Sunday, August 25, 2019

Court-Martial to Rule on the Admissibility of Transcribed ‘WhatsApp’ Conversations

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By Kebba Secka

In the ongoing criminal trial of Warrant Officer 1 Sulayman Badjie and Lance Corporal Lamin Kujabi, the court is set to deliver a ruling on the admissibility of computer-generated documents.

This came about when the defence lawyer, O.Suso made an objection to the admissibility of the computer generated document which was tendered through Warrant Officer 2, Fakebba Camara who is a witness in the suit.

Camara, the fifth prosecution witness (PW5) said he is the clerk of the general court-martial in the trial of 12 soldiers charged with treason, mutiny, incitement to mutiny and 9 other criminal charges. He added that he is the custodian of the document (the transcribed ‘WhatsApp’ voice note and text messages) that were marked as Exhibit T and S in that Court-Martial.

“Do you have all the documents with you?” asked Counsel Yusuf, the prosecutor.

“I don’t have all but I have some with me,” the witness replied.

The witness said the transcribed voice notes were marked as Exhibit T and the telephone text messages were marked as Exhibit S. He added that he was the one who certified those documents as true copies of the Court document.

At this juncture, prosecutor Yusuf applied to tender the documents as Exhibits before the court-martial but Counsel Suso objected to the application.

Suso told the court-martial that the documents are within the categories of computer-generated evidence and the law has laid down procedures to be followed when tendering such documents before a court. He said the prosecution has failed to observe the procedures used to certify computer generated evidence. Counsel Suso referred the court-martial to sections 120 and 130 of the Evidence Act 1994 and regulation 166 of the Gambia Armed Forces Regulations. Suso told the court-martial that the GAF Act is silent about the admissibility of such documents.

In his counter-argument, Yusuf said the documents were admitted and marked as Exhibits by a competent court-martial and that the argument made by the defense lawyer is unfounded. Yusuf argued that despite the GAF Act is silent over the issue of admissibility of computer generated documents, the documents are public documents.

The judge advocate Zainab Jawara-Alammi asked the lawyers to put their arguments in written form and submit them before the end of the week.

The matter was adjourned till 14th January 2019 at 10:30 am for ruling and continuation of hearing.

Meanwhile, the fourth prosecution witness (PW4) also gave testimony before the court-martial. He said his name is Sulayman Gaye, a police officer attached to the Interpol Unit at the Gambia Police Force Headquarters in Banjul. He said on the 7th July 2017, a Military Board of Inquiry was setup to investigate a case about the accused persons in relation to some pictures of timber that were taken and uploaded on Facebook. He said during the investigation of the photos of the timber, the Board of Inquiry also discovered a ‘WhatsApp’ group created purposely to destabilize the peace in the country. He added that he was an active member of the Board of Inquiry.

“The panel of investigators obtained subscribed details of numbers in the WhatsApp’ group chat. Text messages as well as downloaded audio conversations were obtained from the accused persons by the investigators,” he adduced.

He added that the report from the cellular companies such as Qcell, Africell and Comium showed that some of the numbers were not registered whilst others were registered by third parties.

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