By Kemeseng Sanneh (KEXX)
Justice Ebrima Jaiteh of the Banjul High Court has Thursday declared the detention of comedian Alagie Sisawo (alias Alagie Bora) unconstitutional and arbitrary.
The Judge further asked the Gambia Government to pay the social media commentator Five Hundred Thousand Dalasi (D500,000) as cost for his unlawful detention.
Alagie Bora alleged that he was detained from 4 October to 10 October 2023. The talk show host instituted a civil suit against the Inspector General of Police (IGP) and the Attorney General (AG) seeking a court order declaring his detention from 4 October 2023 without being arraigned before any court of law was unlawful and unconstitutional, and amounted to a breach of his fundamental human rights as enshrined in the 1997 Constitution of The Gambia. He also asked the court to pass an order to restrain the IGP from arbitrarily arresting and detaining him without good reason. He further asked the high court to make an order directing the IGP to hand over his iPhone 13 Pro Max. He asked for compensation amounting to Seven Million Dalasi (D7,000,000).
Alagie Bora filed a 49-paragraph affidavit sworn to by himself on 16 October 2023 and attached four (4) pictures of him. The IGP and the AG opposed the application and filed an affidavit in opposition of 26 paragraphs sworn to by Assistant Superintendent of Police Alagie Sanyang dated 30 October 2023. Alagie Bora filed a19 page paragraphs affidavit in reply to by the defedants.
The affidavit filed by the IGP and AG admitted that Bora was detained from 4 October to 10 October, but denied the allegation that he was denied access to his family.
Justice Jaiteh said a person who has committed a criminal offence or is reasonably suspected to have done so, may be arrested to be arraigned in a court of law. The Judge cited section 19 of the 1997 Constitution of the Gambia on the person’s right to liberty. Justice Jaiteh said the IGP and the AG did not oppose the allegation by Alagie Bora that he was detained from 4 October to 20 October 2023. Also, the Judge said there is no evidence before his court that Alagie Bora was charged or arraigned before a court of law.
Jaiteh said it was the responsibility of the IGP and AG to show the court that the arrest and detention of Alagie Bora was justifiable.
“The arrest and detention must conform to the law,” Justice Jaiteh stated.
Jaiteh added: “Every human being has inherent rights that need to be protected. There is from the constitutional provision no room for any arbitrary arrest or detention of any person in The Gambia.”
The Judge noted that the IGP and AG’s affidavit in opposition stated that Alagie Bora was arrested in connection with remarks he made encouraging the illegitimate takeover of governments in Africa using arms at a time when such unfortunate events were rife in the Continent. Therefore, he threatened the peace and security of the country. The IGP and AG said the remark necessitated the police to invite him over to the Kairaba Police Station where a panel investigated the content of his remarks to establish the existence of a criminal element. Justice Jaiteh said the IGP and AG should have provided the court with a copy of the investigative panel’s report and also failed to provide the court with the content of the remarks Alage Bora allegedly made. The Judge dismissed the statement of the IGP and AG regarding the alleged remarks by Alagie Bora. The Judge asked the question why was Alagie Bora not charged if there was any existence of a criminal element in his remark to warrant his prolonged detention beyond 72 hours.
“The power to investigate cannot be exercised indiscriminately,” he said.
He added: “It is inappropriate for the police or law enforcement agents to arrest a person and while in their detention, they now fish around for evidence to prosecute him or her.”
The Judge advised the police or law enforcement officers to think of more genuine ways of getting evidence to prosecute a person accused of committing a crime.
“I therefore reach the conclusion that the Applicant’s detention was unlawful by the 1st Respondent [IGP] and this I shall hold as fact,” the Judge said.
Regarding compensation requested by Alagie Bora of D7,000,000, the Judge said section 19 subsection 6 of the Constitution provides that any person who is unlawfully arrested or detained by a person or authority is entitled to compensation from that person or authority. Justice Jaiteh said awarding compensation to any person unlawfully arrested and detained is mandatory.
“It is settled law that an unlawful arrest and detention, no matter how short entitles the applicant to compensation,” the Judge said.
The Judge pointed out that the IGP and AG admitted that the bail was revoked on 4 October 2023 and he remained in custody until 9 October 2023. Alagie Bora alleged that while under detention, he was provoked and harassed by Inspector Bah,who asked him to remove his shirt and trousers. Alagie Bora said Inspector Bah touched and played with his private part while he was locked in a small room at the Anti-Crime Unit headquarters, Banjulunding. He alleged further that he was later taken to an unknown location and thrown in a dark cell and was not allowed to communicate with anyone as his mobile phone was seized on his third day in detention. Alagie Bora said he was pushed into a pool of dirty water and he exhibited photos of mud water over his shirt and body.
Justice Jaiteh said a person not charged with a criminal offence should not be detained to make him or her suffer indignity as that is not the purpose and intent of the law.
He granted the application of Alagie Bora and declared his arrest and detention as unlawful and unconstitutional, which amounted to a breach of his fundamental rights in the Constitution. The Judge restrained the IGP from arbitrarily arresting and detaining Alagie Bora for no just cause. He also ordered the IGP to return Bora’s phone with immediate effect. The Judge however reduced the cost request from D7,000,000 to Five Hundred Thousand Dalasi (D500,000).
