Gen. Mendy & Gen. Tamba

By Yankuba Jallow

The ‘no case submission’ made by the Counsel for Brigadier General Umpa Mendy and Brigadier General Ansumana Tamba at the General Court-Martial, has been dismissed.

The Court made this ruling on the 18th of October 2018, at the Yundum Military Camp, in the West Coast Region. The issue before the Court was whether the prosecution had made any case to warrant the accused persons enter their defense.

If readers can recall, the two were jointly charged with desertion, upon their return from Equatorial Guinea which led to their subsequent arrest. They went with former president Jammeh to the Central African country after the political impasse.

In attendance at the Court-Martial were Commodore M. Senghore (president), Brigadier General RDK Sanneh, Colonel H. Sambou, Colonel S. Bojang, Captain (N) S. Barrow and Captain (N) FJ Baldeh. The judge advocate was Justice Aminata Saho-Ceesay of the Banjul High Court. The Court held that a prima facie case has been made in respect of the charge against the accused persons, to warrant them enter their defence.

The ‘no case submission’ was made on the 11th day of July 2018, after the prosecution called six witnesses and declared their case closed. The ‘no case to answer’ submission was made pursuant to Regulation 125 of the Armed Forces Regulation on Discipline.

Lawyer for the accused persons Uzoma A. in making the application, said no prima facie case was established against his clients to warrant them enter their defence. Counsel Uzoma relied on section 144 of the Evidence Act 1994, which states that the burden of proof rests on the prosecution. The learned Counsel submitted that if the prosecution fails to establish a prima facie case requiring the accused persons to open their defence as per section 128 of the Act, the only option open is to discharge them of the charge made against them. He further submitted that no proper evidence was made in support of the charge against the accused persons.

Counsel Uzoma cited the definition of desertion as per the Act as ‘‘being on, or having been warned for active or any other service, and being absent without authority, with the intention of avoiding that, unit, formation and place.’’ Counsel Uzoma laid particular emphasis on key phrases such as: ‘‘intention to avoid service’ and ‘‘intention of not returning to unit, formation or place.’’

“Clearly, the prosecution has failed in its obligation to prove the actual intentions of the accused persons, in having to leave their duty post at State House Guards battalion and having traveled with the former president to Equatorial Guinea,” said Counsel Uzoma. He argued that a person serving in the Gambia Armed Forces can only be termed as a ‘deserter’, if it is proven that he had left his duty with intention of avoiding service and also with the intention of avoiding service and not returning to his unit, formation or place as stated in section 55 of the Act.

It is the submission of the defence that all the evidence and testimonies of the prosecution witnesses point to the fact that the accused persons have been out of the jurisdiction for over six months, which is a reasonable timeframe set by the Act, but not that their actual intention of leaving was to avoid their duty. Reliance was placed on section 166 of the Criminal Procedure Code (CPC) and the case of R v Galbraith (1981).

The prosecution argued that the testimonies of their witnesses remained unshaken and that based on the provisions of section 125 (1) and (2) of the Regulations, what these provisions require is not conclusive proof which is proof beyond all reasonable doubt but rather, a prima facie case; that is to say, what is presented by the prosecution calls for explanation on the part of the accused persons.

On what is meant by a prima facie case, the prosecution placed reliance on the case of Godwin Chinugu v The State (2006) and submitted that prima facie case is not the same as proof, which comes later when the Court makes its finding of guilt of the accused persons; but rather, it is evidence which, if believed and not contradicted, will be sufficient to prove the guilt of the accused persons.

Replying on points of Law, lead Counsel Uzoma contended that it is trite that in any commission of a crime or offence, there has to be an actus reus and mens rea; that in this case, the prosecution has successfully proven that the accused persons have been away for a duration of one year in Equatorial Guinea (actus reus), but did not prove ‘the intention to avoid service and not returning to unit, formation or place’ (mens rea).

In her ruling, the Judge Advocate Amina Saho Ceesay said the application of the Evidence Act is ousted by section 1 (2) of the Evidence Act which reads: “The Act shall apply to all judicial proceedings in or before any Court established in The Gambia, but it shall not apply to a Court Martial established under the Gambia Armed Forces Act.”

“It is the totality of the evidence adduced thus far by the prosecution, that has fortified our conviction that a prima facie case has been made, in respect of the charge proffered against the accused persons to warrant the Court to call upon them to enter their defence and we so hold,” the Judge Advocate ruled.

“In the premise of the foregoing, the defence’s ‘no case submission has failed and is hereby dismissed,” the Court ruled.

The Court-Martial held that since it is a unanimous decision that a prima facie case has been made against the accused persons, the trial should proceed based on the charge.

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