By Mamadou Dem
Acting Principal Magistrate Lamin Mbaye Snr. yesterday 22nd September convicted and sentenced Mr. Buba Sagnia, erstwhile Director General of the Immigration Department to a fine of D20, 000.00 in default to serve three years imprisonment.
The trial Magistrate in delivering the judgement in a congested courtroom stated that he had found the convict guilty with the offence of ‘Abuse of Office,’ contrary to the laws of the Gambia.
However the convict was found innocent on the second count of ‘neglect of official duties’ Mr. Sagnia accompanied by family members, friends and well wishers became a free man upon payment of the fine imposed on him by the court. His trial took almost a year during which he suffered from high blood pressure and was about to collapse in court during the trial and when the Magistrate was reading the judgement.
Mbaye reading the judgment continued and convicted Sagnia on a single count and discharged him on the other. “I will begin this judgment by stating that the accused is presumed innocent until proven guilty by a court of law,” said the Magistrate. He said the above principle is an entrenched constitutional provision and provided under Section 243 of the 1997 Constitution of the republic of the Gambia; adding that there are also plethora of decisions from the superior courts of The Gambia buttressing the presumption of innocence of an accused until proven guilty. The prosecution must not rely on the weakness of an accused as defence but must prove the case by laying before the court all evidence it relies upon as well as by calling all material witnesses before the court. “It is also trite that the prosecution has the duty to prove the guilt of the accused and in any case standard is beyond doubt” “Having state so, I will state that the essential elements of the offence for which the accused is standing trial on count 1 as per section 90 of the criminal code is, Whether the accused Buba Sagnia acted in abuse of office, whether he neglected his official duty as former director of immigration and whether the prosecution has proven its case against the accused as required by Section 147 of the Evidence Act 1994. “It is not in doubt that the accused did issue an entry clearance visa to the two nationals of Syria and Lebanon,” said the Magistrate. According to the Magistrate, the prosecution has led evidence that the accused should have consulted with other security agencies particularly the director of NIA before issuing clearance visas to nationals from those two countries. He said the evidence of PW6 who is a senior intelligence analyst at the NIA and also a member of the investigating team is crucial. He said the convict in his evidence in-chief agreed that caution should be exercised before granting application to persons from countries with civil strife including Syria and Lebanon; adding that the accused further agreed that the reason those countries were listed in Appendix 9A and 9C of the Immigration Manual is for security reasons. “I agreed with the prosecution that the list which was prepared several years ago even though not updated could include the two countries, I believed the convict in his capacity as director general of immigration has a duty to be aware of such situations and as such should put the security of the Gambia into contemplation before granting entry clearance visa to nationals from Syria and Lebanon,” he opined.
The trial Magistrate further noted that the accused being a senior public officer ought to know and be aware of changes in those countries and should have taken proper case and diligence before issuing clearance visa. He said he has no doubt that the convict acted within the guidelines under the immigration manual which states that “where an applicant resides in an area outside the jurisdiction of the visa issuing officer, the application shall be referred to the director of immigration for clearance. We know from the evidence that the accused never consulted the director of NIA in relation to the application in question. By so acting did the accused person put the security of the country at risk? My answer is YES. I say so because the accused has stated in his cautionary statement admitted as exhibit A, statement at a time when the issues or incident was fresh in his mind that “……Nationals of Syria based in Syria are forwarded to the Director General NIA for further screening,” cited the Magistrate.
The trial Magistrate further went on to say that the cautionary statement of the accused person corroborated with the evidence of PW6 whose evidence is very crucial in this case. “To my mind, the action of the accused person in not following the normal procedure as laid down in exhibit D (Immigration Manual) certainly amounts to abuse of his office,” asserted the Magistrate. Mbaye added that the convict did not tell the court if he had checked whether the people mentioned in the application were actually resident in Syria or not. The onus was on the accused to prove this to the court as the prosecution cannot prove the negative. PW4 Secretary to the director at the time told the court that the procedure is that she types the clearance documents and returns it back to the office responsible for it. However in the instant case, she typed the document and gave it back to pw1 Mr. Joof who personally took it to the accused for approval. “This piece of evidence clearly shows that the accused person did not diligently follow the normal procedure as laid down in Rule 9:8 of exhibit D,” concluded trial Magistrate Mbaye.
The trial Magistrate opined that public interest dictates that the people in senior positions like the convict as he then was should be fully aware of the changing political situations around the world particularly Syria. “Having regard to the totality of the evidence before me, I have no doubt that the prosecution has proven it’s case against the accused person Buba Sagnia with the level of certainty required by law on count one.” However on the totality of evidence on count two, neglect of official duty, the trial Magistrate said “I found that the prosecution did not sufficiently prove all the ingredients of the second charge against the accused person. I therefore found the accused not guilty on count two.
PLEA OF MITIGATION
Defence Attorney Edward Singhateh submitted that the convict has been an Immigration Officer serving the country for 35 years. “We submit that Buba Sagnia has served the country with integrity, honesty and dedication, plus a tremendous commitment to duty which led to his rise through the ranks to the position of Director General of the Immigration Department. “We submit that it is just human error and Mr. Sagnia is extremely remorseful for the offence for which he has been tried and has always perform his duty with utmost good faith,” said counsel. “We submit that Abuse of Office in Section 90 is a misdemeanour and we urged the court to take into consideration that there was no ‘ill intent’ act performed by Mr. Sagnia leading to this trial, neither the Syrian nor the Lebanese entered the country and as such, we submit that Mr. Sagnia had never had any intention to do any harm during his course of duties. We submit that the convict has a large family and throughout this trial, the convict has suffered various medical problems which also caught the mind of the court,” persuaded the defence counsel Edward Singhateh. “It is for this reason that we humbly urge the court to exercise its discretion under Section 31 of the Criminal Procedure Code and impose a fine and not a custodial sentence.” The defence finally submitted that the convict being head of a very large family and his poor health condition, a custodial sentence could have repercussions not only on the convict but his entire family and those dependent on him. He said the convict is a law abiding citizen all his life and never had a conflict with the law. “We urge the court to tamper justice with mercy and if the court will not caution and discharge then let it fine the convict,” appealed the counsel. SENTENCE: “I have listened carefully to the plea of mitigation of counsel for defence. In so doing, I considered the fact that the offence for which the convict has been found guilty of is a misdemeanour.” According to the Magistrate, the offence the accused was found guilty of carried a maximum custodial sentence of 3 years. He said “Also considering the nature of the offence and the fact that the convict was very responsible and has a large family, I upheld my discretion to sentence the convict to a fine of D20, 000.00 or in default he will serve 3 year imprisonment.”