Court Admits Interrogation Recording in Former Soldiers’ Fundamental Rights Case

The High Court Annex in Banjul has admitted into evidence an audio recording of an interrogation session in the ongoing fundamental rights suit brought by three former soldiers against the Gambia Armed Forces (GAF), the Ministry of Defence, and the Attorney General.

Justice Sonia Akimbiyi ruled that the recording, which had been downloaded and stored electronically, was properly pleaded, relevant to the issues before the court, and admissible under the Evidence Act. The court consequently dismissed objections raised by counsel for the plaintiffs.

The ruling was delivered during the testimony of the defence’s fifth witness (DW5), who appeared virtually.

The case was instituted by former soldiers Yahya Beray Jammeh, Abdoulie Jarjue, and Yaya Jammeh. The plaintiffs are challenging the legality of their arrest, detention, prosecution, conviction, and subsequent retirement from the Gambia Armed Forces, alleging violations of their constitutional and fundamental rights.

According to court records, the first and third plaintiffs were arrested on July 22, 2017, while the second plaintiff was arrested on July 7, 2017. They were detained and investigated for several months before being arraigned before a General Court-Martial on charges including treason and mutiny arising from allegations that they had participated in a plot to overthrow the government.

The plaintiffs contend that they were detained for extended periods without being brought before a court, denied access to family members, and not informed of their right to legal representation.

Although they pleaded not guilty, the General Court Martial convicted them on May 24, 2019, imposed custodial sentences, and ordered their dismissal from the armed forces with disgrace. However, the Court of Appeal unanimously overturned the convictions on December 21, 2020, acquitting all three men of the charges against them.

Despite their acquittal, the plaintiffs maintain that they were not restored to active military service. Instead, they were informed in August 2021 that they had been reinstated and immediately retired by order of the President and Commander-in-Chief.

They argue that the decision to retire them was discriminatory and unlawfully based on convictions that had already been quashed by the Court of Appeal. The plaintiffs further contend that other soldiers who faced similar charges but were acquitted remained in active service.

In their suit, they seek declarations that their arrest, detention, prosecution, conviction, and compulsory retirement violated provisions of the Constitution, the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights. They are also seeking damages and compensation totaling GMD15 million, together with legal costs.

During Wednesday’s proceedings, plaintiffs’ counsel S.K. Jobe objected to the admission of an audio recording that the defence sought to tender through DW5.

Mr. Jobe argued that the flash drive containing the recording constituted a document within the meaning of the Evidence Act and that only the original recording qualified as primary evidence. He submitted that any secondary evidence should be produced in the form of a certified true copy.

Counsel further argued that because the recording originated from a state investigation, it amounted to a public document and therefore required certification before it could be admitted into evidence.

He also maintained that the defence had failed to satisfy the requirements of Section 22 of the Evidence Act governing computer-generated evidence and questioned the authenticity of the recording, arguing that it had not been produced from official state custody and that the witness lacked authority to retain such material.

In response, defence counsel A.A. Wakawa argued that the recording was both relevant and properly pleaded, making it admissible under the law.

Mr. Wakawa submitted that the Evidence Act permits the admission of copies made from an original recording and compared with it. He further argued that secondary evidence may be admitted where the original is unavailable, lost, or otherwise not retrievable.

The defence also challenged the plaintiffs’ characterization of the recording as computer-generated evidence, contending that the provision primarily applies to information produced through computer processing rather than ordinary audio recordings.

Nonetheless, counsel maintained that even if Section 22 were applicable, the defence had complied with its requirements. He relied on several judicial authorities, including the Nigerian appellate decisions in Akeredolu v. Mimiko and Dickson v. Sylva, in support of his submissions.

On the issue of custody, Mr. Wakawa informed the court that DW5, a former captain in the Gambia Armed Forces, had retained the recording securely from the time it was made until his retirement.

Delivering her ruling, Justice Akimbiyi observed that there was no dispute between the parties that the recording had been pleaded and was relevant to the matters before the court. The central question, she said, was whether it met the legal requirements for admissibility.

The judge reviewed Sections 22, 99, and 100 of the Evidence Act, which govern computer-generated and secondary evidence. She found that DW5 had laid a sufficient evidential foundation regarding how the recording was obtained, preserved, and produced, and had provided adequate information concerning its authenticity and the system used to generate it.

Justice Akimbiyi held that the defence had substantially complied with the statutory requirements governing the admission of secondary and electronically generated evidence.

Although she noted concerns about whether every condition relating to secondary evidence had been fully satisfied—particularly the requirement to demonstrate that the original recording was unavailable despite diligent efforts to locate it—she concluded that the evidence before the court was sufficient to justify admission.

The court accordingly overruled the plaintiffs’ objection and admitted the audio recording into evidence, marking it as Exhibit AWW.

Justice Akimbiyi stated that the ultimate weight and evidential value of the recording would be determined at the conclusion of the trial when judgment is delivered.