By Yankuba Jallow
The Gambia Court of Appeal has on Monday, 21st December acquitted and discharged 8 soldiers who were convicted of treason. But only three were acquitted and discharged on all the other charges.
They were found guilty by a military court on treason and related offences. They were sentenced accordingly to a maximum jail term of 9 years for planning to overthrow the Government of President Adama Barrow on the 22nd July 2020.
The conviction was appealed through their Lawyer, Sheriff Kumba Jobe alias SK Jobe.
SK Jobe appealed against the court-martial’s decision in which they were all convicted of treason, incitement to mutiny, failure to report mutiny, conspiracy to commit mutiny, endeavouring to persuade members of the Armed Forces to take part in mutiny, negligent or willful interference with lawful custody, connivance of desertion, connivance of desertion and negligent interference with lawful custody.
The court-martial found these soldiers guilty of 5 criminal offences and sentenced them on various prison terms which will run concurrently starting on the date of their arrest. The soldiers were also dismissed from the army by the court-martial with disgrace.
However, the appellate court overturned the majority of the decisions of the court-martial as it acquitted and discharged Captain Yaya Beray Jammeh, Lieutenant Abdoulie Jarju and Lieutenant Yaya Jammeh on all counts for lack of evidence.
The fact of the case has it that in June 2017 a board of inquiry was set-up by the military command to investigate a photo that was published on social media showing a lorry with logs of wood. During the course of investigation, the phone of one of the convicts was confiscated and eventually, a WhatsApp group dubbed ‘Ajamat’ or True Friends was discovered. Further probe led the investigators to the conclusion that the group was plotting a coup against the democratically elected government of President Adama Barrow.
After this, a second and large board of inquiry was constituted to investigate the group and this was when it was discovered that the group stands to overthrow the Gambia Government. The investigators concluded that the intention of the participants of the WhatsApp group was to carry on with their planned coup on the 22nd July 2017, arresting the Chairman of the Independent Electoral Commission (IEC), Lawyer Ousainou Darboe who was at the time the Minister of Foreign Affairs, Mai Ahmed Fatty who was at the time the Minister of Interior, the Chief of Defense Staff Massaneh Kinteh and some other prominent people in the country.
The military investigation board found out that the messages (chats) in the WhatsApp were deleted after the group was discovered. The Board also discovered that the cell phone numbers in the group were registered using third-party names while some of the numbers were not registered. With the help an IT-expert, the Board was able to retrieve their conversations and the audios were transcribed by a person hired to write down the audio messages.
Lawyer Sheriff Kumba Jobe for the convicts/appellants said the court-martial lacked the jurisdiction to try them on the charge of treason in the absence of the written consent by the Attorney General. SK Jobe said section 39 of the Criminal Code makes it mandatory for the written consent of the Attorney General to be obtained without which a court cannot try anyone for the charge of treason. Lawyer Jobe further contended that the trial with respect to the charge of treason infringed the right of the accused persons to fair-hearing as enshrined in the 1997 Constitution.
Principal State Counsel Abdul Maita Yusuf contended that the accused persons were not tried under section 35 of the Criminal Code, but 83 of the Gambia Armed Forces Act. On the written consent of the Attorney General, AM Yusuf said their presence is enough to satisfy the requirement of law on the written consent of the Attorney General. He said the Attorney General was represented by the Director of Public Prosecution (DPP), Principal State Counsel and other State lawyer which is enough to suggest that the AG’s consent was already obtained.
The Justices of the Court of Appeal found the argument of the State/Respondent as misplaced as they held that the consent of the AG has to be written. They also held that the argument by the State that the accused persons were not charged under section 35 of the Criminal Code was untenable considering the facts of the case deduced from the recording of proceeding. The court held that the argument by the State has no basis in law, thus, shaky.
Justice Na-Ceesay Wadda who read the lead judgment said the consent of the AG has to be written which should be served on the defence and the court. In the instance, the Judge said the written consent of the Attorney General was not filed and served on the defence as required by law.
She said Lawyer SK Jobe raised the issue of the lack of the written consent of the Attorney which was erroneously dismissed by the court-martial.
“It is a fundamental requirement for a valid prosecution that section 39 of the Criminal Code [written consent of the AG] must be complied with,” she said.
She added: “The Consent has to be written. It cannot be implied upon the mere presence of officers of the Attorney General’s Office.”
She held that the word ‘shall’ is commanding which is usually given a mandatory meaning.
“It does not give room for maneuvering,” she said.
She said the DPP has his or her constitutional powers which are subjected to the approval of the Attorney General. She upheld the argument by Lawyer SK Jobe that section 39 of the Criminal Code (CC) which is provides for the basis for obtaining a written consent from the AG is a mandatory pre-requisite for the charge of treason under section 35 of the CC.
“The written consent of the Attorney General must be obtained before commencement of trial. The prosecution were under legal duty to file the written consent of the Attorney General and the accused persons ought to have been served with the written consent of the Attorney General,” she said.
She held that the Judge Advocate who, was Justice Amina Saho-Ceesay, misdirected the panelists of the court-martial who eventually overruled SK Jobe who was requesting for the written consent of the Attorney General.
Equally, Justice Na-Ceesay held that the charge sheet was signed by one Captain Alagie Jarju and Major General Yakuba Drammeh, the Deputy Chief of Defense Staff [as he then was].
“In the light of this gleaning fact, how does this show the Attorney General consented to the charge?” the Judge asked.
She declared the trial in respect to the charge of treason a nullity and therefore, void.
“One cannot put something on nothing and expect it to stand. The judgment was a nullity with respect to the charge of treason,” she said.
She said the entire proceeding on this charge was a nullity as she discharged and acquitted all of the accused persons on the charge of treason. She said the court-martial lacked the jurisdiction to try them since the written consent of the Attorney General was not obtained.
“The court-martial has no jurisdiction to try the accused persons under this count [treason],” she held.
In their appeal, the Appellants repudiated the allegation that they wanted to overthrow the Government of the Gambia by operating a social media group chat, on ‘WhatsApp’. They indicated in their appeal that the prosecution did not present any reliable witness to prove that they intended to incite any person to participate with them to overthrow the Government of The Gambia.
The others charges were incitement to mutiny, failure to report mutiny, conspiracy to commit mutiny and endeavouring to persuade members of the Gambia Armed Forces to mutiny.
Captain Yaya Beray Jammeh, Lieutenant Abdoulie Jarju and Lieutenant Yahya Jammeh were all acquitted and discharged by the court while the other accused persons’ convictions were upheld by the appellate court.
Justice Na-Ceesay held that the ‘Ajamat’ group appears to be a friendly group which was created by Sergeant Yusupha Jatta. She said it was clear that the members of the group were unhappy with the change of regime and were mainly Jolas who intended to capture some prominent people in the country.
She said the first accused person, Captain Yaya Jammeh mentioned his phone number while under examination before the court-martial which was never made an issue during cross-examination by the prosecution. She said this evidence remained unchallenged adding the first accused person was consistent in his testimony.
Jammeh said he was arrested on the 22nd July 2017 at the African Union Village in Brufut at around 9 pm by Captain Yusupha Jallow. He testified that he was taken to the National Intelligence Agency (NIA) which he referred to as SIS (State Intelligence Services). Jammeh adduced that he was been forced to say he was inviting some soldiers to his home to discuss their planned coup. He alleged that he was tortured at the NIA during the course of investigation adding there was no independent witness present at the time of making his statement.
The independent witness also testified that he was not present at the time the statement was obtained by stating “I did not witness the original taking of the statements.”
The Court of Appeal held that the court-martial ought not to have relied heavily on Exhibits A because it was unsafe adding the independent witness said he did know what happened to the accused persons at the time of making the statement. She said the lower court should not have attached weight on Jammeh’s witness statement to convict him since it was unreliable.
The appellate court held that the court-martial placed heavy reliance on Dino Sanneh who was a tainted witness. The court found that Sanneh, who was earlier arrested in connection to the coup plot, was released and bribed to testify against the accused persons. The appellate court took cognizant of the fact that Sanneh admitted that he was part of the group.
The Court of Appeal held that the prosecution failed to establish that Captain Jammeh was a member of the ‘Ajamat’ Group because his number was not found in the group.
“There was no evidence in my view showing or suggesting that the first appellant [Captain Yaya Jammeh] was a member of the WhatsApp group. There was no evidence to secure his conviction,” Justice Na-Ceesay held.
She also held that there was no conspiracy on Captain Jammeh’s side because the prosecution hasn’t put forward any evidence to show that he conspired with one or more people in his attempt to overthrow the Government. She acquitted and discharged Captain Jammeh on all the counts.
On the second appellant, Lieutenant Abdoulie Jarju, the Judge said Jarju made allegation of torture while at the NIA which included electrocution. The Court of Appeal held that the cell phone numbers of Jarju were not contained in the prosecution’s exhibits S and T which contained the names and numbers of the participants of the group.
“The Prosecution failed to prove that the second appellant [Lieutenant Jarju] was a member of the ‘Ajamat’Group,” she held.
She said instead of proving that the accused person was a member of the group, the prosecution during cross-examination were focusing on irrelevant things which aren’t important to the charge.
She also pointed out that the independent witness testified before the court-martial that he was not present at the time the statement of Lieutenant Jarju was recorded.
The Judge said the trial court [court-martial] ought to have rejected the document since there was no independent witness present at the time of obtaining the statement. She added that the court-martial should not have relied upon the document to secure the conviction of Jarju.
The appellate court held that there was no conspiracy. Like Captain Jammeh, Lieutenant Jarju was acquitted and discharged by the Court of Appeal on all counts.
On the third appellant, Lieutenant Yaya Jammeh was arrested on the 22nd July 2017 and was asked whether he attended a meeting at the AU village purposely to discuss a planned coup to topple the Government of President Adama Barrow. He testified that he informed the investigators that he went to pay a courtesy call on Captain Yaya Jammeh at his residence. He said the purpose of the visit was not to discuss a coup.
He alleged that the investigators tied his penis and his head being forced into the water among other forms of tortures seeking to get a confession from him. He said on the 26th July 2017 his statement was retaken and the independent witness was brought on the 3rd August 2017 and signed the statement. He said he was tortured by Lieutenant Yusupha Jallow and Captain Alagie Camara.
Like Lieutenant Jarju, Lieutenant Jammeh’s number was not found in the prosecution’s exhibits. There was no proof of his membership to the ‘Ajamat’ Group and on this regard, he was acquitted and discharged by the Court of Appeal.
The appellate court held that the conviction was wrong adding there was no evidence whatsoever to secure the conviction of Lieutenant Jammeh.
The other accused persons were convicted of the charges of incitement to mutiny, failure to report mutiny, conspiracy to commit mutiny and endeavouring to persuade members of the Gambia Armed Forces to mutiny. They were only acquitted and discharged on the charge of treason.
Their conviction according to the appellate court was reasonable and there was evidence to support that. The Judge held that Sergeant Baboucarr Sanneh, Sergeant Malick Bojang, Lance Corporal Abba Badjie and Private Mbemba Camara all admitted that they were members of the ‘Ajamat’ Group.
For their involvement and participation, the appellate held that the court-martial was right in convicting them. Justice Na-Ceesay described some of them as active members of the group whereas one of them was referred to as mastermind.
All the accused persons, except one, gave evidence of torture. Lieutenant Yusupha Jallow was identified by the convicts as their arch torturer.
Justice Roche thank Lawyer SK Jobe for the well formulated issues.
For the purpose of our readers, we will reproduce the grounds of appeal by Lawyer SK Jobe.