By Kemeseng Sanneh (Kexx)
Senior Lawyer Bory S. Touray for Ebrima Dibba has made a “no case submission” as he asked the court to free the political commentator because the prosecution failed to prove the charge against him.
Commissioner Abdoulie Sanneh and two other police officers appeared for Inspector General of Police. Senior Counsel B.S Touray and Counsel Ya Kumba Jaiteh represented Ebrima Dibba.
“May I submit straight away that the prosecution has failed to make a prima facie case to warrant the accused to enter his defence in this trial,” Lawyer Touray said.
He used two lines of argument to support his case. One was the lack of fiat from the Attorney General and the other was based on the prosecution’s evidence before the court.
Lawyer Touray said section 53 subsection 2 of the Criminal Code provides that a “fiat” must be obtained from the Attorney General before a case of sedition is commenced.
“I submit straight away that the prosecution has failed to comply with this provision of the Criminal Code,” he said.
Lawyer Touray said the law requires the authority to come from the Attorney General, but the document filed before the court was headed ‘consent to prosecute’ and was issued by the Solicitor General and Legal Secretary, Hussien Thomas.
“From this, I submit that the document or fiat is not in compliance with Section 53 sub 2 of the Criminal Code. Section 53 sub 2 refers to only the office of the Attorney General. There is no part of that provision which makes the Attorney General delegate this function, and it is the rule of construction that an expressed mention of one of the species excludes all others,” Touray said.
Lawyer Touray relied on the case of Lansanna and 11 others versus The Regina reported in African Law Report Sierra Leone Series 1977.
He submitted that the procedure the prosecution followed fell short of section 53 sub 2 of the Criminal Code.
“I submit that the Accused, Ebrima Dibba, be acquitted and discharged by the court,” he said.
Lawyer Touray said the second line of approach is that the evidence submitted by the prosecution has not linked the accused to the offence charged.
“It is my submission that the two witnesses presented by the prosecution, especially PW1, did not give any evidence linking the accused herein to the making and circulation of the purported audio,” he said.
“No evidence has been placed by the prosecution before this court to the effect that this audio, which came into the WhatsApp platform, was generated from the telephone number of the Accused Person. No evidence was placed before this court from the cellular company confirming that the subscriber of that number is the Accused person. No evidence is given to this court on the identity of the voice in question in this audio. PW1 confirmed that he has never interacted with the accused and did not know him from Adam, and he equally confirmed that he has no training in voice identification. So therefore, he is completely bereft of any opportunity to identify the owner of the voice in the said audio, and I, therefore, submit that with the absence of the identity of the maker of the audio, the prosecution failed to establish the necessary nexus between the accused and the said audio,” Lawyer Touray said.
Touray said the transcriber has told this court that she does not understand the Mandinka language and she gave evidence that she did the transcription and said was processed by one Huma but the prosecution was short in that MR Huma’s ability to understand Mandinka so no evidence was placed before the court on the competence of Mr Huma in doing this transcription.
“I urge HIs Worship to take notice that court interpreters in this jurisdiction are not trained in all the various languages. Some will tell you I cannot interpret Mandinka, Jola, Fulla, etc. I submit that this cannot be treated with levity.
“I, therefore, urge His Lordship not to attach any weight to the transcription not only on lack of competence of the personnel on the transcription but also on the failure of the transcriber on the failure to attach a certificate to it. And also, on the additional failure of the transcriber not to have notarized the said document by the notary public,” he said.
Touray said what is left before the court is the audio, which is in Mandinka and the language of the court is English.
He called on the court to acquit and discharge Ebrima Dibba.
Commissioner Abdoulie Sanneh opposed the no case submission. He relied on Section 167 of the Criminal Procedure Code that the accused has a case to answer because a prima facie case has already been established and will approach the reply on two aspects.
On the issue of the “fiat”, he said the fiat was served on the defence and it was signed by the Solicitor General and Legal Secretary dated 3 June 2024 with the heading ‘Consent to Prosecute’. He explained that the Solicitor General is under the office of the Attorney General.
“So the submission made by the defence counsel is baseless and a misconception. We urge the court to disregard and dismiss and allow the accused to enter his defence,” Commissioner Sanneh said.
In dealing with the substantive case, Commissioner Sanneh said the defence lawyer was wrong to say that prosecution called two witnesses. He added that the prosecution called three witnesses tendered a flash drive containing audio, presented a certificate in support of the flash drive, and tendered a transcription of that audio in conformity with section 22 sub 2 of the Evidence Act.
Sanneh said the second prosecution witness is an investigating police officer, who, in his testimony, without ambiguity, made it clear to the court that he had interacted with Ebrima Dibba and the accused confessed that he made the audio.
“This is why counsel did not make reference to PW2 but relied on that of PW1. The issue of the audio is for the court to determine whether what was said therein is an offence. We, as the prosecution, submit that the wording of the accused in the audio is an offence contrary to Section 52 of the criminal code,” he said.
Commissioner Sanneh referred the court to the transcription by Haddy Jagne, which was in court.
“The accused said the president is clueless, ignorant, and knows nothing. With these wordings, we submit that the accused has committed an offence which warrants him to enter a defence,” Commissioner Sanneh said.
He stated that the interpreter wrote what was said in the audio.
“Last but not least, the evidence of PW2 established the element of this offence, which requires the Accused to explain the genesis of the audio,” he said.
He urged the court to disregard the submissions of Counsel Touray.
The case was adjourned to Friday, 25 October 2024 for a ruling to be made on the “no case submission” at 10 am.
