Former CDS Col. Ndure Cham masterminded the March 21st abortive coup

On the 21st March 2006, the government of the Republic of The Gambia announced that it has foiled a coup de ta to topple the country’s democratically elected government. Several people, mainly senior military officers, were arrested and, with the exception of a few, charged with offences ranging from treason to concealment of treason.
Under the 1997 Gambian Constitution, the offence of treason is punishable up to life imprisonment or even by death depending on whether violence resulting to the death of another was occasioned.

The military officers were arraigned before a military tribunal headed by Justice Emmanuel Akeyome Agim, an Appeal Court Judge (as he then was), while the civilians were tried at the regular High Court.

The Tribunal found all the military officers guilty as charged and sentenced them to various prison terms including life imprisonment. None of them was, however, given a death sentence.

Prior to their trials and the subsequent convictions, the state owned radio and television services, GRTS, made a broadcast of purported confession statements from the accused persons admitting to their alleged crimes. These confessions later constitute a fundamental part of the prosecution’s case and thereby forcing the defence to attack their admissibility citing very serious concerns about their voluntariness.

The Tribunal responded by employing the ‘vior dire’ instrument as a means of determining the voluntariness or otherwise of the said confessions. Vior dire is a legal instrument normally employed during trials to determine the admissibility or otherwise of confession statements of which factual issues about the manner in which they were obtained frequently arise. It is sometimes referred to as  ‘trial within a trial’.

Why are the confessions significant

Any adverse admission relevant to the issue of guilt in a criminal proceeding is known at common law as ‘confession’. Although subject to the overriding consideration that they must be obtained voluntarily, confessions are one of the most reliable evidence that can be produced before a court of law. The underlying justification for this view is that a party would not voluntarily make a statement adverse to his/her case unless it is true. Therefore, if the confessions adduced by the state during trial were obtained voluntarily, they would not only be admissible in evidence but would also be one of the most reliable evidence any court of law or tribunal would seize upon to hand down a sound conviction.

Are the confessions voluntary

It is a fundamental requirement at common law that the admissibility in evidence of any confession statement against any person, equally of any oral answer given by that person to a question put to him by an investigating authority e.g. a Police Officer, and of any statement made by that person that it should have been voluntary in the sense that it has not been obtained from him by fear of prejudice, hope of advantage or by oppression. [See Ibrahim v. R [1914] AC 599]. Thus, the confessions adduced in evidence by the prosecution cannot be said to be voluntary if they were obtained by means of the aforementioned either exercised or held out by a person in authority.

Testimonies

In their testimonies, almost all the accused persons contended that their confessions were obtained by means of torture including electrocution.

2nd Lt. Pharing Sanyang stated that the investigating panel presided over by one Mr. Momodou Hydara, a senior intelligence officer at the National Intelligence Agency (NIA), had asked him to write a confession statement to the effect that he knew about the coup and was part of it but that when he refused, he was fixed to two electric wires and got electrocuted. He further stated that it was as a result of the terrible pain he endured from this cruel ordeal and an advice from one Capt. Martin to the effect that writing a confession statement was the only way of saving his own life that he eventually wrote one.

Ms Mariam Bah-Darboe, the wife of Capt. Yaya Darboe, testified that she had found her husband with a swollen face during her first visit to his place of imprisonment. This was corroborated by the testimony of a Medical Officer from the Optical Unit of the Royal Victoria Hospital (Now Edward Frances Small Teaching Hospital).

Capt. Bunja Darboe, an Ex- Army Spokesman, also testified showing several scars on his head which he attributed to the alleged torture he endured in the hands of the soldiers assisting the investigation.

Capt. John Mendy, Ex-commanding Officer of Fajara Barracks, made similar claims albeit in his case, according to Capt. Mendy, the alleged torture did not prevail saved for inducing him to lie that he knew about the coup through one RSM Alpha Bah. Capt. Mendy went on to testify that he was later persuaded to sign a pre-drafted cautionary statement after he was giving assurance that he would be freed and charges against him dropped in exchange for his service as a prosecution witness. In other words, the investigating authorities had exercised and/or held out an advantage of hope as a means of obtaining a confession statement from Capt. Mendy.

These are very serious allegations which if proven could render the confessions inadmissible in any court of law on the grounds of being involuntary. This may as well bring the prosecution case on to its knees and thereby potentially leading to the acquittal of the defendants unless independent evidence strongly pointing to their (the defendants) guilt beyond all reasonable doubt is adduced.

It is to be noted that the mere fact that the defendants alleged that their confessions were involuntary does not necessarily mean that the trial judge should or ought to have refused their admission in evidence. The allegations would have to be proven notwithstanding any suspicion they may have generated over the credibility of the prosecution’s case. It is for this reason that the ’vior dire’ instrument had to be employed as a means of availing the Tribunal the opportunity to investigate the issue.

Standard of Proof

In a criminal case, the standard required to proof the defendant’s guilt is ‘Beyond reasonable doubt’. The same standard of proof is required of the prosecution in relation to questions of admissibility relating to secondary facts such as the voluntariness or lack of it, of a confession statement. If for any reason the burden of proof on an issue affecting guilt is shifted to the defence, it is not necessary for that issue to be proven beyond reasonable doubt. In that case, the standard required of the defence is nothing higher than the burden of proof that would normally rest upon a plaintiff or claimant in a civil proceeding, i.e. ‘on a balance of probabilities’. [See R v. Carr-Briant [1943] KB 607].

Given that it was the defence who asserted that the confessions were involuntary, they must therefore shoulder the burden of proof to that effect. In other words, the burden of proof at this point had shifted to the defence. Therefore, if after hearing submissions from both parties in the ’vior dire’ and base on the evidence before it, the Tribunal was in a position to conclude that on a ‘balance of probabilities’, the confessions were obtained by means of torture, oppression and/or an exercise of an advantage of hope, it should have concluded that the confessions were involuntary and therefore inadmissible. To thwart this, the prosecution must have proven (the rebuttal) “beyond reasonable doubt” that the confessions were voluntary.

Was the right test applied

In his ruling, the Judge Advocate found, in the case of the 2ndand 4th accused Capt. Yaya Darboe and 2nd Lt. Pharing Sanyang respectively, that the allegations of torture and duress meted out against them were not proven beyond reasonable doubt. He justified his conclusion by citing two incidents in which the wife of the 2nd accused, Ms Mariam Bah-Darboe, contradicted herself, implying that she was not credible. He also stated that the optical lenses prescribed and bought for the accused were not tendered in court as evidence.

The learned Judge Advocate further stated that the claims of 2nd Lt. Pharing Sanyang that he was stabbed with a bayonet and his head hit with a pistol was not proven by any medical report.

It is explicit in the above that the learned judge had applied the test of ‘beyond reasonable doubt’ to reach his conclusions. This is clearly a misapplication of the substantive law on standards of proof as this test is only meant for the prosecution to satisfy.

Given that the burden of proving the allegation of torture in this case resides on the defence, the learned judge should have applied the civil standard test of ‘on a balance of probabilities’. Not doing so was misdirection.

Conclusion

Suppose the learned Judge Advocate had applied the civil standard test of ‘on a balance of probabilities’, would he have considered Ms Darboe’s trivial contradictions as mere attributes of a traumatized wife so overcome by grief that she could not pay greater attention to every trivial detail of the physical wellbeing of her battered husband, or would she still be dismissed as a lying wife of a renegade soldier even though substantial part of her testimony were corroborated by a medical expert witness; would it have been required of the defence to tender her husband’s prescribed optical lenses to make the testimony of the medical expert witness watertight?

Would the learned Judge-Advocate also not have accepted the wounds on 2nd Lt. Pharing Sanyang which he himself examined, as evidence of torture despite not been backed by a medical report and especially given that the prosecution did not offer any alternative explanation or suggestion as to the possible cause(s) of the accused person’s injuries?

Whether answered in the affirmative or otherwise, the fact remains that there was a grave misapplication of the law on an issue that was so fundamental to the question of guilt. That makes the convictions unsafe and should have been quashed.

SS Daffeh
Leeds, UK

Ends

 

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