By Louise Jobe
The Drug Law Enforcement Agency of the Gambia (DLEAG) also known as drug squad has lost two cocaine cases in a row before the Brikama Magistrate’s Court against people found in possession of cocaine. These two people were allegedly caught at the Banjul International Airport with cocaine.
The courts are responsible for interpreting the law. They have provided guidelines for securing a conviction for a charge of aggravated drug trafficking. The drug squad is still losing cases because they failed to adhere to judicial guidelines.
Section 43A (1) of the Drug Control (Amendment) Act 2011 provides that “A person who is found in possession of more than two hundred and fifty grams (250g) of cocaine or heroin commits the offence…”
The drug squad has not been following the advice of the court and continues to lose cases. The cases the drug squad is losing are matters that people don’t expect them to lose.
These are cases which the accused persons pleaded guilty before the court. Yet, the drug squad failed to succeed in proving the crimes against them. Laboratory test results would be provided to the court that the substance found with the accused persons was cocaine, a prohibited drug in the Gambia. The accused persons also would confirm that the substance is actually cocaine before the courts. Yet, they won’t succeed in securing a conviction against the accused persons. They are losing c because of a simple thing and yet, they are not changing their ways.
This report will look at the failure and the guidelines the court provides in proving aggravated drug trafficking.
It is becoming an interesting reality that the narcotic officers have done a wonderful job at the Banjul International Airport by arresting people with cocaine, but would end up losing the cases in court.
One would expect that it is an easy task for any prosecutor to prove the guilt of an accused person who pleads guilty before the court to a crime. The Gambia legal system has a cardinal principle that the mere admission of an accused person is not sufficient to secure a conviction. The Constitution of the Gambia makes provision for the presumption of innocence. The courts would require the prosecution to prove the case beyond reasonable doubt. Magistrate Fatou Darboe-Jaguraga stated that proof beyond a reasonable doubt means proof of a crime with the certainty of criminal law and that the accused person committed the offence and the evidence has discharged the ingredients to sustain that charge.
“Where the evidence conclusively establishes these two facts, the case is said to be proven beyond reasonable doubt,” she said.
In simple terms, what the Magistrate is trying to explain is that the prosecution must prove that the accused person committed the offence and then prove the elements (ingredients) of the crime.
In law, each crime has elements and the prosecution must prove those elements to succeed in proving that crime. This is where the Drug Law Enforcement Agency has been failing.
“It goes without saying that proof of one ingredient without the other will amount to making an easy way for the prosecution to abandon its constitutional duty of proof beyond reasonable doubt,” the Magistrate said.
If an accused person pleads guilty, the courts would call on the prosecution to narrate the facts and provide the evidence, and then the accused person would be asked to react to the facts present.
Case 1 relates to Lamin Keita, a Gambian, and the second case relates to Abdourahim Diallo, a Senegalese.
Lamin Keita was arraigned before the court on the charge of ‘aggravated drug trafficking’ contrary to section 43A (1) of the Drug Controls (Amendment) Act 2011. The prosecution (DLEAG) alleged that Lamin Keita on or about 11 June 2024 at Banjul International Airport had in his possession 5 kilograms of cocaine, a prohibited drug.
Keita pleaded guilty before the court when the charge was read to him. The prosecution provided 4 blocks of cocaine, the 24-hour daily report dated 11 June 2024, the voluntary and cautionary statements dated 6 June 2024 of Keita, the weighment certificate dated 13 June 2024, the analytical report dated 12 June 2024, and the Gambian passport and Italian residential permit bearing the name and picture of Keita.
The Magistrate held that the evidence of brief facts as narrated by the prosecution and the exhibits tendered were not sufficient.
She said the prosecution is required to prove 3 essential things to succeed in proving the charge of aggravated drug trafficking. The first thought is that the alleged substance found is a prohibited drug. Secondly, the accused person was found in possession of the said alleged substance. Finally, the quantity of the said alleged substance is 250g or more.
She held that the prosecution succeeded in proving that the alleged substance was cocaine through the analytical report. She noted that cocaine is a prohibited drug under section 2 of the Drug Controls Amendment Act.
She further held that the issue of whether the accused person was found in possession of the said alleged substance is not disputed. She stated that there is evidence that the accused person was found in possession of the cocaine.
The next issue to be looked at is the actual weight of the cocaine. The Magistrate said the evidence before the court is the gross weight indicated 5 kg while the Columb for the net weight was left blank. She held that the net weight was measured and therefore, the actual weight was not known. She stated that the evidence before the court was the weight of the cocaine together with the container.
“Procedure germane and due diligence would require the DLEAG to properly weigh the substance. This failure on the part of the DLEAG to provide the net weight of each of the substances is a failure on their part and ill-professional at most. Such failure creates a doubt in the mind of the court as to the actual weight of the substance along and not with its container,” she held.
She highlighted that gross weight simply means the total weight of goods, including the raw product, any packaging, and possibly the vessel transporting the goods. Net weight is simply the raw weight of the product only excluding any packaging.
After declaring that the prosecution failed to provide the charge against the accused person, the court used its wisdom to convict the accused person on a lesser offence relying on section 151 of the Criminal Procedure Code. This provision empowers the courts to convict an accused person on another charge provided evidence supports it. She convicted Lamin Keita on a lesser offence, which was ‘possession of a drug for trafficking’.
In another case, Abdourahim Diallo, a Senegalese was convicted of ‘Possession of prohibited drugs for drug trafficking’ and was sentenced to pay One Million and Five Hundred Thousand Dalasi (D1,500,000) in default to serve a 10-year jail term.
Diallo escaped the full charge as he was convicted of a lesser offence.
Diallo was charged with ‘aggravated drug trafficking’ contrary to Section 43 A (1) of the Drug Controls (Amendment) Act 2011. The prosecution alleged that Abdourahim Diallo on or about 1 June 2024 at the Banjul International Airport had 2 kilogrammes and 400 grammes of Cocaine. Cocaine is a prohibited drug in the Gambia. Diallo admitted the charge and pleaded guilty.
He was arraigned before Magistrate Fatou Darboe-Jaguraga of the Brikama Magistrate’s Court.
The Magistrate requested the prosecution to narrate the facts and tender documents and the alleged cocaine. The prosecution tendered the voluntary and cautionary statements of Abdourahim Diallo both dated 6 June 2024. Also, tendered the ‘24 hour daily report’ dated 6 June 2024, the ‘weighment certificate’ dated 3 June 2024, and the ‘analytical report’ dated 6 June 2024. The prosecution further tendered a Senegalese Passport bearing the picture and the name of Abdourahim Diallo. 4 black socks each containing 30 pellets of the said cocaine – a total of 120 pellets and 3 small blocks said to be cocaine were tendered. The court admitted the materials in evidence and marked them as exhibits.
“The court holds that the evidence before the court has not sustained the charges,” Magistrate Darboe said.
She stated that the prosecution has three ingredients to prove to sustain the charge of aggravated drug trafficking. Firstly, the alleged substance found is a prohibited drug. Secondly, the accused person was found in possession of the said alleged substance. Finally, the quantity of the said substance is 250 grams or more.
The Magistrate said the issue of whether the accused person was found in possession of the said alleged substance is not disputed. She added that the Court has to assess whether the quantity of the alleged drug is 250g or more. She held that section 43A (1) of the Drug Controls Act stipulates that if the substance said to be cocaine weighs 250g or more then the person with whom it was found in his possession, shall be guilty of aggravated drug trafficking.
The court looked at the weighment certificate and declared that the prosecution failed to prove the offence they charged Diallo with.
The Magistrate observed that the Column for gross weight indicated 2 kg 400g and the column for the net weight was left blank.
“This shows with certainty that the net weight of Exhibit AD 1-5 [cocaine] was not weight and thus, the actual weight is not known,” she said.
She maintained that the weighment certificate showed that the ‘120 pills and the ‘3 blocks’ of the suspected cocaine were listed in separate rows. Only one (1) gross weight was listed.
“This shows that the entire drug together with its container was weighed,” the Magistrate stated.
She held that the procedure germane and due diligence would require the Drug Law Enforcement Agency of the Gambia (DLEAG) to properly weigh the substance.
“The failure on the part of the DLEAG to provide the net weight of each of the substances is a failure on their part and ill-professional at most. Such failure creates a doubt in the mind of the Court as to the actual weight of the substance alone and not with its container,” she said.
She pointed out that 2kg 400g of Cocaine as contained in the charge was the gross weight as indicated in the weighment certificate. She held that the net weight of the substance is very crucial in order for the court to determine the actual crime committed by the accused person. She maintained that the weighment certificate does not contain that information.
The Magistrate relied on section 151 of the Criminal Procedure Code (CPC), which empowers the court to convict an accused person when the prosecution fails to prove the charge. She convicted Abdourahim Diallo on ‘Possession of prohibited drugs for drug trafficking.’ This is a lesser offence compared to the charge against him. He escaped that charge despite pleading guilty. The simple reason was that the actual weight of the substance (cocaine) was not stated in the weighment certificate. The prosecution only stated the gross weight. The Magistrate said the court needs to establish the actual weight of the cocaine as it is very crucial in the case.
