12 February 2013

Gambia: Mbye Njie Receives 50, 000 Dalasi Fine

By Mamadou Dem

Acting principal Magistrate Dawda Jallow of the Banjul Magistrates' court in a crowded court room on Monday, 11 February, 2013 convicted and sentenced Mbye Njie, former Director of Operations of the National Drug Law Enforcement Agency (NDEA) to a pay a fine of fifty thousand dalasi or in default to serve eight years in prison.

The former NDEA Operations Director was found guilty by the Court on two counts of corruption and one count for taking or accepting the sum of fifteen thousand dalasi from Bakary Jammeh {PW1} as a reward for settling a case against Sarjo Jallow out of court in the performance of his duty as a Narcotic Control Officer. The sentences are to run concurrently.

In reading out the sentence after a plea of mitigation made on behalf of the convict by defence counsel Lamin K. Mboge, the trial Magistrate stated that on count one and two the convict is sentenced to pay a fine of twenty thousand dalasi, in default to served six years imprisonment.

On count three, the convict was asked to pay the sum of ten thousand dalasi or in default to served two years imprisonment.

In reading out the judgment, the trial magistrate said the accused person was arraigned before the court on the 19th of July, 2012 charged with two counts of official's corruption, one count of extortion by public officers and one count of abuse of office contrary to the laws of The Gambia. The accused he said pleaded not guilty as charged. He added that the prosecution in proving its case called five witnesses, whilst the accused person gave sworn testimony.

Magistrate Jallow said he shall begin his decision on this matter by first stating that he did not have the opportunity to see the demeanors of the witnesses in this case, adding that in Nigerian Supreme Court Decision of Clement Oguonzee vs. The state, IGUH J.S.C. sated that: "It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence the primary function of a court of trial which saw heard and assessed the witnesses while they testify before it , the trial court has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses who it had the opportunity of seeing, hearing and observing while in the witness box."

According to the Magistrate, he had never seen any of the witnesses nor did he hear or observe their demeanors while they testified in the witness box. "This judgment is purely written based on the facts recorded and exhibits properly admitted," he said.

"I will begin with a reminder that it is an entrenched part of our Constitution that every person who is charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty. This therefore means the burden of proof in a criminal case in both senses of the term lies on the prosecution throughout the case. As such to be able to pick a conviction, prosecution must fully discharge its legal burden of proving the guilt of the accused beyond reasonable doubt," said the Magistrate.

The presiding magistrate further went on to say that the first charged of official corruption is provided for under section 86 of the Criminal Code which he cited in the judgment.

He said to sustain the said charged, the combine evidence of Pw1, Pw2 and Pw3 is crucial, adding that he observed some contradictions between Pw2's testimony and his written statement {ie defence exhibit 1}. He said Pw2 stated in DE1 that he gave the D15, 000 to Sheriff Sanyang who later called the accused to come while in both his evidence in chief and under cross examination he said he gave the D15, 000 to the accused. He added that in Amala vs. State {2004] the Supreme court of Nigeria held that where the previous statements are inconsistent with the testimony the right course for a judge is to disregard them as unreliable. This court, he said, is strongly persuaded by the above authority because where a witness makes two inconsistent statements, the court cannot pick and choose which to believe and which to reject and that the two statements must be rejected as unreliable.

He said Pw1's testimony and that of Pw3 corroborated the later part of Pw2's assertion that the D15, 000 was handed to the accused. He added that it is in evidence that Pw3 was not in the room when Pw2 allegedly handed the money. Having rejected Pw2's evidence with respect to whom did he actually hand the D15, 000 to, the only direct evidence left is that of Pw1. This court cannot rely on only Pw1's testimony that D15, 000 was given to the accused where the evidence of the purported giver was rejected for want of consistency.

"I therefore hold as a fact that some negotiations did take place regarding the settlement of the case against Sarjo Jallow. I am also satisfied that the accused is not only aware but also solicited money and indeed money (D15, 000) had change hands. It has not been proven though that the said D15, 000 was paid to the accused.

The trial Magistrate concluded that the totality of evidence before the court it hereby held that prosecution has discharged its legal burden of proof to the required standard and with respect to the first three counts and the accused was therefore convicted on count one two and three respectively. The accused is acquitted and discharged on count four. He said any dissatisfied party is entitled to appeal.

Read the full judgment of the magistrate in our subsequent editions.

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