By Kebba Jeffang
Sheikh Muhideen Hydara and Buyeh Touray, the Caliph General and former Alkalo of Darsilameh Sangajor in Foni respectively, have been acquitted and discharged on the two counts preferred against them by the Brikama Magistrates’ Court yesterday, Wednesday, 27 May, 2015.
Delivering the verdict on the trial that lasted for more than nine months in a crowded courtroom, Magistrate Ebrima Jaiteh said “no reasonable tribunal can secure conviction.”
When the matter was called, Chief Inspector Camara and Sub Inspector Sarr appeared for the state whilst Lawyers Antouman Gaye and Lamin L.K. Mboge represented the accused persons.
Magistrate Jaiteh recalled that the accused persons Muhideen Hydara and Buyeh Touray are charged with two counts of criminal offences contrary to sections 368 and 116 respectively of the Criminal Code, Cap 10, Volume III, and Revised Laws of The Gambia, 2009.
He said the particulars of offence alleged in count one that the accused persons on the 29th day of July 2014, between 10 am and 11 am at Dasilameh Sangajor, Foni Kansala District in the West Coast Region in the Republic of The Gambia, jointly conspired to commit a felony.
The magistrate added that the accused persons are alleged in count two to have on the 29th day of July 2014, between 10 am and 11 am at Dasilameh Sangajor, FoniKansala, West Coast Region in the Republic of The Gambia, jointly disobeyed lawful orders of the president of the Republic of The Gambia, by refusing to perform the Eid ul-Fitr prayers on the 28th day July 2014, as announced by The Gambia Radio and performed the Eid ul-Fitr prayers on the 29th July 2014, thereby committed an offence.
The trial magistrate said they were arraigned before the court on the 12th day of August 2014 and they pleaded not guilty to the offences alleged.
He noted that to discharge the burden of proof required in this case, the prosecution had called 3 witnesses and tendered 0 exhibits in evidence.
“I have carefully read through all the testimonies adduced by the prosecution and defence witnesses in the case file. In as much as I have looked at the testimonies, and the arguments of the defence counsels in detail in order to ensure fairness, I will only limit my comments, my observations, and my findings to as it relates to the charge of Conspiracy to commit a felony and Disobedience to lawful order contrary to sections 368 and 116 of the Criminal Code of The Gambia. It is the cardinal principle in criminal cases that, the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution. Although the prosecution can do so by either direct or circumstantial evidence, the law requires that in either case the prosecution bears the legal burden of proving all the elements of the offence necessary to establish the guilt of the accused beyond reasonable doubt,” said the magistrate.
He said from the foregoing, it is clear that the prosecution must succeed on the strength of its own evidence and not allowed to rely on the weakness of the defence or lies told by the accused as the basis for a conviction. He said he holds the strong view that to succeed, the prosecution must lead copious, cogent, compelling and unequivocal evidence with unshaken points to the accused persons as the men who committed the alleged offences, adding that the prosecution therefore has the unshifting burden of proving all the ingredients of the offences with which the accused has been charged.
“The fundamental issue under the law of Conspiracy is whether there was an agreement or meeting of the minds between the first accused person Muhideen Hydara and the second accused person Buyeh Touray? In order to answer this issue, I read in detail all the evidence of the prosecution’s witnesses and most importantly, the evidence of PW1, Momodou Lamin Jarju, PW2 Seedy Gibba and PW3, Seedy Saidykhan. The evidence of Momodou Lamin Jarju, who is the Chief of Kanfenda, did not personally visit Damilameh Sanganjor during the crises and did not testify that the first and second persons made an agreement nor had the intention to commit felony or an unlawful act. The entire evidence of Momodou Lamin Jarju did no help the prosecution in proving the elements of conspiracy. Momodou Lamin Jarju’s testimony is a bundle of hearsay evidence, in particular when he testified that, “the chief of Bondali Dembo Badjie called and informed him that the Governor said the president said that if you don’t pray on Monday, you should not pray on Tuesday.” This statement is injurious to section 19 of the Evidence Act 1994 and did not fall within the exception to the rule of hearsay evidence,” said magistrate Jaiteh.
The trial magistrate said the second prosecution witness is Seedy Gibba, a Badge Messenger to the first prosecution’s witness, Chief Momodou Lamin Jarju who testified that he did not inform the 1st accused person Muhideen Hydara of the chief’s message and the 2nd accused also testified he equally did not inform the 1st accused about the said message in question.
Magistrate Jaiteh said the final prosecution witness in this case was the arresting police officer called Seedy Saidykhan whose role was very minimal as he only arrested the second accused person Buyeh Touray. He said the said officer was not an investigation officer and did not testify that the first and second accused persons had an agreement to commit a felony.
“The accused persons in their defence denied the allegation of conspiring to commit a felony and my mind is shadow with doubts as to whether the duo made an agreement to commit an unlawful act. Agreement is the basic element of conspiracy and the prosecution in this case has failed woefully to prove the Actus Reus of Conspiracy beyond reasonable doubt that Muhideen Hydara and Buyeh Touray made an agreement to commit felony. I do not find any evidence or the evidence of the ingredient of this offence or element that can even sustain or even secure a conviction on this charge. It is trite law that once the prosecution fails to establish the actus reus of an offence such as the instant case, and where there are doubts in the mind of the Court as to whether or not it is the accused that committed the offence, such doubts should be resolved in favour of the accused and I reach the conclusion that the prosecution has not proved the charge of Conspiracy beyond reasonable doubt in count one,” he told the court.
He said on count 2, the offence of disobedience to lawful orders is in Section 116 of the Criminal Code and added that it provides the relevant issues for determination under section 116. He asked “(a) Where are the lawful orders of the President that were disobeyed? (b) Where is the evidence that this announcement is from the President?”
“With regards to the first issue as to where is the lawful order of the President of the Republic of The Gambia that were disobeyed by the first accused person Muhideen Hydara and the second accused person Buyeh Touray is an essential ingredient of the offence in section 116 of the Criminal Code of The Gambia. The prosecution in their bid to prove their case did not tender any evidence as exhibit before this court to show that the orders disobeyed are from the President of the Republic of The Gambia. The prosecution failed to call a very important witness such as the Governor of West Coast Region, who is the alleged recipient of the President’s Lawful Orders. I wonder why the Prosecution failed to call a star witness like the Governor. The testimony of the Governor cannot be equated to any of the prosecution witnesses who testified before this court,” he said.
Magistrate Jaiteh, on the second question as to where is the evidence that this announcement is from the President, said this is another significant element under section 116 of the Criminal Code. He said the prosecution alleged in count 2 that Muhideen Hydara and Buyeh Touray jointly disobeyed lawful orders of the President of the Republic of The Gambia by refusing to perform Eid ul-Fitr prayers on the 28th July 2014, as announced by The Gambia Radio and Television Services (GRTS). He indicated that the prosecution must prove that there was an announcement from the President but failed squarely to tender any evidence of the announcement from the President of the Republic as alleged in count two on the charge sheet. He also stated that prosecution did not call another material witness from GRTS as the medium who allegedly announced the lawful orders of the President that were allegedly disobeyed by the accused persons.
“I find no iota of evidence from the Prosecution that there is a lawful order from the President of the Republic of The Gambia. The defence counsels in rebutting and discrediting the allegation of the prosecution in count two, summoned the Director General of The Gambia Radio and Television Services to produce the radio and television announcement of the performance of Eid ul-Fitr prayers aired the 27th day of July 2014. The Deputy Director General of GRTS deputized for the Director General and testified for the defence as a witness and stated that he has in custody of the recorded video and transcribed copy of the said video announcement, which were admitted as defence exhibits “D1 and D2” respectively. I have listened to the video recording of the announcement and read the entire transcribed copy of the announcement. There is no evidence in exhibit “D2” the transcribed copy showing that the announcement made on the 27th day of July 2015 by GRTS was from the President of the Republic of The Gambia. The six (6) panelists who made the announcement is a delegation from the Supreme Islamic Council of The Gambia extending greetings and best wishes for a blessed Eid ul-Fitr of 2014. The evidence adduced by the prosecution has been so discredited by the defence and is so manifestly unreliable that no reasonable tribunal can safely convict on it.,” said Magistrate Jaiteh.
Magistrate Jaiteh said the prosecution has not provided any cogent, compelling and unequivocal evidence to the contrary. He said he is satisfied by the evidence and submission of the defence that that the President of the Republic did not make any announcement over GRTS sanctioning Eid ul-Fitr prayers on a specific date but from the Gambia Supreme Islamic Council delegation.
“It is my considered view that the prosecution has woefully failed flat again to prove that the announcement by GRTS was from the President of the Republic with the certainty required by law. The accused persons MUHIDEEN HYDARA and BUYEH TOURAY are accordingly acquitted and discharged by this court on count one and count two respectively,” ruled Magistrate Jaiteh.
After the final verdict was announced by the Magistrate freeing the accused persons, there was a massive celebration by the waiting large crowd outside the court room. The Caliph General in a short statement thanked the lawyers, journalists, relatives, friends who all have been feeling and defending the truth since the crisis was erupted. He also offered prayers to people and the society especially to the youth folks of the nation, peace and tranquility as well as better rainy season that is just near to come.