By Kebba Jeffang
He was addressing the court on Monday, 11th May, 2015 in the trial of Sheikh Muhideen Hydara and Buyeh Touray, the Caliph General and the removed Alkalo of Darsilami Sangajor.
When the matter was called, the state was represented by Chief Inspector Camara and Sub-Inspector E. Sarr whilst Lawyers Antouman Gaye and Lamin K. Mboge appeared for the accused persons.
Earlier in the address, defence counsel Mboge submitted that the case is a clear manifestation of abuse of power and authority. He said the charge sheet before the court states that the accused persons have jointly disobeyed lawful orders of the President by refusing to perform Eid-Ul Fitr prayer on the 28th July 2014 as announced by the GRTS and instead performed it on the 29th July, 2014.
He said the first count is conspiracy which has the same particulars with the second particulars as mentioned above. He indicated that the evidence and the charges before the court are at variance and that the evidence does not support the charge sheet.
“The first prosecution witness (PW1) is the Chief of Foni Kansala and has told the court that he was called by Dembo Badjie, Chief of Foni Bondali, that he got information that any village that didn’t pray on Monday should not pray on Tuesday, July 29. The funniest part of the prosecution evidence is that PW1 said he received a telephone call from Dembo Badjie who said he got information from the Governor of West Coast Region that the President said any village that did not pray on Monday shouldn’t pray on Tuesday. This is hearsay. None of these people were in court to testify as claimed by PW1,” said Mboge.
Defence Counsel Mboge further submitted that PW1 also said in court that he has sent his badge messenger to the Imam and Alkalo of Sangajor and that he relayed the information to the Alkalo (2nd accused) but not the 1st accused. He said PW1 admitted before the court that religion is a personal matter and people pray Edu-Ul Fitr on different days. He said this leads to a question of why the accused persons were picked out from the rest. This is discrimination!” he said.
“PW2 Seedy Gibba (badge messenger) made glaring admission before this court that he has never been arrested for or not praying at all. He conceded that even last Tobaski he prayed on Saturday and while others prayed on Sunday and that no arrest was effected. The witness also admitted that the police don’t have power to arrest someone for not praying on a particular day. The witness also said he was surprised that the accused persons were arrested, charged and brought to court for praying to God. He also conceded that we all pray to God only who created all of us including those ordered for their arrest. I submit that the first accused person has been wrongfully arrested because the message from PW1 was not directed to him but to the late Imam Malign Hydara. This leads to a question of how can the 1st accused conspire and disobey lawful orders,” said lawyer Mboge.
Lawyer Mobge added that PW3, a police officer who arrested the accused persons has also made clear admission in favour of the accused persons. He confirmed to the court that it is the religious leaders that make religious decisions and had conceded that it is not an offence to pray any day as far as he knows. He also conceded that there is no compulsion in religion and the performance of Eid prayer is based on sighting of the moon by the people.
“I submit that there is nobody who can compel the accused persons to see the moon when they didn’t see it,” counsel Mboge said.
Mboge said the accused persons in their defence maintained that they didn’t see the moon on the 28thJuly but was sighted the following day and they prayed on Tuesday. He said this act has never been heard in the face of the universe. The first accused informed the court that he was arrested and detained for four days at different police stations without knowing the reason for his arrest. This is his Constitutional right of fair hearing and he was denied of it.”
Meanwhile, senior counsel Gaye in addressing the court on legal aspects of the case asked; “What are those lawful orders that were disobeyed?” He said according to the Exhibit tendered by the 3rd defence witness (DW3) Bai Baboucarr Sanyang, the Deputy Director General of GRTS, Shiekh Ebrima Jagana was quoted as saying the announcement is from the Supreme Islamic Council (SIC). “Where is the evidence that it is from the President?” he asked. He said they are simply religious leaders and other than that they have no power of making laws and have no authority to order for arrest.
“Disobedience to lawful orders, the operative words or ingredients is lawful order. To carry out any arrest, you have to be duly authorized. The police failed to bring the ‘order’ that involved my clients’ offences. The announcement even it is made by the President is not a law. For an order to be lawful they have to satisfy certain things. It must have been authorized by (1) National Assembly, (2) a written law of the state, (3) a statute, (4) regulation or promulgation. Only these can be lawful orders. In the absence of these four things, this court has no jurisdiction to try these people because the essential elements that constitute the offence are absent,” submitted Gaye.
He said the offence does not even qualify as an incoherent offence because it fulfilled less certainty, a requirement of criminal law and if there is no certainty there is no offence.
“My clients are entitled to be acquitted and discharged because they have truthful evidence backing them. The prosecution has failed to prove their case beyond reasonable doubt. Where is the law that their evidence is based on?” He asked.
He concluded that section 25 of the 1997 Constitution guarantees the freedom of practicing and manifestating of one’s religion.
“From September to now we have been struggling, waste of national resources. Here it is all down to a storm in a tea cup,” lawyer Antouman Gaye submitted.
At this juncture, the matter was adjourned till the 18th May, at 1pm for prosecution to address the court.