Mr. Sam Sarr, the managing editor of the Foroyaa Newspaper, on Thursday 30th July, opened his defence in the six count criminal charge against him and five other journalists standing trial at the Banjul High court before Justice Fagbenle. In his marathon evidence Mr. Sarr, defending himself, gave his evidence in chief in a calm but firm manner.

He said, "My names are Samuel Osseh Sarr. I'm a media practitioner and am the Managing Editor of Foroyaa Newspaper. My responsibility is to decide what to publish and what not to publish. Apart from publishing a newspaper, I also teach and I have been doing so for the past 33 years. I have been involved in journalism since 1987. On Thursday 11 June, I opened my email box and found a request for publication from Ndey Tapha Sosseh, the President of the Gambia Press Union (GPU). I examined the content and found that it is a reaction from what President Jammeh has said in an interview with the Gambia Radio and Television Services (GRTS). That interview dealt at length on the Ghanaians who were allegedly killed in the Gambia, but at the same time dealt with the killing of Deyda Hydara as well. Foroyaa recorded the interview of the president and I have a recording of that interview here. I would like to tender the video cassette recording of the interview with President Jammeh".

At this juncture, the DPP, Mr. Richard N. Chenge rose up and objected to the application made by Editor Sam. DPP said, "No proper foundation has been laid about the cassette. May be the accused person is not a lawyer that is why he did not know the procedures". Justice Fagbenle overruled him and admitted the video cassette as defence Exhibit 6A.

Sam continued, "We also published a summary of the said interview in our edition number 66/2009, dated 8-9-June, 2009. In that article entitled "President Jammeh on the killing of Ghanaians," as well as the summary statement on Deyda Hydara. We also promised to publish the full text of the interview in the next issue. As at that time the transcription of the said interview was being done but was incomplete". The said Foroyaa publication was tendered and admitted as defence exhibit 6B, without any objection from the DPP. Sam told the court that he would like to read a paragraph of the Foroyaa publication tendered from Jammeh's interview, which he did to the hearing of every one in court.

He continued, "Our approach in Foroyaa newspaper is to ensure the publication of divergent views and dissenting information. So when I received the GPU statement from in my box I took this into account and reflected to certain statements by President Jammeh in his interview and the fact that Ndey Tapha Sosseh, being the president of GPU is specifically concerned with the issue of Deyda Hydara. I considered it unfair not to grant her access for publication on a pertinent issue like this. I did not consider the publication to be a hit back on the president, but rather the president has expressed his views and Ndey Tapha Sosseh, the president of GPU should also be allowed space to express her views. What we expect in major issues that are of concern to the general public should be handled through debate and not offense".

"My lord, I always guided by good faith in the public interest and in pursuit of the truth. My lord, newspapers have a responsibility to scrutinize the executive and occasionally such criticisms have effect. Our publication on the issue of collection of dues by some people who claimed to be doing it for July 22 celebrations, the authorities issued a warning for it to be stopped. That is the role of the media in a democratic society.

At this stage Mr. Sarr asked the judge whether he could play the cassette but he was asked by the judge to wait till later. He continued thus:

On 15th June, while I was teaching in the evening, I was arrested by 3 NIA officers led by PW2. I was taken to the NIA headquarters where I was detained up till the 18th June. I had never been told the reason for my arrest or my right to a legal counsel. On 16th June, 24 hours after my arrest, I was taken to the conference room and asked to write a statement. And when I asked for what reasons, I was told that it is concerning the publication contained in exhibit A, (Foroyaa newspaper). I told them that am a publisher and I have not seen anything wrong in what was published. That is how it went on till we were taken to court on 18th June". He read out the entire GPU statement from Foroyaa publication to the open court.

"The Gambia Press Union wishes to express its shock and disappointment over the inappropriateness of the provocative statement of the head of state, President Jammeh, on GRTS, Tuesday night in relation to the death of veteran Gambian journalist, the late Deyda Hydara.

It is rather unfortunate and the Union is indeed saddened that the second time the head of state has so chosen to discuss the death of Deyda Hydara; he again, has dwelt on the issue of character assassination and ridicule.

We find it most unfortunate that the champion for the promotion of Gambian and African culture, traditional norms and values, and someone, who claims to have total respect for religion in particular, Islam, President Jammeh finds it appropriate to ridicule and to speak ill of the dead. Such behaviour and countenance is most unreligious, un-cultural and certainly discredits traditional African norms and values!

The Union need not remind President Jammeh that it is difficult to presume that the Gambia Government is concerned over the death of Deyda Hydara unless and until the Gambia Government and its relevant security institutions are seen to be determined and resolved to seriously commit themselves in a professional manner to embark on investigating the events that led to the death of our dear colleague and brother.

We also wish to bring to the attention of the head of state that the Government of The Gambia and its relevant Security Apparatus have the primary responsibility to ensure the protection of each and every Gambian life and therefore the murder of any Gambian should be an issue of paramount concern and curbing such a menace a priority. Mere statements and or speculations and ridicule, such as the events leading to the death of Deyda Hydara, cannot and will not be accepted as exoneration of the Gambia Government, neither by the Union, international journalist associations, the Hydara family or other interested parties. The death of any Gambian, more so one who was most vocal on issues of human rights, freedom of expression and the development of the country in general, even if it meant clashing with the powers that be, can only be deemed suspicious until such a time that the state can logically, reasonably, factually and forensically, and within the shortest possible period prove otherwise.

We demand an investigation of fact and forensics spearheaded by the Gambia Government. Should the relevant government institutions not have the resources or wherewithal to carry on with the investigations, we at the Gambia Press Union think it is time that you publicly admit that and invite other states and international policing and security institutions such as Interpol, who already have a desk at the Police Headquarters to take over the investigations.

It is almost certain that the trail has gone cold in the past Four and a half years but the main pieces of the puzzle being the bullets which were or should have been retrieved during post mortem and the post mortem report will certainly go a long way in aiding the continuation and or recommencement of the investigations. Motives and related issues can wait for a later date! Right now our preoccupation is that the perpetrators of this murder most foul be brought to book.

Mr. President the venom with which you spoke about the websites with a picture of the slain journalist and the slogan "Who Killed Deyda Hydara" is alarming. We are very much aware that the issue be kept alive and until such a time that his killers are brought to book, this slogan and its accompanying image will remain on the website of the Union and that even then, we will coin a statement fitting to forever haunt the perpetrators of this heinous crime!

The killing of Deyda Hydara, if nothing else, has only strengthened the resolve of true journalists to remain steadfast, truthful and committed to speaking in defense of the weak and the vulnerable.

On a second note, we are quite surprised that you claim there is Freedom of Expression in The Gambia. Mr. President, we beg to differ, the legal environment in particular the Newspaper Amendment Act 2004, the Criminal Code Amendment Act 2004, the Criminal Code (Amendment) Act 2005 and the recently passed Communications Bill 2009 make it practically impossible to practice efficiently as a journalist and yet remain within the ambits of the law.

The laws notwithstanding, the disappearance of Chief Ebrima Manneh, the continued prolonging of unnecessary court cases of journalists and media practitioners, arbitrary arrests and detention, harassment of Gambian journalists especially the episodes of 2006 leave a lot to be desired re: the state of freedom of expression in The Gambia.

We therefore call on the Gambia Government to respect, promote and defend the rights of journalists, notably by bringing an immediate end to the unnecessary and continued embarrassment and harassment of journalists; to create the enabling environment for the development and full participation of the independent media, the fourth estate, by repealing the current media laws which criminalize media offences amongst a host of other detrimental issues and to pass new and progressive media related laws such as Freedom of Information and Access to Information Acts which amongst other provisions guarantee freedom of the media as stipulated in the regional and international treaties such as Article 19 of the Universal Declaration on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights to which your Government is signatory.

We also propose, in good faith, that your Government seriously look at strategies geared towards engaging and collaborating with the independent media to enhance and strengthen independent media participation and to enable the expansion of the space for divergent views and healthy debate."

He said, "My lord, considering the concluding paragraph and after a careful examination of the GPU statement, I found out that it is not seditious or defamatory and the issue that were raised in the interview are issues of concern to all. So I decided to publish it. My lord, I would like to make some references if the cassette is played. I will extract one or two statements from it made by President Jammeh. This document I am holding is the exact transcript of the interview with the president as contained in defence exhibit 6 A. I have gone through it and found it to be accurate".

At his point, Sam made a signal for a TV and video player to be brought in court for the said interview with president Jammeh to be played in open court. Justice Fagbenle told him that he did not see it necessary to play the cassette as far as it contains the same information in the bundle of documents which were tendered as defence Exhibit 6 C.

Editor Sam applied to read 5 paragraphs at page 1, 2 and 3, from line 6 and page 14, the last paragraph". His application was granted. He then read the following from the transcript of the president's interview.

"But the bottom line is at that time also you remember I was supposed to be the Chairman of ECOWAS and Deyda Hydara was shot. And Then they said it is the Gambia Government; Oh Yahya Jammeh killed him, and one of these stupid websites they said 'Who killed Deyda Hydara?' Let them go and ask Deyda Hydara who killed him, not me.

Anyway, what is important is that they use that and there was a so-called Press Freedom Conference held in Dakar organized and most of the times they come with outrageous resolutions against the Gambia that there is no press freedom in the Gambia. God has vindicated me today. Whether there is press freedom in the Gambia the Gambian people know .

And what is even amazing, the eye witnesses to the killing of Deyda Hydara are still in Senegal. All attempts made by the NIA to interview them failed. Yet still they said yahya Jammeh killed him. Somebody from the international community wanted to engage me in discussion, I told him 'tell me, they have said that we killed Deyda Hydara, did they tell you the reason why we should kill him, because all the time they have not given us any good reason why we should kill him, and the civic societies should do an investigation as to why they are keeping those two ladies who were eye witnesses to the scene and still expect our security to get information when they could not even have access to the eye witnesses. The eye witnesses were questioned here and they gave their statements and then they were taken to the RVTH, where they disappeared into Senegal. The last time they went there, they could not have access and talk to them without minders from the Senegal.

So anyway 'Who killed Deyda Hydara?' And by the time Deyda Hydara died, the investigation has revealed that one of the ladies who was involved with him, who was in the car with him, her ex-husband was in The Gambia, a Senegalese, for that matter, who was trying to negotiate for reconciliation for her to go back to him. This particular gentleman left at 10 O'clock in the morning after they discovered that Deyda Hydara has been shot. Up to date, we could not have access to that person to question him.

So how could they just sit there and say 'call the FBI', 'call the MI5' to come and investigate. After all, they have never invited a foreign group to come and investigate. A case of a Gambian who has died, our security forces are competent enough to investigate and so far they are investigating into murder cases and have come up with suspects, some of whom, have been tried. So why we do not have access to the eye witnesses and they want us to bring FBI and others to come and investigate. Who is going to pay it anyway? So that is the bottom line."

He continued: "At the time of the publication I took into account the inaccuracies in the interview which I just read out and bore in mind in particular, the issue of the Senegalese and the absence of the two ladies who were in the same vehicle with Deyda Hydara. I asked myself the question whether the president was properly informed and felt that by publishing that article, the NIA and the president would reflect on their work and conduct the necessary proper investigations into the matter. My lord, I considered it in the public interest that the matter be published and the alleged defamatory and seditious publication is in reality an expression of the opinion of the GPU president. We feel we could serve as a valuable advice for both the president and the Government of the Gambia. Before the publication of the alleged defamatory and seditious matter, I had discussed with no other, no one communicated to me about the matter, apart from the email that I received from Ndey Tapha Sosseh. I have not forwarded the statement to anybody, be it an individual or a website or a newspaper. I simply published it because that is my job, to publish.

My lord, it is clear from my conduct and the circumstances of this case that I had no intention to bring into hatred, contempt or to excite disaffection against the person of the president and the Government of the Republic of the Gambia. In fact, that is not my style. Hate and division does not go with the progress of society. What is of value is the information that is of value to the society and ensuring access to divergent views and dissenting views. To give meaning to the alleged defamatory statement that it means that the statement is accusing the president and the Government of The Gambia for being responsible for the death of Deyda Hydara, is unreasonable. No reasonable person can draw that conclusion. I had no intention to defame the president or government of The Gambia. The alleged defamatory statement is not derogatory, not contemptuous and not insulting. It does not ridicule any body. That is my evidence in Chief," Sam concluded.

During cross examination by Defence Counsel Lamin S. Camara on behalf of Ebrima Sawaneh, Pap Saine, Sarata Jabbi-Dibba, Pa Modou Faal and Emil Touray; Sam said he is not a member of GPU due to his position in Foroyaa newspaper. He added that he had never applied to be a GPU member. He added that by virtue of his position he is only an adviser to GPU. Camara asked, "Are you telling the court that the publication of both Foroyaa and Point Newspapers in (Exhibit A and B) are reactions to defence exhibits 6A and C". Sam said, "That is correct". Camara asked, "Is it correct that the seventh accused person (Emil Touray) has not been coming to work prior to the publication with regards to his health and lack of eye lens". Sam said: "That is correct. He is involved at Foroyaa as assistant editor and he edits from the computer and if he does not have lenses he seriously strains his eyes. We arranged for him to see an eye specialist and I asked him to wait until the lenses is available".

When the DPP stood up to cross examine Sam, he first said: "Oh! What a truthful witness. So truthful, down to earth. Are you a born again Christian? All what my lord wants is the truth and the whole truth". Sam only smiled at him, evoking laughter and murmuring from all angles of the court. Even Justice Fagbenle giggled at that. The DPP R.N Chenge asked whether GPU statement was first published in the Foroyaa before Point newspapers, Sam said yes. DPP said, "Many people are aware of it and they called you," Sam said, "That is correct". DPP said, "All the accused persons called you to discuss". Sam said: "That is not correct. I'm here to speak the truth. In reality this is not correct". DPP said: "You were annoyed by the statement of the president". Sam said: "That is not correct". DPP said, "Then are you happy with it?" Sam said: "Is not a question of happiness. This is an opinion and access should be given to it". DPP asked: "Where the president said they should ask Deyda Hydara who killed him, are you happy with that?" Sam said, "Am not part of the statement, but am not happy, because the statement is inappropriate especially from the head of the state. Afterwards, our publication did not focused on that". When DPP asked what exoneration means, counsel Camara objected to that question and immediately cited an authority. Justice Fagbenle asked him to sit down because the question is not for his clients. He told Camara that he could not be heard at that point. Camara insisted that he has a right to be heard and cited section 240 of the criminal procedure code as if a non represented accused person is standing trial with those with representation, the counsel representing the others has a mandate to protect the non represented accused person. The DPP then stood up and argued that Camara should sit down and avoid arguing with the court. Camara accused DPP of indicting him for stating that he was arguing with the court. He stressed that he had cited an authority in accordance with the law.

DPP continued: "That means the government is not clear off the killing of Deyda Hydara, is that sure?" Sam said, "Am not the author of the statement. The statement is conditional. The statement is saying, if you do not stop the character assassination and focus on the investigation, then you cannot be exonerated. This is conditional". DPP asked: "Has any GPU member come to you or have you received a letter from any of them to disassociate them from the statement?" Sam said: "I received no such letters and none of those people have considered the article as seditious and defamatory". DPP asked: "Your newspaper is widely read in the Gambia and in the whole world. Your intention is for the public to read it and make reaction to it?" Sam said, "Thank you for saying Foroyaa is read in the whole world. It matters that people do react to some things in the Gambia sometimes and in the world. That is why we are concerned that what we publish should be in the public interest". DPP said: "Thank your very much Mr. Sam Sarr for being a truthful witness". Sam replies: "Thank you too". There was murmuring and you can notice smiles on the faces of the court attendants.

Mr. Sam Sarr called a witness in his defence, an Oustas (Arabic Teacher). The witness Karamo Ceesay told the court that he is verse and knowledgeable in the Holy Quran and Hadith (Teachings of the Holy Prophet). Sam asked him: "What are the teachings of Islam in speaking evil about the dead?" Oustas Ceesay Quoted from the Holy Quran from "Suratul Nahal" Verse 90. He stated that God commands humans from saying or speaking ill and evil against one another and within relatives especially the dead. He added that in a Hadith, the Prophet, Peace Be Upon Him (SAW) Muhammed advices people to desist from speaking bad about faith. It is contained in a book called suwari minhayati Sahaba" which stated that when a person dies, his bad deeds should not be said against him. Oustas Ceesay added that the Prophet has taught that evil things committed by the dead should not be uttered against them. He added that any insult directed to a dead person back fires to those on earth, because insults do not reach the dead. He said that that is what Islam teaches.

DPP in cross examining the witness asked him to give an example of insult to the dead. Oustas Ceesay said: "if you say that the deceased was a bad man or a foolish person that amounts to an insult. For some one to say 'go and ask the dead who killed him' is a bad comment and it means the deceased has been belittled and looked low upon. DPP again said: "Then people, who can call the dead and talk to them, are you saying those people insult the dead too?" There was a general laughter and loud voices in court. Oustas said, "Am not aware of that and I never believed in that". DPP said, "If I have the capacity to rise up the dead and talk to them, am I insulting them?" Oustas Ceesay replies: "That is not to my knowledge. If that is possible, then it may not be an insult".

Sam Sarr the re-examines the Oustas and asked: "If some one is dead, is it an insult to say to the relatives to go and ask him (the dead) who killed him?' Before Oustas could answer, Justice Fagbenle rejected that question. Mr. Sarr closed his case at this stage.