FOROYAA Newspaper (Serrekunda)
Uwaibou Touray and Ousman Sillah
11 July 2009
The seven journalists charged with sedition and defamation are yet to take their plea before the High Court.
When the court clerk started to read the charges at the High Court on Wednesday, Mr Antouman Gaye, the lead counsel for six of the defendants objected to the defendants taking their plea on the ground that they are defective. The sixth accused, Mr Sam Sarr took the same position.
The high profile trial of the seven journalists, accused of seditious publication, conspiracy to publish seditious publication, defamation of character of the president and the state, proceeded at the High Court before Justice Joseph Wowo on Wednesday, 8th July, 2009. The seven accused journalists are Ebrima Sawaneh, News Editor of The Point newspaper; Pap Saine, Editor of The Point newspaper; Sarata Jabbi Dibba, GPU Vice President; Pa Modou Faal, GPU Treasurer; Abubacarr Saidykhan of the Foroyaa; Sam Sarr, Managing Editor of Foroyaa newspaper, and Bai Emil Touray, Secretary General of GPU.
When the case was called, amidst a fully packed courtroom, Mr. Ricard N. Chenge, Director of Public Prosecution (DPP) announced that he is representing the State.
Lawyer Antouman A.B Gaye also stood up to announce that he is representing all the accused persons except the 6th and that with him are lawyers Lamin Camara, Neneh Cham-Chongan, Jai Coker and Hajum Gaye.
Mr. Sam Sarr, the 6th accused person, announced that he is representing himself.
Justice Joseph Wowo, the trial judge, started by saying that at the last adjournment date the accused persons did not take their plea; that they would start with the taking of plea. He asked the clerk to read out the charges to the 7 accused persons. After reading the first count, Defence Counsel Gaye informed the court that all the five charges are defective and that the accused persons are not pleading to all the charges.
DPP Chenge argued that the accused should take their plea for the case to proceed and that the objections would come later. He said "justice delayed is justice denied."
Justice Wowo said at the last sitting he made an order for the defence to file a formal application on the objections raised but that he had not seen anything on that.
Lawyer Antouman Gaye
In response to the DPP, lawyer Gaye submitted that the objection to any purportedly defective charge should be made before the defendants take their plea and he cited section 161A of the Criminal Code to support this position.
On the formal application, he told the Court that it has been overtaken by events since the case it was referring to had been withdrawn by the prosecution from the Kanifing Magistrates Court.
On the objection, Defence Counsel Gaye said "Let me start by saying that with regards to counts 1, 2 and 3 on the indictment, we have not been served with any notice, both the accused persons and the counsels; that the Attorney General has not given a Fiat giving her consent for these charges to be brought."
Lawyer Gaye cited section 53 sub sections (2) of the Criminal Code which, he said, states that a person cannot be brought to court under section 52 without the consent of the Attorney General. He added that he is not aware of any amendments made to this particular section.
"I submit, with all due respect, that Counts 4 and 5 are equally defective," said defence counsel Gaye.
He said Count 5 is clearly wrong; that Counts 4 and 5 are interlinked and dependent; that section 178 of the Criminal Code has been amended by the Criminal Code (Amendment) Act 2004. He read the amended Act and said section 178 is no longer punishable under section 34.
Counsel Gaye further argued that counts 4 and 5 are legally wrong; that the defamatory words are not particularized so that the accused will know what charges they are supposed to face.
"We urge the court to put the prosecution to task.
Lawyer Gaye also submitted that it is oppressive to make a substantive charge on an offence and charge the accused with conspiracy to commit the same offence. He cited the 1968 case of Lartey vs the Republic- Ghana Law Report to support his argument.
Coming back to count 2 (Publishing Seditious Publication), he argued that it is 'Duplicitous' for providing several offences in one count. He said an accused person must know precisely the offence for which to come to court. He said that the same applies to count 3.
Mr Gaye also submitted that the charge does not contain the alleged defamatory statement. It is not enough to cite a paragraph or a part of the defamatory article but the whole defamatory article must be brought to court and be told to the accused persons.
Mr. Sam Sarr's Submission
Mr. Sam Sarr, the sixth accused person, in his submission on the issue of the preliminary objection to the charges raised by Lawyer Gaye, associated himself with the submission of the defence counsel. He submitted that all the five counts are defective on the face of it.
Mr. Sarr submitted that in addition to the points raised by Mr. Gaye, the particulars of counts two and three disclose an offence not known to the law. He noted that while the particulars of counts two and three talked about "caused to be published", section 52 (1)(c) talks about "publish". He pointed out that the two are not the same.
Mr. Sarr also drew the attention of the court to a further amendment of the Criminal Code that is the Criminal Code (Amendment) Act 2005, which imposes a minimum fine of D50, 000 and a maximum fine of D250, 000, and /or imprisonment for a minimum period of one year.
DPP Chenge
The DPP applied for an adjournment in order to respond to the points raised on the preliminary objection by the defence. As for the notice of Fiat, he promised that the defence will be served.
Justice Wowo told the defence counsel that he was informed that the court had the notice in its file and that he will make it available to them.
Lawyer Gaye responded that accepting this would make 'nonsense' of his objection on the matter. He emphasized that as long as they are not served, the notice does not exist; that there is no fiat from the Attorney General.
The Judge asked the DPP to be ready and that he was going to make progress in the next proceedings.
The case was adjourned till Friday, 10 July.
The proceeding was witnessed by the US Ambassaor, Mr. Barry Wells, a representative of the International Bar Association, Mr Paul Richmond, as well as media colleagues, friends, relatives and well wishers of the defendants.
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