By Kemeseng Sanneh
Many are wondering why Justice Basiru V.P. Mahoney freed all the accused persons and only convicted the ringleader, this story has answers to your question as it seeks to explain the judgment.
In the early hours of 20 December 2022, the Gambia was greeted with a foiled coup attempt announced by the Gambia Government. On 29 December, the Gambia Government organised a press briefing informing the public of a foiled coup attempt and said they have apprehended the people involved. In January 2023, a case of treason, inciting mutiny and concealment of treason was filed by the State (prosecution) against five (5) junior soldiers and a policeman with allegation they had prepared or endeavoured to overthrow the Government of The Gambia by unlawful means.
The accused persons were (Lance Corporal) SannaFadera, (Sergeant) GibrilDarboe, (Corporal) EbrimaSannoh, (Corporal) Omar Njie, and (Sub-Inspector) FabakaryJawara – the only policeman in this trial. The charges were two counts of treason, two counts of concealment of treason and incitement to mutiny. All the Accused Persons pleaded not guilty to the charges and the State (Prosecution) was called upon to prove their case.
Justice Mahoney said the criminal offences of treason and concealment of treason are serious in nature which attracts the most severe punishments, particularly death in certain circumstances and life imprisonment in other circumstances.
After calling eight witnesses, the prosecutions closed their case and each of the accused persons gave evidence in defence. At the closure of the prosecution’s case, Corporal Omar Njie made a ‘no case submission’ and succeeded as he was acquitted and discharged by the court.
The Prosecution filed written brief on 9 August 2023, arguing that they have proven their case beyond reasonable doubt to enable the court to convict and sentence the accused persons.
The Prosecution submitted that they had proved that the Accused Persons prepared and endeavoured to overthrow the Government of The Gambia. They argued that the evidence is corroborated by other witnesses, the telephone printouts and the operational plan. They also argued that similarly, the counts of concealment of treason have been proved.
Counsel for Sanna Fadera and FabakaryTrawally filed their brief on 12 September 2023. They also argued on the issue of whether the Prosecution has proven their case beyond reasonable doubt.
They referred to the evidence of PW1 (Corporal Barra Touray) arguing that his evidence was contradictory and that although PW2 (YayaManjang) corroborated the evidence of Barra Touray, none of the witnesses corroborated each other. And further that conspiracy having not been proved, both the substantive offence in Count 1 and the conspiracy in Count 2 were bound to fail.
Counsel for Gibril Darboe filed his brief on 11 September 2023 in which he argued that the testimonies of the prosecution witnesses were based on hearsay to the extent that no reasonable court could convict on it. Counsel’s main argument was that the Prosecution had failed to prove the offences beyond reasonable doubt.
Counsel for Ebrima Sannoh filed his brief on 14 September 2023 in which he argued two issues. One was whether the elements of the offences have been proven beyond reasonable doubt and whether the State has discharged the burden of proof. Counsel argued that Ebrima Sannoh’s telephone number did not appear on the telephone printout of the 1st Accused (SannaFadera) which debunks the prosecution’s case that he communicated with Sanna Fadera. Counsel also argued that the witnesses who mentioned Ebrima Sannoh never properly identified him and that the standard and burden of proof had not been discharged.
Justice Mahoney said that based on the law and facts of the case and the addresses of Counsels, the issue to be determined is whether the Prosecution has proved the offences in the counts beyond reasonable doubt based on the evidence and the law.
The Judge mentioned that Section 38 of the Criminal Code provides that a person charged under sections 35 (Treason), 36 (Concealment of Treason) or 37 (Spying) of the Criminal Code shall not be convicted on the uncorroborated testimony of one witness.
“It is therefore imperative that in proving the commission of the offences beyond reasonable doubt, that there is corroborative evidence to support the primary evidence for each of the offences under Section 35 and 36 of the Criminal Code.”
Section 179 of the Evidence Act defines corroboration as follows: “Corroboration consists of independent evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the offence, claim or defence.”
Justice Mahoney relied on the decision in Lang TombongTamba vs The State & the decision in Sarjo Fofana vs The State, Criminal to say “the corroborating evidence must be independent” and “the corroborating evidence must confirm or support in some material particular the evidence to be corroborated.”
TESTIMONIES OF ACCOMPLICES
The Judge held that most of the prosecution witnesses were accomplices to the case. On the applicability of the testimony of an accomplice, Justice Mahoney said while it is clear that an accomplice is a competent witness, it may be dangerous to act on such evidence alone as the evidence of an accomplice might have its purpose to serve.
“I am of the view that an accomplice is a tainted witness. The evidence is admissible, but must be treated with caution,” he said.
He said an accomplice is generally a partner of the accused person in the commission of the crime with which the accused is charged. He explained that prosecuting authorities often have to resort to the use of accomplices as witnesses in situations where it would be otherwise difficult to prove the case.
“Under the Evidence Act therefore, once a witness is determined/ identified as an accomplice the court should not convict the accused on the uncorroborated evidence of that accomplice. Unless it warns itself on the record that it recognises the danger of doing so,” Mahoney said.
Justice Mahoney stated that one accomplice cannot corroborate another accomplice.
“It does not matter how many witnesses the prosecution calls, if they are all accomplices they cannot corroborate each other,” Mahoney said.
Identifying the Accomplices
Prosecution Witness One, Barra Touray, testified that he was told by the 1st Accused Person (SannaFadera) that he wanted to overthrow the Government and in subsequent conversations with Fadera he asked for the operational plan. Touray said he was informed of the 18 December 2022 meeting and that the meeting was successful. He was arrested in connection with the alleged coup, charged and the charges were later dropped. He was then placed in protective custody until he testified. He confirmed that initially, he told the police he didn’t know anything about the coup plot, he wrote two to three statements – the last one two days before he was discharged.
“On these facts, it is glaring that PW1 (Barry Touray) was an accomplice. He had knowledge of the alleged coup and did nothing about it. He was an accessory before the fact in that he aided and abetted the principal – the 1st Accused (SannaFadera) to commit the alleged offence,” Mahoney said.
Justice Mahoney said Barra Touray’s admissions that he initially did not cooperate with the investigation and wrote two or three statements coupled with the fact that he was placed under protective custody; raises alarm bells as to his credibility and the risk of his evidence having its purpose to serve being a tainted witness.
“His evidence must be treated with the utmost caution,” Mahoney said.
Prosecution Witness 2, Yaya Manjang, said he was approached by Mustapha Jabbi and the 5th Accused (FabakaryJawara) about the latter’s nephew (SannaFadera) wanting to make a coup d’état. He told them what charity to give out, and referred them to a marabout in Mauritania.
“He also knew about the alleged coup and did nothing about it. He aided and abetted the principal to commit the alleged offence. He also was arrested, detained and released over a period of several days. On the facts, he is also an accomplice,” Mahoney said.
Prosecution witness 3, Captain Mamat Jobe, said he was informed by 1 Accused (SannaFadera) of his intention to overthrow the Government. He was shown an operational plan. He said he was on study leave and would not do anything to hamper it. He said it was the following day after 1st Accused told him of the alleged coup that he reported to Major Lamin Njie. From there, he kept on pursuing his superiors about the alleged coup resulting in the meeting of Majors Lamin Njie and Alagie Njie and the military intelligence officer when they called the 1st Accused. Subsequently, he and his superiors reported to Defence Headquarters and ultimately when he ran out of patience, he reported to the State Intelligence Services.
“On the facts, although Mamat Jobe knew about the alleged coup, and may have abetted the principal, his intention was to foil the coup and thus lacked the mensrea for the offences. He is not an accomplice,” Mahoney said.
Prosecution witness 4, Mustapha Jabbi, often referred to as the driver, said he was introduced to 1st Accused (SannaFadera) by the 5th Accused (FabakaryJawara) as the person wanting to overthrow the Government. He said he took Sanna Fadera to wash in the bush: he took Fabakary Jawara to marabout for Sanna Fadera, he contacted his uncle to help with the marabout in Mauritania and he drove the accused persons to Kafuta for a meeting.
“He was involved in the alleged coup, he aided and abetted the principal and did not do anything about the alleged coup. He was arrested, detained, charged and later discharged. He initially denied involvement during investigations with the police. He was put under protective custody. On the facts Mustapha Jabbi is an accomplice,” Mahoney said.
Prosecution witnesses 5 and 6 are police officers involved with the investigation. Prosecution witness 7, Karamo Jatta, a soldier said he met the 1st Accused (SannaFadera) in Farafenni where the latter told him about the coup being ready. That he had 200 jujus and asked him to mobilise men. He was shown the operational plan and took photos of it. On 18 December 2022 he joined the Accused persons (excluding Fabakary Jawara) at the alleged meeting in Kafuta and witnessed the details of the alleged planned coup. He, however, said he wasn’t going to be a part of it. He said he reported it to the higher authorities on 12 December 2022.
“There is ample evidence that he was part and parcel of the alleged coup. The only issue is his intention. But, what evidence is there that he reported the issue to higher authorities and which higher authorities?” Mahoney asked.
Mahoney said the police witnesse (PW6) in the case said he came across Karamo Jatta’s name when he was analysing the call logs. PW6 said Karamo Jatta was invited and interviewed and his telephone was recovered which contained audio conversations, photos and documents including the operational plan.
“Based on the facts, it can only be concluded that PW7 is an assumed accomplice,” Justice Mahoney said.
Prosecution Witness 8, a military intelligence officer (name withheld), from the facts of the case, Justice Mahoney said cannot be regarded as an accomplice just as the case of Mamat Jobe.
Evaluation of the Evidence
Section 35 of the Criminal Code makes provision for the offence of treason. The law further provides that where a person commits treason he or she shall, on conviction, be sentenced to death.
Justice Mahoney said the elements of the offence of treason are: (a) that there was a preparation or endeavour; (b) that the preparation or endeavour was to overthrow the Government of The Gambia; (c) that the preparation or endeavour was by unlawful means; and (d) that the preparation or endeavour was done by the accused persons.
The elements of the offence of conspiracy to overthrow the Government are: (a) that there was an agreement by two or more persons to prosecute a common purpose; (b) that the common purpose was the unlawful overthrowing of the Government; (c) that the persons commenced or joined the prosecution of the common purpose; and (d) the agreement was by the accused person and others.
“From the position of the law on accomplices set out above, it is apparent that I must exercise great caution in relying on and giving weight to the evidence of PWI and PW2. I also must state that I did not find their testimonies very convincing and their demeanour also did not call for them to be held in high esteem. I shall not give much weight to their evidence,” Justice Mahoney said.
“All this evidence put together leaves me with no doubt that the 1st Accused (SannaFadera) organised and attended the meeting in Kafuta to prepare for the overthrow of the Government of The Gambia,” Mahoney said.
He said the evidence against 2nd Accused (GibrilDarboe) in respect of the offence of treason is only available from PW4 (Mustapha Jabbi), the driver who gave evidence of driving Sanna Fadera, EbrimaSannoh and Karamo Jatta to GibrilaDarboe’s Compound in Kafuta where a meeting was held and the evidence of PW7 (KaramoJatta) who was part of the meeting at the compound of the Gibril’s who gave details of what transpired at the meeting.
“As mentioned previously, both PW4 and PW7 are accomplices. Some independent evidence is necessary to corroborate their evidence. As stated before, an accomplice cannot corroborate another accomplice. Although I could rely on the evidence of an accomplice after properly warning myself, for the offence of treason, the evidence must be corroborated. The extra-judicial statement of the 2nd Accused is entirely exculpatory. The call log does not help in proving the offence without other substantive evidence to be corroborated. I find no corroboration available or no sufficient corroboration available. The fact that the 1st Accused Sanna Fadera) spoke to the 2nd Accused person (GibrilDarboe) over the phone is not enough. In the circumstances, the Prosecution has not proved the guilt of the 2nd Accused as concerns treason within the requirements of the law.”
Justice Mahoney said the evidence against Ebrima Sanoh in respect of the offence of treason are contained in the testimony of PW4, the driver, who said he drove Sanna Fadera, Ebrima Sannoh and PW7 Karamo Jatta to the compound of Gibril Darboe in Kafuta where a meeting was held and the evidence of PW7 who gave similar evidence but included details of the meeting.
“There is nothing in the extra-judicial statement of the 3rd Accused for the Prosecution to rely on. Again both PW4 and PW7 are accomplices. An accomplice cannot corroborate another accomplice. Just as for the 2nd Accused, the Prosecution has not proved the guilt of the 3rd Accused as concerns treason within the requirements of the law.”
Justice Mahoney said the evidence against Fabakary Jawara in respect of the offence of treason are contained in the testimony of PW4 (Mustapha Jabbie) concerning taking him to a marabout on several occasions and the evidence of PW2 (YayaManjang), one of the marabouts consulted with regards to the coup d’état.
“Both PW2 and PW4 are accomplices. Just as for the 2nd Accused (GibrilDarboe) and the 3rd Accused (EbrimaSannoh), the Prosecution has not proved the guilt of the 5th Accused (FabakaryJawara) as concerns treason within the requirements of the law.”
On the count of conspiracy, Justice Mahoney said it must be proven that there was an agreement by two or more persons to prosecute a common purpose.
“Now, as stated under Count 1, there is evidence against the 1st Accused that he prepared to overthrow the Government,” Justice Mahoney said.
He said the evidence of PW3 (Captain Mamat Jobe), PW4 (Mustapha Jabbie), PW7 (Karamo Jatta) and PW8 (military intelligence) and the call log are all against the 1st Accused (Sanna Fadera) only.
He acquitted and discharged the accused persons of treason. The only person convicted and sentenced was Lance Corporal Sanna Fadera after he was found guilty of Treason contrary to Section 35 (1) (a) of the Criminal Code.
The judge acquitted and discharged all the accused persons including Sanna Fadera of the charge of conspiracy. He also acquitted and discharged Sanna Fadera of incitement to mutiny and is hereby acquitted and discharged.
“Having heard Counsel for the 1st Accused make a plea in mitigation for the 1st Accused who has just been found guilty and convicted of Treason contrary to Section 35 (1) (a) of the Criminal Code, and having heard the Director of Public Prosecution in his response, in passing sentence, I consider that in the absence of violence, the death penalty is not appropriate. The alternative is life imprisonment, but Section 29 of the Criminal Code is there for a purpose: whenever the Court determines that a lesser sentence is appropriate, it may invoke Section 29.
The aggravating factors in this case are that the offence is Treason – preparing to overthrow the Government of The Gambia by unlawful means. This, the law generally frowns upon as the only way to change a Government is by elections as constitutionally provided.
The mitigating circumstances on the other hand are that there was no violence employed in the commission of the offence. The convict is a young person engaged in the Army and working as a lab technician having graduated from the University of The Gambia with a Bachelor’s Degree in biology and chemistry. He has no previous convictions.
I believe the severity of the offence deserves some period of imprisonment but considering the conditions of our prisons, I believe imprisonment for life would be very harsh in the circumstances.
I will therefore invoke Section 29 of the Criminal Code and impose a lesser sentence on the convict. I believe this was done previously in other Section 35 offences.
In all the circumstances, I will impose imprisonment on the 1st Accused – convict and sentence him to 12 (twelve) years imprisonment for the offence of Treason.”