Observer Editor and Co case set for judgment

By Lamin Sanyang

Justice Emmanuel Amadi of the Special Criminal Division of the High Court on Wednesday, 9 July, set date for judgment on the criminal trial involving the State versus Mr. Alhagie Jobe, the deputy editor-in-chief of the Daily Observer newspaper and Mr. Mbye Bittaye, an employee of Africell.

The case for judgment has been set after both parties adopted their addresses before the court. The court allows parties to make brief submissions on the issues they both raised in their addresses.

The Daily Observer Editor, Jobe, is standing trial on a five-count charge of making an act with seditious intention, seditious publication, and possession of seditious publication, giving false information to public servant, and reckless and negligent act at the special criminal division in Banjul. He is accused of publishing a seditious publication on a purported Daily Observer newspaper of 19th December 2012 to wit: that “Major Lamin Touray is on the run from imminent re-arrest and detention and charged in absentia for breach of office ethics and codes, by refusing to take orders in the execution of some people”.

Mr. Jobe’s co-accused, Mbye Bittaye is facing a single count of preparing to commit an act with seditious intention. He is said to have called Assan Sallah of Observer Company and asked him to publish a story on the Daily Observer for Samba Njie who is seeking for asylum in the United Kingdom. The two men denied any wrongdoing.

Defense Lawyer S Gaye in his submission urged the court to acquit and discharge the accused persons on all the charges, on the grounds that the prosecution has failed to prove the case beyond reasonable doubt. He argued that the first accused (Jobe) was tortured before his cautionary and voluntary statements were obtained at the National Intelligence Agency.

“It is my submission that he was tortured in obtaining Exhibit G and F1 (statements) and we urged the court to attach no weight to the mentioned exhibits. I want this court to discharge and acquit the accused persons,” said Lawyer S Gaye.

Lawyer Gaye submitted that on count one (making an act with seditious intention) the prosecution has not provided the ingredients of the said offence  considering what amounts to seditious intent, and cited the definition as provided for in section 51 subsection (1a) of the criminal code.

The defense further submitted that in an effort to prove this charge, the prosecution relied on Exhibit (B1) and Exhibit (D) in which it has been  clearly indicated that the article was authored by Ousainou Dumbuya and that the prosecution has  failed to prove this indication in the exhibits otherwise.

According to him, the first accused person has said in his evidence that the said article was supposed to be on the Daily Observer newspaper on the 19th of December 2012, but the then managing director of the newspaper, Pa Malick Faye instructed him to substitute it with an international story.

Lawyer Gaye submitted that the first accused person was merely in possession of exhibit (B1) and exhibit D (the purported Daily observer article and the copy from the first accused person’s laptop) in his capacity as the deputy editor in chief of the Daily Observer newspaper and the prosecution have not established that the first accused was the author of exhibit (B1) and exhibit D.

In the meantime, the charge against the second accused (Mbye Bittaye) the defense counsel submitted that the prosecution has failed to call a material witness namely; Assan Sallah, whose name was listed in the list of prosecution witnesses in the information filed by the state.

Lawyer Gaye went through the entire six charges one after the other, both oral and documentary evidence of the prosecution comparing it to the evidence of the defence and finally urged the court to discharge and acquit the accused persons.

However, the state counsel A M Yusuf, in his submission noted that count 1, 2 and 3 are in connection with seditious activities, and that the first accused person was arrested in February 2013, while he was in possession of exhibit D, and during the course of the investigation, it was found that exhibit (D) was prepared by the first accused in order to assist one Lamin Touray to seek for political asylum.

The state prosecutor told the court that the first prosecution witness has established that the said Lamin Touray was never a member of the Gambian Army; adding that the purported author of the seditious article Ousainou Dumbuya was just a fictitious person used by the first accused, because PW3 also told the court that Ousainou Dumbuya never existed at the Daily Observer newspaper.

The state prosecutor referred to section 3 of the Criminal Code and 153 of the Evidence Act, which he said indicates that the first accused person (Jobe) is deemed to have a seditious intention to prepare a seditious publication, saying if not exhibit D would not have been in his possession.

He said it was the former MD Pa Malick Faye who instructed the first accused (Jobe) not to publish the article which he said was the reason why the said Exhibit D was not in the archives of the Daily Observer but in the personal possession of the first accused person.  He further said Exhibit B1, which is the same content of the purported Daily Observer publication was found in the first accused person’s laptop.

The state prosecutor emphasised to the court that the prosecution has proved it’s case beyond all reasonable doubt in respect of all the counts against the accused persons.

Meanwhile, the trial judge has adjourned the case till Wednesday, 3rd September 2014, for judgment. The said trial has taken a period of almost one year, six months.