By Lamin Sanyang
Defense lawyer Lamin S. Camara yesterday, Monday 23 June,2014 urged the court to acquit and discharge Mambury Njie, former Minister of Finance, who is facing charges of economic crime and neglect of official duty as there is no element of evidence in the case.
Lawyer Camara, in his application for a no-case submission before Justice Mikhail Abdullah of the Criminal Division of the Banjul High Court, argued that the evidences of the two prosecution witnesses combined did not establish any of the ingredient of the offenses charged against the accused person. He drew the attention of the court to section 7 (d) of the Common Laws of the 1997 Constitution of the Gambia. He also cited Section 166 of the Criminal Procedure Code.
“I respectfully enjoin the court to acquit and discharge the accused person for the prosecution’s woeful failure to established a prima facie case,” said Lawyer Camara.
The defence counsel said what is obvious before the court is that the evidences of the witnesses did not established nexus between the two counts. Therefore, he said, it is woefully inadequate, unreliable and unworthy of consideration.
The defense has submitted that the accused person is charged with two counts of economic crime and neglect of official duty respectively. He said it behoves the prosecution to prove in count one, the act or omission that the accused did willfully or recklessly caused economic lost to the state which, he said, must be directly related to Carnegie Minerals. He mentioned the two prosecution witnesses, Malick Sanyang and Abdoulie M. Cham.
“It is our submission that neither Malick Sanyang nor Abdoulie M. Cham adduced cogent, credible and reliable evidence before this court to prove accusation of the offense. There is no amount in count one of the economic crimes. It does not state how much is lost to the government,” he submitted.
Defense Counsel Camara referred to the first prosecution witness (Malick Sanyang), a police detective, who said in his testimony that the scope of investigation into the Carnegie Minerals which he headed was to find out three things. The said investigation was to find out how Carnegie Minerals came to the Gambia, how it was able to obtain mining license and the relationship between Carnegie Minerals and the accused person.
“We submit that the scope of the investigation has nothing do with count one as the charge on this count is not about who gave mining license to Carnegie Minerals or how Carnegie Minerals came to The Gambia or the relationship between Carnegie Minerals and the accused person. The charge is economic crime,” he told the Court.
At this juncture, he referred the court to Exhibits B, B1 and B2 which are correspondence relating to Carnegie Minerals. He argued that none of the said exhibits contain any specific amount of lost to the government by virtue of the accused. He also mentioned Exhibits C, C1, C2 and C3 which, he said, were cautionary statements of the accused that speak for itself and none of which is an admission or conclusion.
“I have not played any role to bring Carnegie Minerals in The Gambia,” he quoted the cautionary statements.
Defense Counsel Camara submitted that the first prosecution witness under cross examination admitted that none of the Exhibits B, B1 and B2 bears the name of the accused. He said the question that is begging an answer is what this witness knows about count one. He said he did not know anything.
“He did not say anything that ties Mr. Mambury Njie (accused) to count one of the indictments,” he told the court.
Lawyer Camara also mentioned the testimony of the second prosecution witness (Abdoulie M Cham), former director of Geological department, who, he said, was supposed to be the star witness of the prosecution as he has been in the thick of the matter. He said what is conspicuously lacking in his evidence is what should have been the total amount of royalties paid to the government which has not been paid.
“That is the only way that the state can say there is a willful or omission occasion of economic lost to the government. The question is by whom? The answer to this question will be academic,” he submitted.
The defense submitted that there is no figure between the counts adduced by this witness to say what the Carnegie Minerals have paid is less than what they should have paid. The witness, he said, testified as to the content of Exhibit A and confirmed to the total number of mineral sands mined and further confirmed the royalties paid on it.
“This witness in the entire purpose of his evidence did not even mention the name of the accused person and link it to the charge,” said Lawyer Camara.
He recounted the evidence of the witness who said the license provides for the operator to send reports to the geological department which, he said, has put the witness in a better state to tell the court what is the nature of the lost, how much is the lost, who is responsible for the operation of Carnegie Minerals and who is overseeing the company, who is culpable for the lost caused by Carnegie Minerals in The Gambia. These questions, he said, have not been answered.
“Therefore, the court is left in darkness without answers,” he submitted.
Lawyer Camara further told the court that the witness said under cross examination that the Geological department has a line ministry which has the final authority on petroleum matters. He said there is no evidence from either the first or second prosecution witness that the accused person has at any time been the Minister of Petroleum or Permanent Secretary for that ministry or even has administrative oversight of that ministry.
The defense lawyer in his submission on count two, neglect of official duty, referred to Section 113 of the Constitution. He argued that the two prosecution witnesses did not say anything on count two. He added that none of the witnesses said he was supposed to advise the state on the activities of Carnegie Minerals.
The defense questioned the stature for the Common Law imposed on the accused to perform the duty which he has failed. He said for a no-case submission to succeed it must be established that the prosecution has failed to prove the ingredients of the offense. He added that the evidence adduced by the prosecution must have been thoroughly discredited under cross examination that no reasonable tribunal can convict on it.
“I submit that the evidence of the second prosecution witness has been thoroughly discredited under cross examination,” he said.
Earlier, Simon Abi, Deputy Director of Special Litigation, tendered the ruling of Justice Joseph Ikpala on the no-case submission between the State versus Alhagie Bakary Trawally and others at the Brikama High Court. When there was no objection from the defense, the document was subsequently admitted and marked as an exhibit.
The state prosecutor maintained his argument that there is a prima facie case and urged the accused to enter his defense. He made mentioned of the documentary evidences tendered by the first prosecution witness before the court which, he said, speak for themselves. He argued that the accused cannot deny having been under obligation to advise the government on the issue of Carnegie Minerals.
“We submit that the prosecution has established a prima facie case on both counts which require an explanation from the accused person,” said the State Prosecutor.
The Deputy Director of Special Litigation referred to Exhibit A which, he said, is evidence of shipment by Carnegie Minerals. He argued that there is a monetary term in those shipments. He further argued that the evidence of the second witness and Exhibit A is clear on what is lost to the government.
The state prosecutor submitted that the accused admitted in his cautionary statement that he was a Secretary General, adding that there is no need for any law to tell the court that the accused was under the obligation of advising capacity.
“The accused is sufficiently link to the charges. I urged the court to dismiss the submission of no-case to answer,” he said.
Meanwhile, the earlier submission of no need for any law whether the accused was under the obligation of advising capacity was challenged by the defense quoting Section 113 of the Constitution.
The case was adjourned to Thursday, 3rd July 2014, for ruling.