.

The defence further submitted that “the prosecution’s case for conspiracy as charged in count one and four woefully failed, as there was no evidence before the court of any illegal enterprise by the accused persons for the meeting of the minds of the accused persons to have conspired to publish seditious publication, and conspired to publish criminal defamation.”

Camara then submitted that exhibit C to H must have no “probative value” at all, adding that the fact that objection was not taken to admissibility of the documents does not move the defence from discrediting the evidence of the prosecution.

Camara added that there is approbation and probation by the defence in respect to exhibit C.

Defence submitted that the test applied by the prosecution to exhibits C to H is suggestive that the exhibits are confessional statement.

He further submitted that it was not what was written on the papers. He cited Section 31 sub section (2) that there is no where on exhibits C to H that the accused persons have committed a crime.

 Counsel then invoked a Law Report (the State versus Jeteyel Mballow), which stated that the reading of the cautionary statement to the accused persons is mandatory, and that failure to record such would render the statement inadmissible, with no probative value.

Counsel further urged the court to look at exhibit C to H, for the court to realise that the agency was shying away from their statuary responsibility of cautioning all the accused persons, which he argued, is specifically provided in the statement.

Camara further argued that as stated by PW3, the independent witness (Tijan E. Bah) is an illiterate in English. He noted that he was not called as a witness, and that the statements were also recorded in English.

Camara further argued that the matter of probating and reprobating as submitted by the DPP is misconceived since the issue is not the admissibility, but the content of the statement, which he said, is more relevant. He said whether the court can add any probative value at the time or not, he said the statements which were tendered before the court was ‘simplicity admissibility,’ noting that the content was not the issue then.

Lawyer Camara submitted that the accused persons have said in their testimonies that they were not told about the reason(s) of their arrest and were not allowed to have access to legal practitioners of their own choice before exhibits C and H were recorded. He further cited Section 19 of the Constitution of the Gambia 1997, Chapter 4, that the protection of the fundamental rights and freedom of expression are “entrenched provision” of the Constitution.

He said the Constitution states that any arrested person must be informed about the reason of his/her arrest or detention in a language he/she understands. He said they must also have a right to consult a legal practitioner.

 He submitted that this part of the law is mandatory as evident in the use of the word “shall.” He argued that it is evident from the accused that the state agents are in breach. Camara then submitted that exhibits C to H were taken in flagrant violation of the accused persons’ constitutional rights, taking into account Section 19 of the Constitution.

Camara argued that “exhibits A and B contain the very subject matter of the offences charged, having all stated that only one paragraph in the reaction beginning with ‘mere speculation’ is both seditious and defamatory to the person of the President and the government of the Republic of The Gambia.”

He submitted that even the prosecution has doubted the alleged paragraph to be seditious and defamatory. According to him, his proof is based on count one of the particulars of offence.

Camara submitted that the use of the word “insinuation” by the prosecution shows that the meaning ascribed to it, is neither here nor there. This, he said, amounts to his submission that the statements ascribed to the accused persons have not been made.

The Counsel cited the authority of Mensah and others 1979 Ghana Law Report 523, 551 to back-up his argument.

He said the meaning given to that authority as interpreted by the DPP was incomplete for, as he put it, the authority shared his own view of the matter, in deciding whether the written matter is seditious or not. He posited that only the written materials have to be looked at and nothing else or outside.

The Defence further submitted that to determine whether the alleged seditious words were published with particular intent, other circumstances must be considered, i.e. like the audience addressed must be considered and the public feelings at that time of the publication. As he put it, it would help in the explanation of the appellant and the accused.

He further submitted that the court was made to believe that an alleged seditious publication does not suffice.

He further submitted that if Mensah’s is anything to go by, then the case of the prosecution has woefully failed, since not a single member of the readership have testified before the court to show the court that the alleged publication is intended to bring into hatred, contempt or excite disaffection against the person of the President or the government of The Gambia.

Lawyer Camara went on to suggest that even Lamin Waa Juwara’s case can be differentiated from this case, as according to him, he was charged with seditious intention and not publishing seditious publication or defamatory publication.

Counsel further stated that there is a requirement that an intent must be proven by the prosecution as stated in Mensah.

He, therefore, said the allegation made by the DPP is that the allegation is presumably actionable and that the damage is proved without the need of a proof.

Camara argued that this is applicable in civil and not in criminal prosecution, in which you must prove and not presume.

He submitted that it’s not about damage to reputation, but it’s about bringing or exciting disaffection, hatred or contempt against the President or the government.

Camara stated that the DPP cited Lamin Waa Juwara’s case and harped on the fact that “it was said in case there is no need for extrinsic evidence to prove sedition.”

He adduced that the court is enjoined to look at the dichotomy between Lamin Waa Juwara versus the State.

Counsel submitted that the words used by Lamin Waa Juwara, is completely different from what is in the exhibits: A and B.

Counsel Camara said that in Lamin Waa Juwara’s case, the court elucidated that the circumstances of the publication or utterance, among other matters, are relevant in deciding what the intention of the accused are.

He further argued that on the charges of seditious words the audience addressed and the state of the public feeling are material in the case.

Lawyer Camara further referred the court to R. Aguna and submitted that in the parameters laid down in Lamin Waa Juwara and Mensah’s cases, no evidence have been laid as to the state of the public feelings and the audience addressed.

He submitted that it is a try law that for the offences of sedition as stated in Section 52 of the CPC, there is a requirement for corroboration.

The Defence argued that the prosecution has not laid any evidence to corroborate the material particulars, be it prosecution or defence. He added that in this respect, what is required is not only the crime committed, but there must be proof that the accused persons committed it.

He referred the court to Okon Eko 2002 LRCNCC 15 at pages 17, 18 and 19 (Nigerian Law Report, Volume (3)) at the Supreme Court, on the meaning of corroboration. He submitted that on the status required, there is no independent testimony connecting the accused persons to the offences charged.

Counsel further suggested that in the event of corroboration for conviction, there must be credible, sufficient and satisfactory evidences. He submitted that in order to meet the minimum benchmark, “the authority gives us inconsistency that will do on the prosecution case.” He cited PW1 as saying “I took the statements and there was no agent present at the time of taking the recording.” 

The Counsel described the prosecution’s evidence as doubtful because of the use of the word innuendoes, and thus submitted that the conspiracy theory has not been proven.

He then referred the court to the State versus Andrew Onyea Toulu 2002/3 LRNCC 236, noting that if a crime is charged and the case for the prosecution is doubtful, the benefit of the doubt should be given to the defence. Counsel further submitted that a mere membership is a circumstantial evidence.

In the light of this, he referred the court to Logan and Lerick versus the Republic 2007/8, Ghana Law Report.

He said a mere membership of GPU does not suffice for commissioning the offence charged, as according to him, PW2 and PW3 have testified that every journalist is a member of the union.

The Counsel stated that Section 178 of the CPC is a definition section for libel, adding that it requires additional requirements, such as a proof of intent to defame. He suggested that it is a try law that status are given their literal meaning, and that if status are given their mens rea it cannot be proven.

Camara cited Section 51 of the CPC, which was read together with Section 52.

He submitted that what is stated in Section 51 of the CPC is disjunctive, while count one is conjunctive and count four conjunctive. He noted that count two and three, are all related to Section 52 subsection –1 (C) as amended by the Amendment Act 2005.

According to him, the language is clear that its wording derogate from Section 52 as amended.

Lawyer Camara submitted that the prosecution did not prove their case beyond all reasonable doubt, noting that the onus is on them.

The defense submitted further that the prosecution’s case is based on suspicion and speculation, which he added, is not a proof for a charge. He then referred the court to State versus Squn Otoyenyu, Supreme Court of Nigeria 2005 LRCNCC, page 4 and 5. This, he said, has made significant pronouncement of an onus to prove beyond any reasonable doubt.

Camara further submitted that since the prosecution had failed to prove all the charges against the accused persons, he urged the court to acquit and discharge all the accused persons.        

Camara submitted that PW3 had indicated that when the alleged seditious publication was downloaded from any accused persons’ inbox, his/her address is always written on it.

He further told the court that the email address of none of the accused persons is on pages 3, 4 and 5 of exhibit L.

The defence further submitted that “the prosecution’s case for conspiracy as charged in count one and four woefully failed, as there was no evidence before the court of any illegal enterprise by the accused persons for the meeting of the minds of the accused persons to have conspired to publish seditious publication, and conspired to publish criminal defamation.”

Camara then submitted that exhibit C to H must have no “probative value” at all, adding that the fact that objection was not taken to admissibility of the documents does not move the defence from discrediting the evidence of the prosecution.

Camara added that there is approbation and probation by the defence in respect to exhibit C.

Defence submitted that the test applied by the prosecution to exhibits C to H is suggestive that the exhibits are confessional statement.

He further submitted that it was not what was written on the papers. He cited Section 31 sub section (2) that there is no where on exhibits C to H that the accused persons have committed a crime.

 Counsel then invoked a Law Report (the State versus Jeteyel Mballow), which stated that the reading of the cautionary statement to the accused persons is mandatory, and that failure to record such would render the statement inadmissible, with no probative value.

Counsel further urged the court to look at exhibit C to H, for the court to realise that the agency was shying away from their statuary responsibility of cautioning all the accused persons, which he argued, is specifically provided in the statement.

Camara further argued that as stated by PW3, the independent witness (Tijan E. Bah) is an illiterate in English. He noted that he was not called as a witness, and that the statements were also recorded in English.

Camara further argued that the matter of probating and reprobating as submitted by the DPP is misconceived since the issue is not the admissibility, but the content of the statement, which he said, is more relevant. He said whether the court can add any probative value at the time or not, he said the statements which were tendered before the court was ‘simplicity admissibility,’ noting that the content was not the issue then.

Lawyer Camara submitted that the accused persons have said in their testimonies that they were not told about the reason(s) of their arrest and were not allowed to have access to legal practitioners of their own choice before exhibits C and H were recorded. He further cited Section 19 of the Constitution of the Gambia 1997, Chapter 4, that the protection of the fundamental rights and freedom of expression are “entrenched provision” of the Constitution.

He said the Constitution states that any arrested person must be informed about the reason of his/her arrest or detention in a language he/she understands. He said they must also have a right to consult a legal practitioner.

 He submitted that this part of the law is mandatory as evident in the use of the word “shall.” He argued that it is evident from the accused that the state agents are in breach. Camara then submitted that exhibits C to H were taken in flagrant violation of the accused persons’ constitutional rights, taking into account Section 19 of the Constitution.

Camara argued that “exhibits A and B contain the very subject matter of the offences charged, having all stated that only one paragraph in the reaction beginning with ‘mere speculation’ is both seditious and defamatory to the person of the President and the government of the Republic of The Gambia.”

He submitted that even the prosecution has doubted the alleged paragraph to be seditious and defamatory. According to him, his proof is based on count one of the particulars of offence.

Camara submitted that the use of the word “insinuation” by the prosecution shows that the meaning ascribed to it, is neither here nor there. This, he said, amounts to his submission that the statements ascribed to the accused persons have not been made.

The Counsel cited the authority of Mensah and others 1979 Ghana Law Report 523, 551 to back-up his argument.

He said the meaning given to that authority as interpreted by the DPP was incomplete for, as he put it, the authority shared his own view of the matter, in deciding whether the written matter is seditious or not. He posited that only the written materials have to be looked at and nothing else or outside.

The Defence further submitted that to determine whether the alleged seditious words were published with particular intent, other circumstances must be considered, i.e. like the audience addressed must be considered and the public feelings at that time of the publication. As he put it, it would help in the explanation of the appellant and the accused.

He further submitted that the court was made to believe that an alleged seditious publication does not suffice.

He further submitted that if Mensah’s is anything to go by, then the case of the prosecution has woefully failed, since not a single member of the readership have testified before the court to show the court that the alleged publication is intended to bring into hatred, contempt or excite disaffection against the person of the President or the government of The Gambia.

Lawyer Camara went on to suggest that even Lamin Waa Juwara’s case can be differentiated from this case, as according to him, he was charged with seditious intention and not publishing seditious publication or defamatory publication.

Counsel further stated that there is a requirement that an intent must be proven by the prosecution as stated in Mensah.

He, therefore, said the allegation made by the DPP is that the allegation is presumably actionable and that the damage is proved without the need of a proof.

Camara argued that this is applicable in civil and not in criminal prosecution, in which you must prove and not presume.

He submitted that it’s not about damage to reputation, but it’s about bringing or exciting disaffection, hatred or contempt against the President or the government.

Camara stated that the DPP cited Lamin Waa Juwara’s case and harped on the fact that “it was said in case there is no need for extrinsic evidence to prove sedition.”

He adduced that the court is enjoined to look at the dichotomy between Lamin Waa Juwara versus the State.

Counsel submitted that the words used by Lamin Waa Juwara, is completely different from what is in the exhibits: A and B.

Counsel Camara said that in Lamin Waa Juwara’s case, the court elucidated that the circumstances of the publication or utterance, among other matters, are relevant in deciding what the intention of the accused are.

He further argued that on the charges of seditious words the audience addressed and the state of the public feeling are material in the case.

Lawyer Camara further referred the court to R. Aguna and submitted that in the parameters laid down in Lamin Waa Juwara and Mensah’s cases, no evidence have been laid as to the state of the public feelings and the audience addressed.

He submitted that it is a try law that for the offences of sedition as stated in Section 52 of the CPC, there is a requirement for corroboration.

The Defence argued that the prosecution has not laid any evidence to corroborate the material particulars, be it prosecution or defence. He added that in this respect, what is required is not only the crime committed, but there must be proof that the accused persons committed it.

He referred the court to Okon Eko 2002 LRCNCC 15 at pages 17, 18 and 19 (Nigerian Law Report, Volume (3)) at the Supreme Court, on the meaning of corroboration. He submitted that on the status required, there is no independent testimony connecting the accused persons to the offences charged.

Counsel further suggested that in the event of corroboration for conviction, there must be credible, sufficient and satisfactory evidences. He submitted that in order to meet the minimum benchmark, “the authority gives us inconsistency that will do on the prosecution case.” He cited PW1 as saying “I took the statements and there was no agent present at the time of taking the recording.” 

The Counsel described the prosecution’s evidence as doubtful because of the use of the word innuendoes, and thus submitted that the conspiracy theory has not been proven.

He then referred the court to the State versus Andrew Onyea Toulu 2002/3 LRNCC 236, noting that if a crime is charged and the case for the prosecution is doubtful, the benefit of the doubt should be given to the defence. Counsel further submitted that a mere membership is a circumstantial evidence.

In the light of this, he referred the court to Logan and Lerick versus the Republic 2007/8, Ghana Law Report.

He said a mere membership of GPU does not suffice for commissioning the offence charged, as according to him, PW2 and PW3 have testified that every journalist is a member of the union.

The Counsel stated that Section 178 of the CPC is a definition section for libel, adding that it requires additional requirements, such as a proof of intent to defame. He suggested that it is a try law that status are given their literal meaning, and that if status are given their mens rea it cannot be proven.

Camara cited Section 51 of the CPC, which was read together with Section 52.

He submitted that what is stated in Section 51 of the CPC is disjunctive, while count one is conjunctive and count four conjunctive. He noted that count two and three, are all related to Section 52 subsection –1 (C) as amended by the Amendment Act 2005.

According to him, the language is clear that its wording derogate from Section 52 as amended.

Lawyer Camara submitted that the prosecution did not prove their case beyond all reasonable doubt, noting that the onus is on them.

The defense submitted further that the prosecution’s case is based on suspicion and speculation, which he added, is not a proof for a charge. He then referred the court to State versus Squn Otoyenyu, Supreme Court of Nigeria 2005 LRCNCC, page 4 and 5. This, he said, has made significant pronouncement of an onus to prove beyond any reasonable doubt.

Camara further submitted that since the prosecution had failed to prove all the charges against the accused persons, he urged the court to acquit and discharge all the accused persons.