By Rohey Jadama
Sainey N.K. Marena, a freelance Journalist and Musa Sheriff, Editor and proprietor of the Voice Newspaper, who were standing trial on two counts of conspiracy to commit Misdemeanor and Publication of False News were acquitted and discharged yesterday, 10th November, 2014 by Magistrate Jacklin Nixon Hakim of the Banjul Magistrates’ Court.
IGP was represented by Sergeant 2040 Saidykhan whilst Lamin K. Mboge held brief for Lamin S Camara counsel for the accused persons.
In delivering his judgment, Magistrate Hakim said the charge sheet for the accused persons was amended and filed on the 21st January 2014 and that the accused persons were arraigned on a two count charge for Conspiracy to commit felony contrary to Section 368 and for Publication of false news with the intent to cause fear and alarm to the public contrary to Section 181(1) of the Criminal code cap 10:01 volume 3 revised laws of the Gambia 2009.
Magistrate Hakim said the accused persons pleaded not guilty to the two count charge after which the trial commenced and the prosecution called a total of eight witnesses and tendered three exhibits numbered “A-E”.
The trial magistrate said at the close of the prosecution’s case, the learned defence counsel orally informed the court of his wish to make a “No case submission” on behalf of both accused persons. This, she continued, was allowed and counsel made a no case to answer and submitted a copy of one of the authorities he cited whilst the prosecution opted to file a written address on reply to the no case but submitted no copies of the cases cited therein.
Magistrate Hakim said both parties adopted their briefs on the 13th October 2014 and that the matter was subsequently adjourned for ruling.
“I will briefly review the submission made by counsel and the prosecution and I shall make reference to them during the course of my ruling. The learned counsel for the accused persons submitted that the application for a no case to answer is premised on Section 166 of the criminal procedure code and it is made to the effect that the prosecution have failed to establish a prima facie case against the accused persons and thus enjoins the court to acquit and discharge the accused persons. Counsel posited that the prosecution is required to establish the elements of the offence charged, the mens rea and actus reues which they have dismally failed to do. To support his submission, counsel referred the court to the case of the state vs. Mambury Njie,” the trial magistrate said.
She said the defence counsel argued that the prosecution has failed to adduce cogent and reliable evidence worthy of belief by the court or any tribunal to require the accused persons to enter their defence.
“The counsel submitted that the question left unanswered by the prosecution is “Did 19 Green youths join the UDP from APRC on the 30th of November, 2013? Counsel Camara further submitted that there is so much doubt and lacuna in the evidences and no one can convict the two people as there is room for conjecture and where there is doubt in any case, it goes to the benefit of the accused persons,” said Magistrate Hakim.
She said the counsel stated that evidence of the eight prosecution witnesses is only centered on count one and not on count two. In concluding his oral submissions, she added, counsel submitted that the evidence adduced by the prosecution is tenuous, unreliably, discredited and unworthy of belief and therefore urged the court to uphold the no case submission.
In response, ASP Camara stated the law on the meaning of “No case submission” by recapitulating out “the meaning of a submission that there is no-case for an accused to answer is that there is no evidence on which, even if the court believes it, it could convict. “The question whether or not the court does believe the evidence does not arise nor is the credibility of the witnesses is issue at this stage”,” she said.
The magistrate added that the prosecution also stated the law on what needs to be considered when a “No case submission” is made. “What has to be considered at the stage of a no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the accused. It was submitted on behalf of the prosecution that count two which is publication of false news is strict liability offence and thus it is enough to prove the actus reus of the offence which the prosecution have done in this instant case. ASP Camara for the prosecution submitted that based on count one an agreement may be expressed or implied and stated that there would not have been a publication on the voice newspaper with the headline “19 Green youths from Tanji defected to UDP,” ” said the trial magistrate.
She said ASP Camara submitted that the prosecution has established that the total number of green youth boys in Tanji is 68, who were not in the said village on 30th November, 2013. “In conclusion, he urged the court to overrule the no case submission made by the learned defence counsel and invoke the provision of section 167 of the criminal procedure code and order the accused persons to enter their defence,” said the magistrate.
Magistrate Hakim said “as rightly put by counsel, application for a no case submission is provided for under Section 166 of the CPC volume 3 revised laws of the Gambia 2009 which I shall spell hereunder if at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence the court shall, as to that particular charge, acquit him or her.”
On count two which is the offence of false publication contrary to section 181(1) of the criminal code, the magistrate noted that this reads that a person who willfully, negligently or recklessly, or having no reason to believe that it is true, publishes or broadcasts any information or news which is false in any material particular commits an offence and is liable on conviction to a fine of not less than fifty thousand dalasis and not more than two hundred and fifty thousand dalasis or imprisonment for a term of not less than one year or both the fine and imprisonment. “Premised on the foregoing, the wordings in Section 181A (1) of the CPC is clear. I disagree with the prosecution that the provision of the aforementioned code is a strict liability offence and I believe that was not the intention of the legislature. It was not in dispute that there was a publication i.e. exhibit A. However, the evidence adduced before the court with regard to both counts were neither direct nor circumstantial showing that the publication was false and that the accused persons conspired amongst themselves to publish exhibit A,” she said.
The trial magistrate concluded that she is of the view that the prosecution has failed to prove the essential ingredients of the offence on both counts as required by law. “Hence, it is my view that the prosecution have failed to prove a prima facie case against the accused persons as such on the authority of the state vs. Mambury Njie, I shall hereby acquit and discharge the accused persons on all counts,” said Magistrate Hakim.