4 June 2012

Gambia: Marabout & Co Convicted

Justice Emmanuel Nkea of the Special Criminal Court in Banjul has convicted and sentenced two people, Bafoday Sisawo, a marabout and Fabakary Gassama for the offence of destruction of evidence.

The convicts were indicted on two counts of criminal offences with accessory after the fact to murder and destruction of evidence, contrary to Sections 202 and 101 of the Criminal Code Cap 10:01 Vol III, Revised Laws of The Gambia, 2009. The particulars of the offence stated in count one that on the 12th day of May 2010 at Farafenni, the duo reserved and assisted one Lamin Gaye knowing that he had committed the offence of murder, in order to enable him escape punishment.

The convicts on count two were said to have, at the same place and time, removed a broken pestle and thrown the same pestle into a pit latrine with the intent of preventing the said pestle from being used in evidence. They had pleaded not guilty to the offence, and the prosecution led by the deputy director of Special Litigation, Simeon Abi led evidence through four witnesses and tendered a host of exhibits in support of the indictment.

The duo both gave sworn evidence in their defence.No exhibits were tendered on their behalf and no witnesses were called to testify in support of their defence.

The prosecution's case asserts that on or about the 12th day of May 2010, Lamin Gaye assaulted and killed one Modou Tunkara late at night, just outside the Farafenni residence of the convicts, and later rushed into the house of the 1st convict. The 2nd convict and PW2 joined in later. Lamin Gaye had some injuries on him and the two convicted persons assisted him to clean up the wounds.

The convicts and PW2 later went out of the compound with the aid of torch light from the 1st convict, and they indentified a dead body beside the road. This was the cadaver of Modou Tunkara. The 1st convict instructed PW2 to pick up some pieces of wood (broken pestle) and the duo later went towards the direction of the toilet.A broken pestle was later recovered from the toilet by agents of Fire and Rescue Services.

The said pestle was tendered in evidence as exhibit 1, and photographs taken during the recovery exercise were tendered in evidence as exhibits 2 (a-d). The statements recorded from the convicts during the investigations were tendered in evidence as exhibits, 3, 4 (a-c). Both the convicts had denied the charges against them, and the 1st stated that Lamin Gaye forced himself into his house that late night with injuries on him, said to have been sustained in a fight in which he killed a witch.

He went out with PW2 and the 2nd convict, where they noticed a corpse laying on the side of the road.When they returned into the compound he admonished Lamin Gaye and ordered him to leave his house.He left for Karantaba, his village of origin but was later arrested the next day by the police. The testimony of the 2nd culprit is similar in every material particular with that of the 1st, but that instead he went to work at the ferry terminal the next day.

In his judgment, Justice Nkea defined the term an accessory after the fact according to the black law dictionary as one who, knowing that a felony has been committed by another, receives, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment.

Justice Nkea averred that the prosecution was required to prove that a murder was committed by Lamin Gaye, that the convicts reserved, relieved, comforted or assisted Lamin Gaye, and did so with a view to hinder Lamin Gaye's apprehension, trial or punishment.

With regards to the offence of destruction of evidence, justice Nkea asserted that the law required the prosecution to prove that the convicts tampered with a piece of evidence that was or could be required in a judicial proceedings; that the piece of evidence was removed, concealed or destroyed; and that the convicts did so with intent to prevent that piece of evidence from being used in a judicial trial.

Justice Nkea pointed out that whilst count two is a misdemeanor, count one is a felony punishable with the very severe punishment of imprisonment for life. Justice Nkea further pointed out that the prosecution must always lead compelling evidence confirming the guilt of accused persons, noting that the duty of the prosecution is to prove its case and the burden required is long established by law.

Justice Nkea revealed that there is strong evidence that Lamin Gaye was suspected of killing Modou Tunkara on the night of the 12 May 2010. Lamin Gaye died while in custody awaiting trial for the alleged offence. The presiding judge pointed out that as a result of the death of Lamin Gaye while in custody makes it difficult for the court to determine whether or not Lamin Gaye was guilty of the murder of Modou Tunkara, adding that there is no evidence on record for the count to reach that conclusion on whether Lamin Gay had committed the offence of murder.

Justice Nkea revealed that from the totality of evidence before the court, the court hold that it was the accused persons who dropped the pestle (exhibit 1) in the toilet, adding that the accused persons knew or ought to know that the pestle which they dumped in the pit latrine was an item that could be used in evidence to determine the guilt of Lamin Gaye. They were therefore found guilty of the offence of destruction of evidence.

In their plea of mitigations, defence counsel Aji Combeh Gaye Coker informed the court that the 1st convict is 46 year and the 2nd convict is 41 years old and breadwinners of their families. She indicated that the aged mother of the 1st convict was in court. Lawyer Gaye-Coker urged the court to temper justice with mercy and further urged the court to invoke Section 29 of the criminal code in favour of the convicts.

Passing sentence, Justice Nkea disclosed that having listened to the plea in mitigation presented by their counsel, Gaye Coker, and having considered several mitigating factors, like seeing the aged mother of the 1st convict crying inside the court, the long trial which span over two years must have taught the convicts a lesson.

The judge pointed out that he would accede to the request of the criminal code in their favour. He noted that justice would be better served if the convicts were given another chance to make amends. Justice Nkea therefore sentenced each of the convicts to one-year imprisonment but however suspended the said sentence.

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