By Yankuba Jallow
Yankuba Badjie, a former director general of the National Intelligence Agency (NIA) has won two appeal cases against the State before the Gambia Court of Appeal.
In a unanimous judgement of all the three justices of the appeals court, it was held that the high court judge, Justice Kumba Sillah failed to apply the law properly by denying Yankuba Badjie the chance to make a ‘no case to answer’ submission. Also, in their second decision, the court of appeal held that Justice Kumba Sillah-Camara was not right when she denied Yankuba Badjie the chance to call five of the listed prosecution witnesses for cross-examination even though the prosecution did not call them to testify in court.
The five witnesses who were listed by the prosecution, but were not called to testify were Lamin Fatty, ex-director of investigation at NIA, Lamin Ceesay, a member of the NIA investigation team, Sheriff Gassama, the commanding officer intelligence unit of the NIA and Binta Jammeh, one-time working at investigation unit NIA.
Readers would recall that this is the third time Justice Kumba Sillah-Camara has been overruled by the Gambia Court of Appeal in the NIA 9 case. She is the presiding judge in the NIA 9 Case and has given three rulings which did not go down well with Yankuba Badjie. In this respect, he challenged all the three rulings and succeeded in all of them.
Justice Basiru V.P. Mahoney delivered the judgement in both appeals while Justices Cecilia Roche and O.M.M Njie both supported the decision.
The case dealing with the “no case to answer” submission and the one dealing with the recall of the listed prosecution witnesses were consolidated.
On the first judgement, which regards the high court’s refusal to allow Yankuba Badjie to call five of the listed prosecution witnesses for cross-examination, the prosecution contended that they are at liberty to call any witnesses to testify in their case or refuse to bring any witnesses where their testimony is not needed. Lawyer Christopher E. Mene for Badjie referred the court to several judicial authorities including case laws and statutes in support of his argument that the prosecution are under obligation to bring in the said 5 witnesses for cross-examination. Lawyer Mene said in the interest of justice and fair-hearing, the 5 witnesses should be recalled to enable the Defence have an opportunity to cross-examine them.
In his lead judgement, Justice Mahoney said the Criminal Procedure Code (CPC) regulates the procedure of criminal cases in The Gambia. He mentioned that part 7 of the Code provides for the High Court rules.
The Judge stressed that it is the duty of the prosecution to give the Defence all necessary materials to prepare for their defence as he relied on section 24 of the 1997 Constitution.
“The prosecution disclosure is a requirement for fair-chairing,” Mahoney said.
He said the prosecution has discretion to call witnesses, but it has to be exercised to further fair-hearing.
He relied on several case laws and other judicial authorities to hold that all the witnesses whose names are written at the back of the indictment should be called.
Mahoney said the prosecution is under obligation to put the witnesses in the box for cross-examination by the Defence. He maintained that this corresponds with the constitutional provision of fair-hearing.
Justice Mahoney said the prosecution has no good reason to refuse the Defence’s request.
He said the high Banjul High Court judge was wrong when she held that the listed witnesses could be called as Defence witnesses and not prosecution witnesses. Justice Mahoney said the prosecution has obligation to call the five witnesses. He resolved the issue in favour of Yankuba Badjie.
On the issue of the “no case to answer’ submission which the high court judge refused, Justice Mahoney said the trial judge was not right when she did that.
Mahoney said the high court judge has a statutory duty to hear and determine the “no case to answer” submission and ought not to have denied Yankuba Badjie the chance to make the submission.
He said Badjie withdrew his initial plan to make a no case to answer submission.
“It was not heard on its merit. It was withdrawn,” Mahoney said.
He said this shouldn’t be used as bar to stop Yankuba Badjie from making a “no case to answer” submission.
He held that Yankuba Badjie can still make the “no case to answer” submission.
He resolved the issue in favour of Yankuba Badjie.
Justice O.M.M Njie in his supporting judgement held that there is an obligation placed on the prosecution to bring vital witnesses needed by the Defence.
He overruled Justice Kumba Sillah’s decision that it is up to the Defence to call the witnesses as Defence witnesses merely because the prosecution had provided their contact details. He also overruled the prosecution’s argument that they have no obligation to call witnesses relying on what they refer to as “discretion”.
He emphasized that the witnesses the Defence sought to Cross-examine are prosecution witnesses and not Defence witnesses. Njie stressed that the prosecution had not put forward any good reasons to warrant the refusal of the Defence’s request to cross-examine five of the listed prosecution witnesses.
Justice Njie said all the five witnesses are employees of the NIA and their testimony would help the high court to arrive at a just determination. Finally, he said the high court in the interest of justice should hear from all vital witnesses in the case.
Justice Haddy Cecilia Roche said it will not be right to deny the Defence the chance to call the five witnesses for cross-examination.
She took her time to address the prosecution saying they should regard themselves as agents of justice.
“There is an obligation on the prosecution to make full disclosure. The prosecution should not be interested in conviction at all cost,” Justice Roche said.
She held the prosecution is under obligation to bring all witnesses who may either testify in their favour or against them in an attempt to help the court to arrive at a just determination.
She held that the case the prosecution relied upon has different facts with the current case.
She resolved all issues relating to the “no case to answer” submission and the recall of the 5 listed prosecution witnesses in favour of Yankuba Badjie.
Now, the high court judge will hear the “no case to answer” submission and will have to order the prosecution to bring the listed witnesses.
Badjie in the previous hearing won an appeal case against the State regarding the Banjul High Court Judge, Justice Kumba Sillah’s decision staying the NIA 9 trial pending the hearing and determination of the appeal cases before the Gambia Court of Appeal. The Court of Appeal in that case held that Justice Kumba Sillah’s decision of staying the case was unreasonable, unjustifiable and a violation of the constitutional rights of the other accused persons in the NIA 9 case. The appeals court overruled Justice Kumba Sillah’s decision and ordered her to proceed with the case. The case is now going speedily – already 2 Defence witnesses have testified.