Court fines two Researchers

By Mamadou Dem
The Banjul Magistrates’ Court, yesterday convicted and sentenced  Seth
Yaw Kandeh and Olufemi Erinle Titus of Ghana and Nigeria respectivelyupon changing their plea of not guilty to guilty based on advice given
to them by their counsel.
The duo who was standing trial alongside Sait Matty Jaw, a lecturer at
Gambia’s highest Institution of learning (UTG) was ordered to each pay a
fine of fifty thousand dalasis in all the counts meted against
them in default to serve one year imprisonment without hard labour.
They were jointly charged with Mr. Jaw on four counts ranging from
“conspiracy to commit misdemeanour, failure to register a business and
two counts of Disobedience of Statutory Duty, contrary to the laws of
the Gambia. However Mr. Jaw maintained his plea of not guilty.
Following a ruling by the Magistrate upholding the prosecution’s
application for an NIA operative (PW1) to testify in camera, Lamin Mboge
counsel for the convicts informed the court that he was appearing in
the case for the first time. He said, “I have advised my clients to
change their plea which they have accepted.”
“I am therefore applying for this court to read the charges to the 2nd
and 3rd accused persons accordingly for their fresh plea,” he
submitted.
Narrating the facts of the case, state counsel Abdourahman Bah
informed the court that sometimes in May 2014 while the second accused
person was conducting a survey report of collation for Global
Organization engaged in data collection, he met up with one Jacob John
whom he said put him in contact with the first accused person for them
to conduct the survey exercise in The Gambia.
According to the prosecutor, the 2nd accused works for Facts
International Ghana Limited and was awarded the contract by Gallop to
conduct survey in several West African Countries including The Gambia;
adding that sometime in November, 2014, the 2nd and 3rd accused
persons arrived in the Gambia to conduct the survey exercise.
He said prior to their arrival into the country, they already contacted Mr. Jaw.
At that juncture, attorney for Mr. Jaw, Mrs. Combeh Gaye Corker
quickly intervened and urged the court for the prosecution to limit
the facts to the convicts. She added that her client was maintaining
his plea of not guilty.
Continuing with his submission, the state disclosed to the court that
pursuant to the survey exercise, the first accused and the convicts
procured some students from the said university and organised a
training workshop for the data collection; adding that they were
equipped with questionnaires containing 42 questions.
“Arrangements were made for these questions to be dispersed throughout
the Gambia for the data collection,” he submitted.
At that point, the state applied to tender the survey report. Lawyer
Mboge, counsel for both convicts said “I need not object to safe the
time of the court, I just wish to guide this court, this document will
be relevant to the proceedings only when the accused persons deny the
charges, then it became the duty of the prosecution to prove.”
According to Barrister Mboge, the documents were not relevant as at
that moment because there was no duty on the prosecution to prove the
allegation meted against the convicts. Combeh Gaye said admission of the said
report would be prejudicial to his clients.
“So I urge this honourable court to consider the relevance of this
document which is the bedrock of admissibility,” she explained.
Mrs. Gaye also submitted that it is premature to admit the document
at that stage and prejudicial to her client. She therefore opposed its
admissibility.
The state finally withdrew the application for the court to admit the
survey report.
The prosecutor further stated that the 2nd and 3rd convicts conducted
the workshop to conduct the survey in disregard of the law and on the
5th of November, this year the accused persons were arrested by the
National Intelligence Agency (NIA) and investigation was launched where
the first accused and the two convicts volunteer to give statements in
their own writing.
Attempt to tender both voluntary and cautionary statements obtained
from the aforesaid persons proved futile because the defence insisted
that they were inadmissible; adding that the order of the court  on
the last adjourned date for the state to furnish them with all
statements was flouted.
Upon finishing the narration of the facts, both convicts intimated
that the facts narrated by the prosecutions were true and correct.
The trial Magistrate convicted them based on their plea of guilty and
admission of facts presented by the prosecution.
Mitigation Plea: In his plea of mitigation, Barrister Mboge submitted
that the convicts are first time offenders and are brothers from the
sub- region of Ghana and Nigeria respectively.
Mr Mboge argued that the accused persons have shown that they were so
remorseful that they couldn’t control their emotions.
“In order to mitigate for sentence before this court, the convicts
have accordingly registered their businesses in this country and
regularised everything within the jurisdiction and has therefore
satisfied the requirements of count 2, 3 and 4 of the charge sheet”
Mboge submitted further that the convicts acted mistakenly for
innocent representation that registration was not required of them to
conduct the survey. He added that the court has the discretion to
impose punishment provided under section 27 of the Criminal Code i.e.
Fine,  Compensation, Cost for proceedings and sentencing to keep the
peace, or under section 29 sub section 3 b of the same Criminal Code
also empowered the court with an unfettered discretion to a fine in
lieu of custodial sentence which he said is  further buttressed by
section 34 of the Code.
Lawyer for the convicts pointed out to the court that its discretion
for proper correction measures is unfettered. He therefore applied to
tender the business registration certificates of the convicts.
“I urge your worship to exercise your discretion and impose a
reasonable fine, tamper justice with mercy to enable my clients enjoy
Charismas with their families.”
He finally urged the court to consider the nature of the offences. He
assumed that giving them the second opportunity will encourage other
businessmen to come and invest in the country; adding that the 2nd
convict is a sickle cell patient and has not been receiving adequate
medical treatment.
Speaking as Amicus curiae, Edward Gomez said he was appalled when he
visited state Central Prison Mile II during his tenure as Attorney
General and Minister of Justice; adding that circumstances at times
compel people to act beyond endurance; adding that human beings should
be treated with dignity.
He appealed to the court not to impose a custodial sentence and Gambia
shouldn’t be seen as a xenophobic country.
Sentence: Magistrate Samsideen Conteh in passing the sentence on the
convicts said “This court will tamper justice with mercy.” He added
that the convicts did not waste the time of the court and it would be
inhuman to impose a custodial sentence on them. He therefore imposed a
fine of 50,000 on each of the accused persons on all the four counts
preferred against them in default to serve one year on each of the
said counts.
The trial Magistrate further ordered for the sentence to run
concurrently but if the convicts fail to comply with the sentence for
one month then they shall serve a custodial sentence.
The case was adjourned till 14 January 2015 to proceed with the trial
of Sait Matty Jaw who maintained his plea of not guilty.