FOROYAA Newspaper (Serrekunda)
Suwaibou Touray
3 July 2009
column
We have been focusing on politics in this column with the objective to document the history of the Gambia and to help our readers appraise themselves with the happenings of the past. We are now covering issues that culminated during the coup period of 1994. This we hope will go a long way in helping us to have a better understanding of the evolution of politics in the Gambia as well as help us to forge a future genuine democratic dispensation for our homeland.
In this edition, we shall follow the judgment delivered by the magistrate, Mr. Lamin Mboge on the trial. Let us continue from where we stopped.
According to the leaflet produced by Mr. Sam Sarr on the trial describes it as one of the most interesting trials in Gambian history which came to an end on 12 October,1994; that it came as dramatically as it had started on Monday 22 August 1994. Readers would recall that Halifa Sallah and Sidia Jatta, editors of FOROYAA were arrested on Friday 19 August, 1994 and detained up to Monday 22 August, 1994 when they were charged under Decree No. 4.
Hearing started in earnest on 6th September, 1994 and continued up to 21 September, 1994 when both the accused and the prosecution addressed the court. The judgment was fixed for 12 October 1994.
THE DAY OF THE JUDGMENT
A large crowd stood outside the court room. Young boys, men and women of all backgrounds were present. The environment was a bit tense. The youths had exchanges with the po1ice. The door was closed to prevent the people from standing on the corridors as before.
An eagerly waiting, audience rose when Mr Mbenga, the Registrar, assumed the role of the court clerk and asked the court to rise as the magistrate walked in.. The case was announced. Halifa Sallah and Sidia Jatta walked into the dock. Miss Coker stood up to say that she was representing the IGP and with her were Mr Henry Carrol and Mr Essa Faal. The magistrate then proceeded to read the judgment which took about three hours. Sam describes the plea as a most electrifying plea of mitigation by each accused person that also took another hour.
The fundamental points raised by the accused and the prosecution needs to be summarized to enable the reader to digest the magistrate's judgment. Parts 8 and 9 contain the addresses
SUMMARY OF ADDRESSES
In addressing the court on behalf of the accused persons, Halifa Sallah submitted "The history of your noble profession teaches that the object of a democratic society is not to restrain or constrict freedom but to enlarge and safeguard it. The only restrains which are considered reasonable, justifiable and permissible in a democratic society are those designed to prevent the exercise of freedom by one to negate the freedom of others or to harm the general interest of a just people. The object of establishing safeguards such as the conferring on the judiciary the onerous and honourable task of determining the reasonableness and justifiability of enacting laws which may affect fundamental rights and freedoms is to ensure that individuals are protected from the arbitrary, unpredictable, elastic and absurd dictates of others".
Halifa indicated that "Section 2 of the 1970 Constitution states categorically that "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression...." that Section 22 went on to state the type of laws which could be made without contravening its spirit. He said "it holds that such laws must make provisions that are reasonably required in the interest of defence, public safety, public order, public morality or public health. Such laws may also be those that are reasonably required for the purpose of protecting the reputation, right and freedoms of other persons," that other than such restrictions, which are reasonably justifiable in a democratic society "rights can only be restricted by one's own consent."
Halifa added that "This court knows that the ultra vires principle arose in law as a fundamental safeguard against encroachment on fundamental rights and freedom and excess of authority by those in position of authority. In short, this principle enables the courts to weigh laws like Decree No. 4 against provisions protecting the fundamental rights and freedoms of persons and declare them ultra vires to such provisions as null and void.
Halifa indicated that "This court cannot exercise such an authority, nor can it be exercised by the Supreme Court which is empowered under Section 28 of the 1970 Constitution to enforce and protect fundamental rights and freedoms. According to Halifa, this is because "Decree No. 1 states categorically that the validity of this or any other Decree shall not be questioned in any court of law." He added that "section 4 of Decree No. 1 "makes the supremacy of all Decrees: absolute and incapable of being nullified in case of any contravention of fundamental rights and freedoms."
He submitted 'substantive justice therefore requires that you acquit and discharge us on the basis that under the prevailing circumstances where the validity of Decrees cannot be enquired into, we cannot be afforded a fair hearing."
In connection with count 1, Halifa submitted that "FOROYAA is registered as a newspaper"; that "Organ of political party is not known to the law"; that opinions expressed in the exhibits were fair comments not political propaganda; that their defence is that FOROYAA is published in the public interest not in the interest of a political party.
On counts 2, 3,4,5,6 and 7 Halifa submitted that the oral evidence did not confirm that they published, printed, displayed, and exposed for sale nor were they in possession of a newspaper in Banjul between 4 and 15 August 1994 in the interest of a political party. When the judgment' is reviewed, one would see the magistrate's position on the submission.
THE PROSECUTIONS'S SUBMISSION
Miss Coker said in her address that "According to Section 13 of the Constitution, the first section of Chapter 3, all rights and freedoms under the chapter are subject to other people's rights and the public interest. The section provides that each right and freedoms subjected to such limitations as are contained in the section which grants the right or freedom so as to ensure that no person's enjoyment of his fundamental right will outweigh the fundamental rights of others as well as the interest of the public."
She submitted that at most times the courts in trying to balance the interest of the individual, public interest do outweigh the interest of the individual."
Examining Decree No. 4, Miss Coker asked "Does Decree No, 4 deprive the accused persons the enjoyment of any fundamental rights and freedom particularly Section 22 of the Constitution?" She submitted no.
She added "AFPRC has by Decree No. 1 made their existence legal. Decree No. 1 has come into effect on July 22nd and they have vested themselves with powers to make laws." "So long as the laws follow the procedure of Section 8 of Decree No. 1 they are legitimate and legal. Whether they are good or bad is another matter."; that "The effect of the events of July 22nd necessarily imply that the legal order in this country has undergone some changes;" that "What Section 4 is saying is that before 22 July you had your constitution which was the supreme law, nobody could do anything in contravention of that constitution but as of today such things have changed. That constitution will now give way to other enactments now called Decrees." She submitted that "This is not the forum to question the validity or constitutionality of Decree No. 4 and even if it were such a forum, Section 5 of Decree No. 4 tied your hands since you cannot do anything." It "ousted your jurisdiction or any other court to look into the validity of decrees." She indicated that PDOIS is a party and FOROYAA is its organ and FOROYAA is issued in the interest of a political party; that political means anything dealing with mode of governance and 'propaganda' means to spread ideas with intention to persuade; that in light of the dictionary meaning the accused engaged in political propaganda. Lastly, she said "We are able to prove in fact they openly admitted that they are printers, publishers, which they sold and distributed thus contravening Decree No. 4.
THE JUDGMENT
In his judgment the magistrate first summed up the evidence of the witnesses. He then highlighted the joint address of the defense as well as the prosecution and then made his deductions and drew his conclusions on the basis of which; he delivered his judgment..
The magistrate started by indicating that Halifa Sallah and Sidia Jatta were initially charged with two counts. Count 1 was engaging in political propaganda by means of a newspaper publication, while Count 2 was publishing a Newspaper in the interest of a political party. He also indicated that the prosecutor was Miss. Amina Coker whi1e Sidia Jatta and Halifa Sallah elected to represent themselves
THE EVIDENCE
The magistrate now proceeded to sum up the evidence. According to the magistrate, First prosecution Witness was Salifu Ndure, a police officer
SALIFU NDURE (P.W.l ) That he said that he was instructed under Decree No.4 to arrest Sidia Jatta and Halifa Sallah on 19th August 1994 that on arrival at their office the two voluntarily submitted themselves to arrest; that he saw a printing machine and papers there; that the two presented them with three copies of 'FOROYAA', one -dated 8th August, l994 and another one undated and the third one he could not remember the date.
The file of newspapers entitled "PDOIS' PRINCIPLED AND JUST STAND" was admitted and marked Exhibit A The printing machine was marked Exhibit 8 and the stencils were marked Exhibit C.
The magistrate indicated that the most significant portion in Exhibit A is the following quotation: "In short, Decree No.4 of the Armed Forces Provisional Ruling Council abolishes all po1itical activities, newspapers of political parties, books, pictures, circulars, or anything which manifests political thought. Now Article 18 of the Universal Declaration of Human Rights states categorically:' everyone has the right to freedom of thought.'
Mr. M.A. CEESAY (P.W.2): That he said that he is the Registrar of newspapers; that registering a newspaper entails swearing to an affidavit and a bond that 'FOROYAA' is a registered newspaper. He produced the affidavit of Adama Bah, Exhibit D, Halifa Sallah's affidavit, Exhibit E, the bond Exhibit F and the file containing 'F0ROYAA newspapers filed at his office, Exhibit G.
The witness, indicated under cross-examination that there is no difference between a politica1 newspaper and other newspapers; that 'FOROYAA' had done nothing that contravened the Newspaper Act; that what gives it legitimacy to be a newspaper is the filing of a bond, giving two sureties and affidavits; that 'FOROYAA.' was legal until after 22nd July; that he was not instructed to de-register 'FOROYAA.'; that the' fundamental principles which give rise to newspaper publication is freedom of expression.
See next edition as we follow the judgment delivered by Magistrate Mboge on the trial of Sidia and Halifa in 1994.
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