By Kemeseng Sanneh (Kexx)
The Gambia Armed Forces (GAF) has still not complied with the court order to reinstate former Corporal Omar Sajor, who was unlawfully dismissed by the army on the claim that he was enlisted with someone’s documents.
He was the man who was referred to as the son of Cassamance MFDC leader, Salifu Sadio by members of the public. This allegation was refuted by Salifu Sadio in a press conference he organised in Senegal. The army alleged that Omar Sarjo is not a Gambian, and used someone’s papers to get enrolled in the army.
Ebrima G. Sankareh, the spokesperson of the Government, also made a public announcement that Omar Sarjo is not a Gambian. His statement was dismissed by the Banjul Magistrate’s Court, which held that Omar Sarjo is a Gambian.
It is over one thousand and two days since the decision was passed by the High Court, and the army has still not adhered to the decision of the Court. The army did not appeal the decision as per our findings. Omar Sarjo has still not been reinstated into the army.
This case brings the Government of The Gambia into the limelight in terms of compliance with court orders. The Gambia Government and the army have still not complied with the court order declaring the dismissal of Omar Sarjo unlawful.
Omar Sarjo was dismissed from the army on 8 March 2018 on the basis that he used someone’s papers to enlist in the Gambia Armed Forces.
He was arraigned before the Banjul Magistrate’s Court for attempting to obtain a Gambian Passport by false declaration contrary to sections 31 and 32 of the Immigration Act. At the end of the trial, he was acquitted and discharged from the court by a judgment dated 31 March 2022.
His lawyer instituted an action against the Gambia Armed Forces for his reinstatement dated 26 January 2021. The High Court made a declaration that his dismissal was null and void and of no effect. The decision of the High Court was delivered on 18 November 2021.
On 2 December 2020, Captain Abdoulie K. Conteh wrote a letter addressed to Omar Sarjo’s lawyer on behalf of the Chief of Defence Staff of the Gambia Armed Forces. The army claimed that due process of the law was followed against Omar Sarjo on grounds of committing serious offences. Captain Conteh said a series of investigations were conducted before his dismissal by GAF and the National Intelligence Agency (NIA) regarding allegations of prohibited conduct. One of the allegations included willfully making false entries in an official document, which constitutes conduct prejudicial to good order and discipline contrary to section 78 of the Gambia Armed Forces Act. The army claimed that Omar Sarjo admitted to using someone’s school certificate to secure a job with the GAF.
Captain Conteh said the power to hire and fire members of the GAF lies within the GAF Command and that no one or authority can compel them to reinstate or retain the service of an unwanted person. Captain Conteh referred to Omar Sarjo as a fraudster.
“The armed forces is a lethal institution; it cannot be seen harbouring delinquents, fraudsters or criminals,” Captain Conteh stated.
He refused Lawyer Baboucar A.M.O. Badjie’s request to reinstate Omar Sarjo based on the allegations. Captain Conteh, who is also a lawyer, stated that the appropriate punishment for Omar Sarjo was 5 years imprisonment and dismissal with disgrace. He added that the army considered his 13 years of service and decided to dismiss him. He warned that if Omar Sarjo continues to make claims the army will re-arrest him and hand him over to the police.
An internal legal opinion on the illegal dismissal of Omar Sarjo of the Gambia Armed Forces was obtained. The army said Omar Sarjo’s real name was SaikouSanneh and he used his brother’s name to enroll into the army. The army noted that the prosecution failed to provide evidence before the court to substantiate the allegation that Omar Sarjo used his brother’s name to enrol in the army. The army also noted that there was no evidence provided in court to support the charge of false declaration.
“The totality of the evidence of the prosecution did not indicate any false representation made by the accused to renew his passport,” the army’s internal memo stated.
The army stated in their legal opinion that “a careful study of the case reveals that while both judgements appeared to be made on merit, the one made at the Magistrate’s Court appears unshakable.”
The army indicated that the Gambia Police Force did not diligently prosecute Omar Sarjo.
The law that Omar Sarjo’s lawyer relied on was Section 33 of the Gambia Armed Forces (GAF) Act. It provides that: “Where a person has made such declaration on his or her attestation as may be prescribed and has thereafter received pay as a soldier- The validity of his or her enlistment shall not be called in question on the grounds of any error or omission in his or her attestation paper; After the expiration of a period of 3 months from the date on which he or she made the declaration, he or she shall be deemed to be validly enlisted notwithstanding any noncompliance with the requirements of this act or any regulations made there under as to enlistment or attestation or any other ground whatsoever (not being an error or omission in his or her attestation paper) to be a soldier until his or her discharge.”
The army’s legal analysis was that the Attorney General’s Chambers, despite being served with Omar Sarjo’s brief of arguments, failed to file a brief in response to help the judge arrive at an informed decision. Consequently, the state has to contend with the judgement which was in favour of Sarjo.
“Therefore, it would be correct to state that the State was not diligent in defending the matter. This might be due to the busy schedules of State lawyers and being overloaded with lots of assignments,” the memo indicated.
The opinion of the army was that the Attorney General should challenge the high court decision despite noting in their analysis that they were out of time. At the end of the legal analysis, it was held that without an appeal, the army should comply with the high court order.
Foroyaa wrote a letter to the Gambia Armed dated 27 June 2024 requesting information regarding the status of the case. The army provided verbal communication to Foroyaa that they were waiting for a legal opinion from the Ministry of Justice. The person who conveyed the information said it was the official position of the army regarding the matter.
Foroyaa wrote to the Ministry of Justice on the same day requesting information regarding the same matter. The Ministry did not respond to the letter. Insiders at the Ministry informed Foroyaa that the army was served with the legal opinion a long time ago. They would not give the details. All of them said the army was wrong to say they are still waiting for the legal opinion from the Attorney General’s Chambers. A source in the Ministry, who spoke on condition of anonymity, said the legal opinion was that Omar Sarjo should be reinstated.
The Gambian Constitution provides under section 120 subsection4 that, “The Government and all departments and agencies of the Government shall according such assistance to the courts as the courts may require to protect their independence, dignity and effectiveness.”
Legal experts interviewed by Foroyaa all indicated that court judgements cannot be stopped from being enforced by the Government. Instead, it can be stopped by another court of higher authority. In the matter of Omar Sarjo, who was unceremoniously dismissed from the Gambia Armed Forces, the lawyers said in the absence of an appeal or a court decision that varies the high court decision, the army is obliged to adhere to the decision.
