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High Court Delivers Verdict on December 2022 Coup Attempt: Ringleader Found Guilty, Others Cleared and Released with Court’s Detailed Explanation.

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Justice Basirou Mahoney and Sanna Fadera

By Landing Ceesay

On October 31, 2023, Hon. Justice Basiru V. P. Mahoney of the High Court of the Gambia sentenced Lance Corporal Sanna Fadera, identified as the ringleader in the thwarted December 2022 coup, to a 12-year prison term for treason. Meanwhile, Petty Officer Gibril Darboe (2nd Accused), Corporal Ebrima Sannoh (3rd Accused), and Sub Inspector Fabakary Jawara (5th Accused) were discharged and acquitted.

In his pivotal ruling, Hon. Justice Mahoney elucidated the grounds for convicting Lance Corporal Sanna Fadera solely on the charge of treason, excluding incitement of mutiny.

The judge also detailed the reasons behind the acquittal of the 2nd, 3rd, and 5th accused individuals, clarifying their innocence in the face of charges brought against them by the state law office.

Background of the Treason Trial:

On January 23, 2023, the state law office filed charges against Lance Corporal Sanna Fadera (1st Accused), Petty Officer Gibril Darboe (2nd Accused), Corporal Ebrima Sannoh (3rd Accused), Corporal Omar Njie (4th Accused), and Sub Inspector Fabakary Jawara (5th Accused).

The charges included treason allegations under Section 35 (1) (a) and Section 35 (1) (g) of the Criminal Code, pertaining to the accused persons’ preparation and/or attempts to overthrow the Government of The Gambia through unlawful means.

Additional charges were brought against the 2nd, 3rd, and 5th accused individuals for concealment of treason under Section 36 (a) and Section 36 (b) of the Criminal Code, accusing them of failing to report the 1st Accused’s treasonous intentions and not making reasonable efforts to prevent the offense.

Furthermore, Lance Corporal Sanna Fadera faced a separate charge of inciting to mutiny under Section 40 (c) of the Criminal Code, involving an attempt to incite mutinous acts by Sergeant Karamo Jatta and Captain Mamat Jobe.

The trial, presided over by Hon. Justice Basiru V.P. Mahoney, was conducted under a fiat issued by the Hon. Chief Justice as per Section 131 (c) of the Constitution. All accused individuals pleaded not guilty, and after the prosecution’s case, the 2nd, 3rd, and 4th accused persons submitted a no-case-to-answer, resulting in the acquittal and discharge of Corporal Omar Njie at that stage of the proceedings on June 14, 2023.

Hon. Justice Basiru V.P Mahoney’s take on the charges.

Justice Mahoney emphasized the gravity of the criminal offenses of treason and concealment of treason, noting that they are of an extremely serious nature. He pointed out that the severity of punishment for treason includes death in certain circumstances and life imprisonment in others.

According to Justice Mahoney, these offenses have been litigated in the courts on numerous occasions over the years. He specifically referred to authoritative decisions from the Supreme Court of The Gambia, citing cases such as Colonel Lamin Bo Badjie & 6 Ors v The State (Criminal Appeal 1-7/2011) and Lt. General Lang Tombong Tamba v The State (Criminal Appeal No. 019/2013).

“Both offences have been prosecuted in our courts multiple times over the years such that there are authorities on the subject matter from the highest level particularly the Supreme Court of the Gambia. I refer to the decisions of the aforementioned Court in Colonel Lamin Bo Badjie & 6 Ors v The State in Criminal Appeal 1-7/2011, Judgment dated 19 October 2012 and on review dated 12h November 2014 and the decision in Lt. General Lang Tombong Tamba v The State in Criminal Appeal No. 019/2013, Judgment dated 6h May 2015,” Hon. Justice Mahoney said.

A summary of the witnesses’ sworn testimony, and the evidence elicited on record.   

The State presented eight (8) Prosecution Witnesses, all of whom testified against the accused individuals.

Summary of Testimonies:

The First Prosecution Witness (PW1) Barra Touray, a soldier with 15 to 16 years of service in the Gambia Armed Forces, testified about an encounter with Lance Corporal Sanna Fadera (the 1st accused person) approximately 6 to 8 months earlier. This interaction took place at the Yundum Barracks and pertained to the coup.

 Summary of the Second Prosecution Witness (PW2) Testimony

PW2, Yaya Manjang, a teacher and marabout, stated in his testimony that Mustapha Jabbi and the 5th Accused approached him in November 2022 to seek his assistance in performing listihar for the nephew of the latter, who expressed intentions to stage a coup d’état.

Upon their return to obtain the results of the listihar, PW2 informed them that he was unable to perform the requested prayers. Instead, he suggested that they reach out to Kara Yankuba’s family in Mauritania, Casamance, or Futa Touba for assistance. However, he did provide them with a charity suggestion, instructing them to distribute kola nuts and bitter cola.

Summary of the Third Prosecution Witness (PW3) Testimony

PW3, Captain Mamat Jobe, who has served in the Army for a period of 15 years and stationed in Farafenni, testified that on November 26, 2022, the 1st Accused contacted him expressing a desire to visit. Subsequently, when the 1st Accused arrived at his residence later that evening, he disclosed his intention to overthrow the Government. PW3 then counseled the 1st Accused against engaging in such actions.

Summary of the Fourth Prosecution Witness (PW4) Testimony

PW4, Mustapha Jabbie, reported that in September 2022, he engaged in a business arrangement with the 5th Accused, during which they agreed on the purchase of a truck located in Belgium. In October 2022, the 5th Accused extended an invitation to PW4 to visit his residence. During this visit, PW4 was introduced to the 1st Accused, who allegedly expressed intentions to overthrow the Adama Barrow Government. Subsequently, the 5th Accused and the 1st Accused sought the services of a marabout, who provided them with herbal medicine. According to PW4, the 1st Accused was instructed to use the herbal medicine for a ritual washing in the bush, specifically on Sundays. PW4 recounted being tasked with escorting the 1st Accused to the bush for the said ritual, a task which he fulfilled.

Summary of the Fifth Prosecution Witness (PW5) Testimony

PW5 Sanusi Darboe, a police officer, disclosed his involvement in the joint investigation team tasked with probing the treason case. He asserted familiarity with all the accused individuals, having interacted with them during the joint investigation.

PW5 affirmed that he obtained cautionary and voluntary statements from the 3rd Accused, which were admitted as evidence without objection.

Similarly, the cautionary and voluntary statements of the 1st Accused were accepted into evidence through PW5 without facing any objection.

However, PWS’s attempt to submit the cautionary and voluntary statements of the 5th Accused was rebuffed due to non-compliance with Section 31 of the Evidence Act.

Summary of the Sixth Prosecution Witness (PW6) Testimony

Police Officer PW6, Jally Senghore, identified the 1st to 4th Accused individuals during his tenure as a member of the joint investigation into the alleged coup plot.

He disclosed that he obtained cautionary and voluntary statements from the 2nd and 4th accused persons. The statements from the 2nd Accused were accepted as evidence without opposition, while objections were raised by the counsel regarding the admission of the 4th Accused’s statements, but they were ultimately admitted.

PW6 recounted his involvement in the apprehension of the 5th Accused, whose phone number appeared on the call log of the 1st Accused. By examining the call log, they were able to identify the 1st Accused’s communication partners.

Print-outs of various phone numbers from the call log, presented by PW6, were admitted as evidence. An analysis of these numbers, documented during the investigation, was accepted to refresh the witness’s memory.

During the investigation, PW6 testified about recovering a mobile phone from Karamo Jatta, which contained audio conversations with the 1st Accused, as well as images of roots and documents labeled ‘format of operation and deployment of commandos.’ Hard copies of the documents were obtained, and the audio conversations were transferred to a flash drive.

The document outlining the operation plan and deployment of commandos was admitted into evidence without objection. Despite objections concerning the phone’s identification, Karamo Jatta’s phone was also admitted into evidence.

 Summary of the Seventh Prosecution Witness (PW7) Testimony

PW7 Karamo Jatta, a soldier, reported that on December 3, 2022, the 1st Accused contacted him, expressing a desire for a personal conversation while expressing dissatisfaction with the country’s direction. Subsequently, when PW7 was in Farafenni the following day, he contacted the 1st Accused, who confirmed his intention to come to Farafenni, leading to a meeting between them on the subsequent day.

During this encounter, PW7 conveyed that the 1st Accused informed him of the successful execution of the coup, mentioning the readiness of logistical arrangements. Furthermore, the 1st Accused disclosed that he had prepared 200 charms (jujus) for those participating in the coup. PW7 recounted that the 1st Accused instructed him to mobilize a platoon comprising 30 men. Additionally, the 1st Accused shared what PW7 referred to as the operational plan for the coup and presented an operational map.

Summary of the Seventh Prosecution Witness (PW8) Testimony

PW8, an undisclosed military intelligence officer, provided testimony in an open court setting while being concealed from the public gallery, allowing only the accused individuals, their legal representatives, and the bench to visually access him. However, his statements were audible to everyone present in the courtroom. PW8 recounted that between January and March 2021, at the joint services headquarters in Banjul, the 1st Accused passed by his office.

During a conversation with the 1st Accused, the Military Intelligence Officer inquired about the progress of the 1st Accused’s degree. In response, the 1st Accused revealed that he had completed his degree and submitted the necessary documents to Defense Headquarters. However, he claimed that the authorities were unwilling to consider him for commissioning or promotion to officer rank.

Reflecting on their shared history at the University of The Gambia, the Military Intelligence Officer recalled the time when the 1st Accused sought support for his bid for the presidency of the student union. The 1st Accused, identified as Sanna Fadera, had led a demonstration resulting in Professor Kah leaving the country, and the aftermath led to President Jammeh going into exile.

According to PW8, the 1st Accused assured him not to worry, stating that he would eventually become the Head of State and appoint the witness as the director of intelligence. The witness acknowledged the significance of the information but considered it premature, opting to scrutinize the 1st Accused further. Despite closely monitoring the 1st Accused during that period, the witness claimed he found no incriminating evidence, noting that the 1st Accused spent his nights at Kiang unless on duty.

This encapsulates the testimony provided by the eight prosecution witnesses. As previously noted, the 2nd, 3rd, and 4th accused individuals submitted a “no case to answer” plea, which was granted only for the 4th accused, leading to his discharge. Subsequently, the 1st, 2nd, 3rd, and 5th accused individuals presented sworn evidence in their defense, summarized as follows:

Lance Corporal Sanna Fadera (the 1st Accused Person)

Lance Corporal Sanna Fadera, identified as the 1st Accused Person, declared that he resides in Kiang and is currently serving in the Gambia Navy in Banjul, where his assignment is as a lab technician. Holding a Bachelor’s degree in biology and chemistry, he vehemently refuted any involvement in attempts to overthrow the Government of The Gambia.

Fadera asserted that while he knows Captain Mamat Jobe (PW3) from their recruitment training, he neither met nor engaged in discussions with him regarding any activities related to the alleged coup. He clarified that he never visited Captain Mamat Jobe nor shared any operational plans with him.

Furthermore, Fadera denied ever encountering Sergeant Komma in Farafenni or having any telephonic communication with him, emphasizing his lack of acquaintance with Sergeant Komma. He acknowledged familiarity with Sergeant Karamo Jatta from their recruitment training but denied engaging in any conversations or sharing documents with him. Regarding Exhibit P11, the operational plan, Fadera contended that it was his first time seeing it and asserted that he could not be its author, as such plans are typically prepared by the command authority possessing the necessary technical expertise.

The 1st accused refuted claims of meeting Karamo Jatta in Farafenni and dismissed any association with a supposed meeting in Kafuta on December 18, 2022. He denied encountering Karamo Jatta, Sergeant Gibril Darboe, or Ebrima Sannoh on that date and disavowed any knowledge of the alleged discussions and events that transpired during the purported meeting in Kafuta. Fadera categorically denied making any statements or participating in discussions pertaining to those alleged occurrences.

Sub Inspector Fabakary Jawara (the 5th Accused Person)

Sub-Inspector Fabakary Jawara, identified as the 5th accused in the proceedings, testified that he holds the rank of police officer as a sub-inspector and resides in Brikama.

He acknowledged familiarity with the 1st accused, stating that the individual is his younger brother. However, he claimed no knowledge of the 2nd or 3rd accused, nor Lamin Jadama. Additionally, he asserted no involvement in any plans to overthrow the Government of The Gambia, expressing ignorance about Kafuta and asserting that he has never been to that location.

The 5th accused emphasized his close relationship with the 1st accused, his brother, but clarified that he had no communication with the 2nd or 3rd accused. Furthermore, he stated unfamiliarity with Yaya Manjang and Captain Mamat Jobe, denying any visit to Manjang’s house.

Regarding an alleged directive to Mustapha Jabbi to transport the 1st and 3rd accused to Kafuta for a meeting on December 18, 2022, the 5th accused categorically denied making such a request.

Summary of the Prosecution and Defense Counsels’ Arguments

On 9th August 2023, the Prosecution submitted their written brief, focusing on the key issue of whether they had sufficiently proven their case beyond reasonable doubt. According to the Prosecution, the evidence supports their claim that the Accused individuals actively plotted to overthrow The Gambia’s government. They emphasize the corroboration from various witnesses, telephone printouts, and an operational plan, asserting that the concealment of treason charges has also been substantiated.

Counsel Lamin S. Camara, representing the 1st and 5th Accused, presented their brief on 12th September 2023, similarly centering on the question of the Prosecution meeting the burden of proof. Camara raised concerns about the contradictory nature of PW1’s evidence and highlighted the lack of mutual corroboration among witnesses, specifically noting that PW2’s testimony does not support PW1’s claims.

Furthermore, Camara argued that the absence of proof for conspiracy undermines both Count 1 (substantive offence) and Count 2 (conspiracy), rendering them likely to fail.

Lamin L. Darboe, representing the 2nd Accused, filed their brief on 11th September 2023. Darboe contended that the Prosecution’s witnesses relied on hearsay, making any conviction based on such evidence unreasonable. The core of Darboe’s argument is that the Prosecution failed to establish the guilt of the Accused beyond reasonable doubt.

Junkung Jobarteh, representing the 3rd Accused, submitted their brief on 14th September 2023, addressing two key issues: whether the elements of the offenses were proven beyond reasonable doubt and whether the State successfully met its burden of proof. Jobarteh argued that the Prosecution’s case was undermined by the absence of the 3rd Accused’s telephone number on the printout of the 1st Accused, challenging the assertion of communication between them.

Additionally, Jobarteh asserted that witnesses who mentioned the 3rd Accused did not adequately identify him, and thus, the standard and burden of proof required for conviction have not been met.

Summary of Hon. Justice Basiru V. P. Mahoney’s Evaluation of the Law on Corroboration and Accomplices

Hon. Justice Basiru V. P. Mahoney outlined the crucial considerations during the evaluation of the case. He emphasized that the key issue at hand is whether the Prosecution has successfully demonstrated, beyond a reasonable doubt, the commission of the offenses outlined in the counts, taking into account both the presented evidence and the applicable legal framework.

“Based on the law and facts of the case and the Addresses of Counsel, I believe the issue to be determined is whether the Prosecution have proved the offences in the counts beyond reasonable doubt based on the evidence and the law,” Hon. Justice Mahoney said.

Addressing the necessity for Corroboration and the relevant Legal principles, Hon. Justice Mahoney underscored the requirement imposed by criminal law, particularly Section 144 of the Evidence Act, demanding the Prosecution to establish the offenses beyond reasonable doubt. In this case, the Prosecution fulfilled this obligation by presenting the testimony of eight witnesses.

Furthermore, Hon. Justice Mahoney highlighted two essential legal principles relevant to the case. Firstly, he referenced Section 38 of the Criminal Code, which stipulates that convictions under specific sections of the Code require corroborated testimony, emphasizing that reliance on the uncorroborated testimony of a single witness is insufficient.

To elucidate the concept of Corroboration, Hon. Justice Mahoney referred to Section 179 of the Evidence Act. According to this section, Corroboration involves independent evidence that, when considered, reasonably confirms specific aspects of the primary evidence and establishes a connection between the individual implicated and the alleged offense, claim, or defense.

Drawing on the decision in Lang Tombong Tamba v The State & Sarjo Fofana versus The State, Criminal Appeals 019/2013 and 002/2004, Judgment dated 6th May 2015, Hon. Justice Mahoney underscored the significance of corroborative evidence in proving the commission of offenses under Section 35 and 36 of the Criminal Code.

Finally, Hon. Justice Mahoney addressed the second legal principle pertinent to the case—the relevance of the testimony of an accomplice. This underscores the need for careful consideration of the credibility and weight assigned to the statements made by individuals identified as accomplices in the proceedings.

“While it is clear that an accomplice is a competent witness, it may be dangerous to act on such evidence alone as the evidence of an accomplice may have its own purpose to serve hence the common law requires that the jury be warned or that the judge sitting without a jury warn himself of the danger of acting on the uncorroborated evidence of an accomplice. I am of the view that an accomplice is a tainted witness. The evidence is admissible, but must be treated with caution,” Hon. Justice Mahoney said.

Honorable Justice Mahoney also referenced the Supreme Court’s ruling in the case of Lamin Bo Badjie & 6 others versus The State, Criminal Appeal 1-7/2011, with a Judgment on Review dated 12 November 2014.

Justice Mahoney explained that an accomplice is generally defined as a participiscriminis, meaning a partner of the accused person involved in committing the crime for which the accused is charged.

He highlighted that prosecuting authorities often rely on accomplices as witnesses in situations where proving the case would otherwise be challenging.

The High Court Judge noted that although Section 181 of the Evidence Act seems to allow a court to convict based on the uncorroborated evidence of an accomplice, it must be interpreted with specific consideration for the proviso “subject to the express provisions of any other law to the contrary” included in that section.

Justice Mahoney emphasized that the Gambia Court of Appeal has, in various judgments, affirmed the incorporation of the common law rule. This rule cautions that a court should not convict based on the uncorroborated evidence of an accomplice without being mindful of the potential risks, and it is deemed to be integrated into Section 181 of the Evidence Act through the mentioned phrase.

“Under the Evidence Act therefore, once a witness is determined/ identified as an accomplice the court should not convict the accused on the uncorroborated evidence of that accomplice. Unless it warns itself on the record that it is recognizes the danger of doing so but it considers the witness as credible and capable of belief despite him being an accomplice. If no such warning is made by the court then any conviction based on such evidence will be set aside on appeal,” Hon. Justice Mahoney said.

Justice Mahoney, in reference to page 217 of Hassan Jallow’s The Law of Evidence, Revised 2nd Edition, emphasized that according to legal precedent, one accomplice is incapable of corroborating another accomplice. Regardless of the number of witnesses presented by the prosecution, if they are all accomplices, their testimony cannot mutually support each other.

Citing the case of Sarjuma Krubally v. State GCA CRIM. APP. No. 9/80, Justice Mahoney highlighted that the appellant, charged jointly with two others for shop breaking under S. 283 (1) of the Criminal Code, saw the other two plead guilty, leading to their conviction and sentencing. The trial proceeded for the appellant, during which the convicted individuals provided evidence, ultimately resulting in the appellant’s conviction.

Justice Mahoney posed critical questions regarding the witnesses: Were the two individuals considered accomplices, and did their testimony necessitate corroboration? Affirmatively answering the first question, he relied on Lord Simmonds L.C.’s definition of an accomplice from Davies v. DPP (1954) A.C.378, defining accomplices as individuals involved in the actual crime charged, whether as principals, accessories before or after the fact (in felonies), or individuals committing, procuring, or aiding and abetting (in misdemeanors).

“Were the two witnesses accomplices? Was corroboration of their evidence necessary?  If they were accomplices, whether the magistrate should have warned himself of the danger of convicting on their uncorroborated evidence. The court answered the first question in the affirmative, relying on the definition of accomplice provided by Lord Simmonds L.C. in the case of Davies V. DPP (1954) A.C.378 to wit: persons who are participiscriminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) orpersons committing, procuring or aiding and abetting (in the case of misdemeanours),” he said.

Honorable Justice Mahoney emphasized that addressing the second issue necessitated a thorough examination by the court of the then Section 45 of the Courts Act before its repeal. He underscored that Section 181 of the Evidence Act is formulated in precisely identical terms.

Justice Mahoney conveyed that the court, in its determination, affirmed that the corroboration of an accomplice’s testimony is not mandated by law. He clarified that a conviction based on uncorroborated accomplice testimony will not be overturned on appeal solely due to its lack of corroboration.

Expressing his viewpoint, Justice Mahoney asserted that, based on a reasonable interpretation of Section 45 of the Courts Act, it cannot reasonably be argued that it precludes the application of the aforementioned rule. He emphasized that a judge or magistrate in The Gambia should issue a proper warning in a suitable case. Furthermore, if the appropriate cautionary advice is provided, a conviction will not be overturned merely because it relies on the uncorroborated testimony of an accomplice.

“In my opinion, on a reasonable construction of Section 45 of the Courts Act, it cannot be seriously contended that it excludes the application of the rule just stated. A judge or magistrate in The Gambia – should give the proper warning in a suitable case. And if the proper warning is given, a conviction will not be quashed merely because it rests on the uncorroborated testimony of an accomplice,” Hon. Justice Mahoney stated that.

Honorable Justice Mahoney highlighted the delineation of principles by the Gambia Court of Appeal in the case of Lamin Nicol versus the State (GCA CRIM. App. 180). Emphasizing the importance of caution and the consequences of proceeding based on uncorroborated evidence without proper warning, he reiterated this stance in the case of Ebou Momar Taal versus the State (GCA CRIM. App No. 13/83).

In Criminal Appeal No. 4/95, Ida Ceesay versus The State, Hon. Justice Mahoney cited the court’s declaration that if the evidence is uncorroborated but the judge self-warns against relying on such evidence, recognizing the customary need for corroboration, it may be used to form a verdict. The Appeal Court, in such cases, cannot challenge the admissibility of the evidence.

Referring to the West African Court of Appeal (WACA) case Rex v. Tocon Madam and 2 others (1936) WACA 39, Hon. Justice Mahoney outlined three fundamental principles regarding the corroboration of accomplice evidence. Firstly, corroboration must come from an independent witness, not another accomplice. Secondly, the corroboration should establish the accused’s connection to the crime, not merely confirm that a crime occurred. Lastly, if there is a clear warning about the necessity for corroboration, and suggested corroborative elements turn out to be unsubstantiated, leading to no actual corroboration, a conviction may be overturned on appeal.

“The WACA in the case of Rex v., Tocon Madam and 2 others (1936) WACA 39 set out three cardinal principles of the law regarding corroboration of the evidence of accomplices. The first is that corroboration must be by an independent witness and not by another accomplice. One accomplice cannot corroborate another. The second is that corroboration must go to identify the accused with the crime and not merely to establish that a crime has been committed. And the third is that where there is sufficient warning of the necessity for corroboration and matters are suggested as corroboration which, in fact are not, and there is in fact no corroboration at all, a conviction may be quashed on appeal,” he said.

Justice Mahoney emphasized that the legal stance on accomplice evidence is further reinforced in the decision in Lamin Bo Badjie & 6 others v The State, Criminal Appeal No. 1-7/2011, dated November 12, 2014. In this case, the Supreme Court Justice noted that while there is a general rule allowing mutually suspicious witnesses to corroborate each other, exceptions may arise, especially when the witnesses are, in a strict sense, participants in the criminal conduct with the defendant. This exception aligns with established legal authorities such as Archbold, DPP v Hester (1973) 57 Cr App R. 381 H.L., and Halsbury’s Laws of England, Fourth Edition Reissue.

Concluding his remarks, Hon. Justice Mahoney laid out the identified principles of corroboration and accomplice evidence and expressed his intent to apply these principles in evaluating the evidence concerning the charged offenses to determine if they were proven beyond a reasonable doubt.

“Having stated the principles to be considered, that is corroboration and evidence of an accomplice, I shall now refer to the elements of the offences charged and determine whether the evidence adduced proves beyond reasonable doubt the commission of the offences,” Hon. Justice Mahoney said.

Summary of Hon. Justice Mahoney’s Identification of Accomplices in the Treason Trial    

  

In addressing the identification of accomplices in the Treason Trial, Hon. Justice Mahoney highlighted the importance of determining witness status before delving into evidence analysis. Emphasizing the legal implications, the judge stated, “It is, however, convenient at this point, before analyzing and evaluating the evidence, to determine if any of the witnesses are accomplices, as this will have legal consequences as stated above.”

Specifically, Hon. Justice Mahoney pointed to the testimony of Barra Touray (PW1), who claimed that the 1st Accused had confided in him about a plot to overthrow the Government. According to Touray’s account, in subsequent discussions with the 1st Accused, he requested the operational plan and was informed about a successful meeting held on December 18th.

The judge further noted that Barra Touray revealed being arrested in connection with the alleged coup, facing charges that were later dropped. Subsequently, Touray was placed in protective custody until his testimony. This information was deemed crucial in the court’s examination of potential accomplices in the treason trial.

“He confirmed that initially he told the police he didn’t know anything about the matter, he wrote two to three statements – the last one two days before he was discharged. On these facts, it is glaring that PW1 was an accomplice. He had knowledge of the alleged coup and did nothing about it he was an accessory before the fact in that he aided and abetted the principal – the 1st Accused to commit the alleged offence,” Hon. Justice Mahoney stated.

On Yaya Manjang (PW2),

Hon. Justice Mahoney declared that PW2 had stated being approached by Mustapha Jabbi and the 5th Accused regarding the latter’s nephew’s desire to stage a coup d’etat.

Hon. Justice Mahoney indicated that PW2 had advised Mustapha Jabbi and the 5th accused on the charity to give, directing them to a marabout in Mauritania. Furthermore, Hon. Justice Mahoney highlighted that PW2 was aware of the alleged coup plot but took no action, effectively aiding and abetting the principal offender in committing the alleged offense.

“He (Yaya Manjang) also was arrested, detained and released over a period of several days. On the facts, he is also an accomplice,” Hon. Justice Mahoney said.

In relation to Mamat Jobe (PW3), Hon. Justice Mahoney recounted that PW3 had testified to being informed by the 1st Accused about his intention to overthrow the government, presenting an operational plan. Hon. Justice Mahoney added that PW3, on study leave at the time, asserted his unwillingness to impede the plan.

“He said it was the following day after 1st Accused told him of the alleged coup that he reported to Major Lamin Njie. From there, he kept on pursuing his superiors about the alleged coup resulting in the meeting of Majors Lamin Njie and Alagie Njie and the military intelligence officer when they called the 1st Accused. Subsequently, he and his superiors reported to Defence Headquarters and ultimately when he ran out of patience he reported to the State Intelligence Services. On the facts, although Mamat Jobe knew about the alleged coup, and may have abetted the principal, his intention was to foil the coup and thus lacked the mensrea for the offences. He is not an accomplice,” he said.

In the matter concerning Mustapha Jabbi (PW4) and his alleged complicity, Hon. Justice Mahoney conveyed that PW4 was introduced to the 1st Accused by the 5th Accused, who identified him as an individual seeking to overthrow the government. According to Hon. Justice Mahoney, PW4 revealed that he escorted the 1st Accused to wash in the bush, took the 5th Accused to a marabout on behalf of the 1st Accused, sought his uncle’s assistance for the marabout in Mauritania, drove the Accused persons (excluding the 5th Accused) to Kafuta for a meeting, actively participated in the purported coup, assisted and abetted the principal, and took no action against the alleged coup.

“He was arrested, detained, charged and later discharged. He initially denied involvement during investigations with the police. He was put under protective custody. On the facts Mustapha Jabbi is an accomplice,” Hon. Justice Mahoney stated.

Furthermore, Hon. Justice Mahoney pointed out that PW5 and PW6 were police officers actively engaged in the investigative process.

In the case of Karamo Jatta (PW7), Hon. Justice Mahoney disclosed that PW7 recounted encountering the 1st Accused in Farafenni, where the latter disclosed the preparedness of the coup, claiming to possess 200 charms and urging PW7 to mobilize individuals.

Elaborating on PW7’s testimony, Hon. Justice Mahoney conveyed that PW7 had been shown the operational plan and had taken photographs of it.

On December 18th, Honorable Justice Mahoney revealed that PW7, on the aforementioned date, joined the group of accused individuals (excluding the 5th Accused) during an alleged meeting in Kafuta. At this gathering, PW7 observed the intricacies of the purportedly planned coup. Despite being present, PW7 explicitly expressed his refusal to be involved and conscientiously reported the incident to higher authorities on December 12th.

“There is ample evidence that he was part and parcel of the alleged coup. The only issue is his intention. But what evidence is there that he reported the issue to higher authorities? Which higher authorities?According to the prosecution case, as per the investigating police officer PW6, he came across Karamo Jatta’s name when he was analysing the call logs. In fact, PW6 said KaramoJatta was invited and interviewed and his telephone was recovered which contained audio conversations, photos and documents including the operational plan. Based on the facts, it can only be concluded that PW7 is an assumed accomplice,” Hon. Justice Mahoney stated.

Justice Mahoney stated that PW8, the military intelligence officer, cannot be considered an accomplice based on the facts, similar to the situation in the case of Mamat Jobe.

Hon. Justice Mahoney’s Evaluation of the Evidence vis-à-vis the Charges

Justice Mahoney proceeded to assess the evidence in relation to the accused individuals.

“I shall now evaluate the evidence vis-à-vis the Accused persons and the charges bearing in mind the issue of the requirement for corroboration and evidence of accomplices. The charges before this Court are the offence of Treason contrary to Section 35 (1) (a) and (g) of the Criminal Code against 1st, 2d, 3rd and 5th Accused persons. Section 35 provides as follows: (1) A person who(a) prepares or endeavours to overthrow the Government by unlawful means; (b) prepares or endeavours to procure by force any alterationof the law or the policies of Government; (c) prepares or endeavours to carry out by force an enterprise which usurps the executive power of the State in any matter of both a public and a general nature; (d) incites or assists or procures a person to invade The Gambia with armed force or unlawfully to subject any part of The Gambia to attack by land, sea or air or assists in preparation of any such invasion or attack:

“(e) in the time of war and with intent to give assistance to the enemy, does any act which is likely to give such assistance; (f) causes or attempts to cause the death of a member of the Government or other citizen of The Gambia with a view to securing the overthrow of the Government or with intent to coerce any other citizen of The Gambia into opposing the Government or otherwise into withdrawing or withholding his or her support from the Government; or (g) conspires with any other person or persons to effect any of the purposes specified in paragraphs (a) to (f) of this subsection, commits the offence of treason and, subject to subsection (2) of this section, is liable on conviction to be sentenced to death or to imprisonment for life,” Hon. Justice Mahoney stated.

Justice Mahoney emphasized that Section 35(2) clearly stipulates that individuals found guilty of an offense under paragraph (1) of subsection (1) of this section are subject to a sentence of death upon conviction.

Analyzing the statutory offense outlined above, Justice Mahoney outlined the essential elements of treason in paragraph (a) of Section 35(1): (a) the existence of a preparation or endeavor, (b) the preparation or endeavor being aimed at overthrowing the Government of The Gambia, (c) the employment of unlawful means in the preparation or endeavor, and (d) the involvement of the accused individuals in the said preparation or endeavor.

Justice Mahoney went on to define ‘preparation’ according to Black’s Law Dictionary 5th Edition, stating that in the context of a criminal offense, it involves devising or arranging the necessary means or measures for its commission. Furthermore, an ‘attempt’ is characterized as a direct movement toward the mission after preparation, as per the same legal reference. The term ‘prepare’ itself was elucidated as providing with necessary means, making ready, or supplying what is appropriate or necessary.

The presiding judge also delved into the definition of ‘endeavor’ from Black’s Law Dictionary, describing it as the exertion of physical and intellectual strength towards the attainment of a specific object, often manifesting as a systematic or continuous effort.

“The elements of the offence of treason in paragraph (g) of section 35 (1) must comprise of a conspiracy which is defined in Black’s Law Dictionary 5 Edition as: a combination or confederacy between two or more persons formed for the purpose of committing by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. And conspire’ is defined as follows: to engage in conspiracy. Term carries with it the idea of agreement, concurrence and combination,” Hon. Justice Mahoney said.

In reference to Blackstone’s Criminal Practice, 1988 Edition, Hon. Justice Mahoney elucidated that, according to page 82, paragraph A6.9, conspiracy, as per common law, is defined as ‘an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means.’

Furthermore, Hon. Justice Mahoney affirmed that the elements constituting the offence outlined in paragraph (g) of Section 35 (1) of the Criminal Code, specifically conspiracy to overthrow the Government, include: (a) the existence of an agreement among two or more individuals to pursue a shared objective; (b) the common purpose being the unlawful overthrow of the Government; (c) the initiation or participation of individuals in carrying out the common purpose; and (d) the involvement of the accused person and others in the agreement.

Regarding the testimonies of PWI and PW2, Hon. Justice Mahoney emphasized the need for prudence in relying on accomplice evidence. Expressing reservations about the credibility of PWI and PW2, the judge remarked that their testimonies lacked conviction, and their demeanor did not merit high regard. Consequently, Hon. Justice Mahoney asserted a reluctance to accord substantial weight to their evidence.

“From the position of the law on accomplices set out above, it is apparent that I must exercise great caution in relying on and giving weight to the evidence of PWI and PW2. I also must state that I did not find their testimonies very convincing and their demeanour also did not call for them to be held in high esteem. I shall not give much weight to their evidence,” Hon. Justice Mahoney stated.

In the accounts provided by PW3, PW4, PW7, and PW8, Hon. Justice Mahoney observed a notable quality in their testimonies. He remarked that their demeanor was particularly compelling, and their responses remained convincing and consistent even during cross-examination.

Justice Mahoney highlighted the significance of PW7’s testimony, who was identified as an assumed accomplice. According to PW7, the 1st Accused allegedly informed him about a prepared coup d’etat, complete with mystical preparations and efforts to enlist soldiers for the cause. The judge pointed out that there exists tangible evidence, including an operational plan and map, supported by photographs that were presented and accepted as evidence.

Specifically focusing on PW7’s account, it was revealed that the 14th Accused, the 3rd Accused, and PW7 himself were chauffeured by PW4 Mustapha Jabbi to a location in Kafuta. There, they were directed by the 2nd Accused to the specific compound where a meeting regarding the coup d’etat took place. Justice Mahoney outlined the details of the discussions, shedding light on the objectives of the coup, intricate plans within the military such as retirements and promotions, radio station announcements, strategies for mobilizing public support through demonstrations, and the essential materials required for executing the enterprise.

“More particularly, PW7 gave evidence that the 14 Accused, 3rdAccused and PW7 himself were driven by PW4 Mustapha Jabbi to a place in Kafuta where they were signalled by the 2nd Accused to the location of the compound where they held a meeting about the coup d’etat. Details were given of the discussions including the aims of the coup, plans within the military such as retirements and promotions, radio station announcements, mobilising people to demonstrate in support and materials needed to execute the enterprise,” Hon. Justice Mahoney said.

In his remarks, Hon. Justice Mahoney underscored the need for caution when considering the testimony of PW7, highlighting the individual’s status as an assumed accomplice. Emphasizing the potential danger of relying solely on PW7’s account, the Justice stressed the imperative to seek additional evidence to substantiate the claims made.

Furthermore, Hon. Justice Mahoney pointed to alternative sources of evidence, particularly in the testimony of PW3, Mamat Jobe. According to the Justice, PW3 recounted an incident in which the 1st Accused disclosed his intent to overthrow the Government during a conversation over the telephone. This revelation allegedly took place in the presence of Majors Lamin Njie and Alagie Njie, with a military intelligence officer confirming the essence of a coup d’etat being discussed.

The Justice went on to mention that the aforementioned telephone conversation was corroborated by the testimony of military intelligence officer PW8. According to Hon. Justice Mahoney, this convergence of accounts strengthens the credibility of the narrative.

Additionally, the Justice highlighted the testimony of PW4, Mustapha Jabbie, who conducts business with the 5th Accused. PW4 claimed to have driven the 5th Accused to a marabout on multiple occasions and chauffeured a vehicle carrying the 1st Accused, 3rd Accused, and PW7 to a meeting at the 2nd Accused’s compound in Kafuta.

Summing up the evidence, Hon. Justice Mahoney concluded that the 1st Accused’s communication of his intention to overthrow the Government, coupled with the telephone conversation witnessed by multiple individuals, including PW8, the military intelligence officer, aligns with the broader case against the 1st Accused, suggesting his involvement in preparations or attempts to overthrow the Government.

“There is also the evidence of the operational plan and map which was shown by the 1st Accused to PW3 and PW7, the latter having taken a photograph of it (Exhibit P11). In respect of the charge of treason contrary to section 35 (1) (a) of the Criminal Code, there is established that there was a preparation for the purpose of overthrowing the Government of The Gambia by unlawful means which was done by the 1st Accused,” Hon. Justice Mahoney stated.

Justice Mahoney asserted that the testimony of the primary defendant consistently revolved around denying any intention to orchestrate a coup d’état. The first accused explicitly refuted engaging in discussions with the second accused after official working hours.

Justice Mahoney further conveyed that the first accused disavowed any conversations or document sharing with PW7 Karamo Jatta. Additionally, the first accused refuted the existence of a meeting in Kafuta on December 18th. While acknowledging telephone exchanges with the other accused individuals, the first accused maintained that these communications were unrelated to coup plans.

“To contradict the 1st Accused’s denials, the Prosecution sought to show that he was had telephone calls with them particularly on 18th December 2022. I am of the view that this evidence goes a long way in tilting the balance of the scales for the standard of proof required to be attained. This evidence is independent evidence contradicting the 1st Accused’s position that he was not in contact with the other Accused persons and witnesses in connection with the meeting of 18th December 2022.

 “An analysis of the call log of the two telephone numbers that 1st Accused was using shows the pattern of calls he made and received. Exhibit P9 is the call log of 1st Accused’s number 200***** from October to 20th December 2022 and Exhibit Pl0 is the call log of 1st Accused’s wife’s number 76*** which he was also using. The 2nd Accused’s number is 3590260, the 3 Accused 957**** and the 5th Accused 221***. PW3’s number is 367****, PW4 700*** and 344**** and the PW7’s number is 520***. These numbers were given by the Accused persons and witnesses themselves,” Hon. Justice Mahoney stated.

Hon. Mahoney said he did not use the documents of PW6 which he used to refresh his memory as counsel for the Accused persons were very opposed to same, But the aforementioned numbers came from their owners themselves so there is no controversy over the ownership of the numbers.

“I agree with counsel for the Accused persons that the call log does not show what was discussed but it does show that calls were made and received and this is not denied. The mere fact that calls were made and received goes to corroborate the evidence that there were conversations on specific dates and times and places and goes to the credibility of anyone denying such telephone calls. Now, the call log shows that 1 Accused communicated with 2nd Accused and with PW7 and with PW3. In fact he communicated with all the Accused persons. This goes against his testimony that he had no business with some of the Accused persons and witnesses. But more particularly is the information revealed from the 1 Accused’s telephone conversations on 18thDecember 2022,” he stated.

According to Hon. Justice Mahoney, the 1st accused’s movements on the day in question were detailed as follows: at 7:53, he was reportedly in Kwinella (which, clarified as Kiang Nema by mobile phone antenna data), then moved to Kanily at 8:48, Bwiam at 8:52, Sibanor at 9:03, Tampoto at 9:07, Somita at 9:09, Besseh at 9:11, Kafuta at 9:21, Farababanta at 9:27, Kuloro at 9:36. Subsequently, between 10:03 and 12:52, he was located in Brikama. Following this, from 13:18 until around 16:00, he was in Kafuta, after which he returned to Brikama and eventually moved back towards Kwinella by midnight.

Hon. Justice Mahoney emphasized that this sequence of events aligns with the testimony of PW7, who claimed that on the morning of December 18th, both he and the 1st accused were in Brikama, waiting for others before being picked up by the driver. The driver then transported them to Kafuta for the meeting.

Furthermore, Hon. Justice Mahoney pointed out that this information also supports the account provided by PW4, the driver, who attested to picking up the accused from Brikama and driving them to Kafuta for the aforementioned meeting.

“The call log Exhibit P9 and P10 also reveal that in the morning of 18″ December, he spoke to PW7, 2nd Accused, 5th Accused and PW4. In fact he called and was called multiple times by the four above witnesses and Accused persons and particularly PW4 until around 12:30 and the 2nd Accused until around 13:30 when they got to Kafuta. Then when in Kafuta, there was a two-hour gap when no calls were made (between 13:30 and 15:30). All this goes to confirm that the 1st Accused communicated with the 2nd Accused and PW4 the driver and went to Kafuta and spent two hours,” he said.

Honorable Justice Mahoney emphatically pointed out a stark contrast in the narratives presented during the trial. The first accused, in stark contradiction to the evidence provided by others, merely denied any knowledge of a meeting in Kafuta. The first accused failed to provide any plausible explanation for being in Kafuta, engaging in multiple conversations with PW4, who transported them to Kafuta, and communicating with the second accused from Brikama to Kafuta. Additionally, the first accused was implicated in discussions with the fifth accused and PW7.

Justice Mahoney underscored the significance of the first accused’s silence and lack of explanation, asserting that it added weight to the credibility of the testimonies provided by PW7 and PW4. The judge emphasized that the evidence of the first accused’s communications on December 18th supported the accounts given by PW7 and PW4 regarding a meeting in Kafuta. In the absence of any clarification from the first accused, Justice Mahoney concluded that the testimonies of the aforementioned witnesses gained more credibility.

Reiterating key points, Justice Mahoney emphasized that the first accused had communicated his intention to overthrow the government to PW3 and PW7. The judge highlighted a telephone conversation between PW3, Mamat Jobe, and the first accused, which was overheard by others, including PW8, a military intelligence officer. According to the judge, these elements contributed to the prosecution’s case against the first accused. The judge further supported this conclusion by referencing the evidence provided by PW4 and PW7, the call log detailing the first accused’s communications, including the individuals involved, locations, and timestamps.

Combining all the presented evidence, Justice Mahoney expressed certainty that the first accused had orchestrated and participated in the Kafuta meeting with the intent of plotting the overthrow of The Gambia’s government. Acknowledging the potential bias of accomplice witnesses PW4 and PW7, the judge nonetheless accepted their testimony, noting that it was corroborated by the call log and supported by other independent evidence. In conclusion, Justice Mahoney declared unequivocally that, considering the entirety of the evidence, there was no doubt in the court’s mind that the first accused had indeed conspired to overthrow the government of The Gambia.

“I reiterate that the evidence of the 1st Accused informing PW3 and PW7 about his intention to overthrow the Government and the telephone conversation between PW3 Mamat Jobe and the 1st Accused to the hearing of others particularly PW8 the military intelligence officer, all support the case against the 1st Accused. This is buttressed by the evidence of PW4 and PW7 and the call log of the 1st Accused’s telephone numbers which show who he communicated with, where he communicated from and at what time he communicated.

“All this evidence put together leaves me with no doubt that the 1st Accused organised and attended the meeting in Kafuta to prepare for the overthrow of the Government of The Gambia. There is evidence from an independent source PW3 and the evidence of the accomplices PW7 and PW4 and the call log. I have averted my mind to the evidence of PW4 and PW7, they being accomplices and note the danger of acting on their evidence but in consideration of the other evidence available as noted above and their demeanour in Court, I accept their testimony as corroborated by the call log. AIl the evidence together leaves me with no doubt that the 1st Accused planned to overthrow the Government of The Gambia,” Hon. Justice Mahoney stated.

Regarding the case against the 2nd Accused for the charge of treason, Hon. Justice Mahoney emphasized that the evidence hinges solely on the testimony of PW4 Mustapha Jabbi, the driver responsible for transporting the 1st Accused, 3rd Accused, and PW7 Karamo Jatta to the compound of the 2nd Accused in Kafuta. It was at this location that a crucial meeting allegedly took place. Additionally, the account provided by PW7 Karamo Jatta, who participated in the said meeting, furnished further details on the proceedings.

Reiterating the point made earlier, Hon. Justice Mahoney underscored that both PW4 and PW7 were accomplices, making it imperative to seek independent evidence to substantiate their claims. The judge emphasized that the corroboration of evidence is essential in such a serious matter as treason.

Furthermore, Hon. Justice Mahoney clarified that one accomplice’s testimony cannot serve as corroboration for another accomplice. He acknowledged the possibility of relying on the evidence of an accomplice, provided the judge issues a proper warning to himself. However, in the context of a treason charge, it remains crucial that the evidence is supported by independent corroboration.

Adding to the discourse, Hon. Justice Jaiteh commented on the exculpatory nature of the extra-judicial statement given by the 2nd Accused. He pointed out that the call log, in isolation, does not contribute significantly to proving the alleged offense. Justice Jaiteh stressed the need for substantial evidence, independent of the call log, that can be corroborated to establish the case against the 2nd Accused.

“I find no corroboration available or no sufficient corroboration available. The fact that the 1st Accused spoke to the 2nd Accused person over the phone is not enough. In the circumstances, the Prosecution has not proved the guilt of the 2nd Accused as concerns treason within the requirements of the law,” he stated.

Regarding the case against the 3rd Accused for the charge of treason, Hon. Justice Mahoney emphasized that the evidence primarily rests on the testimonies of key witnesses. He pointed to the account provided by PW4, the driver who transported both the 1st and 3rd Accused, along with PW7, Karamo Jatta, to the 2nd Accused’s compound in Kafuta. According to the judge, this location served as the setting for a significant meeting. Furthermore, PW7’s testimony not only echoed PW4’s account but also delved into additional details about the said meeting.

Justice Mahoney made a critical observation, stating that there is no substantial support for the Prosecution in the extrajudicial statement provided by the 3rd Accused. He highlighted the absence of reliable evidence in this regard.

Additionally, the judge brought attention to the fact that both PW4 and PW7 are considered accomplices, emphasizing that one accomplice cannot serve as corroboration for another accomplice. Drawing a parallel with the 2nd Accused, he asserted that the Prosecution has failed to meet the legal requirements in proving the 3rd Accused’s guilt concerning the charge of treason.

“Again both PW4 and PW7 are accomplices. An accomplice cannot corroborate another accomplice. Just as for the 2nd Accused, the Prosecution has not proved the guilt of the 3rd Accused as concerns treason within the requirements of the law,” he stated.

In relation to the case of the 5th Accused concerning the charge of treason, Hon. Justice Mahoney highlighted that the incriminating evidence is found in the testimony of PW4. This testimony revolves around the instances when the 5th Accused was taken to a spiritual practitioner, known as a marabout, on multiple occasions. Additionally, the court took into consideration the evidence provided by PW2, who is one of the marabouts consulted in connection to the alleged coup d’état.

“Both PW2 and PW4 are accomplices. Just as for the 2nd Accused and the 3d Accused, the Prosecution has not proved the guilt of the 5th Accused as concerns treason within the requirements of the law,” Hon. Justice Mahoney said.

On the second count, which charges the 1st, 2nd, 3rd, and 5th individuals with treason under section 35 (1) (g), alleging a conspiracy to overthrow the Government, Hon. Justice Mahoney emphasized the necessity to establish that there was a mutual agreement among two or more persons to pursue a common objective.

Regarding Count 1, Hon. Justice Mahoney declared that there exists substantiating evidence against the 1st Accused, suggesting his intent to overthrow the Government. This conclusion was drawn from the testimonies of PW3, PW4, PW7, and PW8, as well as the examination of the call log. Notably, Justice Mahoney clarified that this evidence specifically pertains to the 1st Accused.

In the case of the 2nd, 3rd, and 5th Accused individuals, Justice Mahoney noted that the evidence against them relies solely on the accounts of PW2, PW4, and PW7, who are all considered accomplices. Justice Mahoney underscored that, according to the law, evidence provided by accomplices requires corroboration. Furthermore, it is legally untenable for one accomplice to corroborate another. Consequently, Justice Mahoney concluded that there is insufficient valid evidence against the 2nd, 3rd, and 5th Accused individuals to substantiate the claim that they conspired to overthrow the Government as alleged in Count 1.

Expanding on this point, Hon. Justice Mahoney argued that if there is no credible evidence demonstrating that the 2nd, 3rd, and 5th Accused individuals agreed to overthrow the Government, and the same evidence is relied upon to establish their alleged agreement with the 1st Accused, then such evidence cannot be considered valid for the same legal reasons.

“Consequently, as the Prosecution is required to prove that there was an agreement between the 1st, 2nd, 3rd and 5th Accused persons to prosecute a common purpose which is unlawful, that is conspiracy to overthrow the Government, and the only evidence properly applicable is the evidence against the 1st Accused, there is no proper proof of an agreement between the 1st, 2nd, 3rd and 5th Accused persons. As I indicated above, apart from the evidence against the 1st Accused, the only evidence against the 2nd, 3rd and 5th Accused persons is evidence of accomplices. The offence of treason requires corroboration. An accomplice cannot corroborate another accomplice. I find no proper corroborating evidence of the agreement to overthrow the Government as stated previously. For these reasons, Count 2 is bound to collapse,” Hon. Justice Mahoney stated.

The second, third, and fifth individuals facing charges are accused in counts 3 and 4 of concealing treason, as per section 36 (a) of the Criminal Code. Additionally, the second and third accused are charged with concealing treason under section 36 (b).

In accordance with Section 36, Concealment of treason, an individual who, being aware that someone else intends to commit treason, fails to (a) promptly provide information to a Minister, Magistrate, police officer, or a member of the Armed Forces, or (b) make reasonable efforts to prevent the offense, is considered to have committed an offense and is subject to imprisonment for life upon conviction.

The essential elements of the offense of concealing treason include: (a) the accused person’s knowledge of another person’s intention to commit treason and (b) the accused’s failure to promptly provide information to a Minister, Magistrate, police officer, or member of the Armed Forces, or (c) the accused’s failure to make reasonable efforts to prevent the commission of the offense.

Honorable Justice Mahoney emphasized that Section 38 of the Criminal Code stipulates that a person charged under section 35, 36, or 37 of the Code cannot be convicted solely based on the uncorroborated testimony of a single witness.

According to Justice Mahoney, the evidence related to the concealment of treason by the second, third, and fifth accused individuals is presented in the testimony of PW2, PW4, and PW7, all of whom are accomplices.

Furthermore, Justice Mahoney clarified that the testimonies of PW1, PW3, and PW8 exclusively pertain to the first accused’s preparations to overthrow the government and do not implicate the other accused individuals.

“In the circumstances, the same reasons why Count 2 collapsed against the 2nd, 3rd and 5th Accused persons also apply to Counts 3 and 4 in that the evidence against the said three Accused persons are all from the testimonies of accomplices, and an accomplice cannot corroborate another accomplice. Section 36 on concealment of treason requires corroboration and there is no proper corroboration, the call log or the operation plan being mainly relevant to the 1st Accused person only,” Hon. Justice Mahoney stated.

On Count 5, the 1st Accused faces charges of Inciting to Mutiny under section 40 (c) of the Criminal Code. The prosecution contends that the accused sought to incite Sergeant Karamo Jatta (PW7) and Captain Mamat Jobe (PW3) to engage in mutinous activities.

According to Section 40, Inciting to Mutiny, it is an offense for an individual to attempt to (a) seduce any person in the armed forces or police force from their duty and allegiance to the State; (b) incite such a person to commit mutiny or any traitorous act; or (c) incite such individuals to form a mutinous assembly, with the penalty of imprisonment for life upon conviction.

Justice Mahoney elucidated that “incite” is defined in Black’s Law Dictionary as to arouse, urge, provoke, or encourage, especially in criminal law where it entails instigating, persuading, or inducing another to commit a crime. Additionally, “mutiny” in criminal law refers to an insurrection of soldiers or seamen against the authority of their commanders, constituting sedition or revolt in the army or navy.

The essential elements of Mutiny under section 40(c) are outlined as follows: (a) The accused attempted to incite a person serving in the armed forces; (b) To organize an assembly for the purpose of insurrection or revolt.

Justice Mahoney pointed out that the evidence supporting the charge against the 1st Accused regarding incitement to mutiny is found in the testimonies of PW3 Mamat Jobe and PW7 Karamo Jatta. PW7 asserted that the 1st Accused requested him to mobilize a platoon of 30 men for the coup.

Further details from PW7’s testimony involved the preparations for the coup, particularly the events surrounding the meeting on December 28th. PW3 testified that the 1st Accused disclosed his coup plans, referring to PW3 as “our CPU.” When questioned about the meaning of CPU during cross-examination, PW3 claimed ignorance.

Justice Mahoney emphasized that the Prosecution must substantiate that the 1st Accused attempted to incite PW3 and PW7 to form an assembly with the intent of insurrection or revolt.

“From the evidence of PW3, there is nothing about persuading or moving him to commit a revolt or insurrection. PW3 said the 1st Accused told him of his plans. That is not enough to establish incitement to mutiny. And from the evidence of PW7, the 1st Accused also told him of his plans to overthrow the Government and asked him to mobilise a platoon of 30 men. Although there is no requirement for corroboration for an offence under Section 40, I must bear in mind that PW7 is an assumed accomplice. His evidence must be treated with caution. It would be safer if there was corroboration before relying on the evidence,” Hon. Justice Mahoney said.

Honorable Justice Mahoney also expressed that given the absence of corroborating evidence regarding the incitement to mutiny, and relying solely on the statement of PW7 that the 1st Accused had urged him to mobilize a platoon of 30 men, he would be hesitant to consider this as conclusive proof of an attempt to incite mutiny. He held the view that Count 5 had not been proven beyond reasonable doubt.

“In conclusion, on Count 1, the 1st Accused Lance Corporal Sanna Fadera is hereby found guilty of Treason contrary to Section 35 (1) (a) of the Criminal Code in that he prepared overthrow the Government of The Gambia and is hereby convicted of same. The 2nd 3rd and sth Accused persons on Count 1 – treason contrary to Section 35 (1) (a) are hereby acquitted and discharged.

“The 1, 2nd 3rd, and 5th Accused persons on Count 2 – treason contrary to Section 35 (1) (g) are hereby acquitted and discharged. The 2nd 3rd and 5th Accused persons on Count 3 concealment of treason contrary to Section 36 of the Criminal Code are hereby acquitted and discharged. The 2nd and 3rd Accused persons on Count 4 – concealment of treason are hereby acquitted and discharged. The 1st Accused person on Count 5 – incitement to mutiny is hereby acquitted and discharged,” Hon. Justice Mahoney delivered on his judgment.

Hon. Justice Mahoney’s Sentencing of the 1st accused person (Lance Corporal Sanna Fadera)

Honorable Justice Basiru V. P. Mahoney, presiding over the High Court of the Gambia, has imposed a 12-year imprisonment sentence on Lance Corporal Sanna Fadera, who was found guilty of treason.

The decision was rendered following Honorable Justice Mahoney’s assessment of the evidence, which indicated that Fadera had actively plotted to unlawfully overthrow the government of the Gambia.

Prior to the sentencing verdict, Counsel LS Camara, representing Sanna Fadera, presented a plea for mitigation, urging the court to consider a less severe punishment for his client.

Counsel LS Camara specifically implored the court to refrain from imposing the death penalty on Sanna Fadera, citing the court’s authority under Section 27 of the Criminal Code to administer a lesser punishment for offenses punishable by death.

In his plea, Counsel LS Camara highlighted Sanna Fadera’s status as a first-time offender, emphasizing his youth and pivotal role as a lab scientist providing valuable service to the people of Kiang and the Gambia at large. Camara brought attention to Fadera’s four young children and his role as the sole provider for both his extended and nuclear family. Additionally, he underscored Fadera’s dedicated 12-year service in the Gambia Armed Forces (GAF), even after completing a degree at the University of the Gambia.

Given these circumstances, Counsel LS Camara appealed to the honorable court to exercise mercy in its judgment, advocating against life imprisonment or the death penalty for Sanna Fadera.

“My lord, this court has the jurisdiction and powers to hand down a lesser punishment to the 1st accused. This court is empowered to hand down any punishment for any offence punishable by death as stated in section 27 of the Criminal Code. The convict (Sanna Fadera),  yes the allegations were contested, evidence were adduced but as far the records are concerned he is a first-time offender. He is young and at the age of his prime. My lord, he is a lab scientist who provided a magnificent service to the people of Kiang and the Gambia at large. 

“He (Sanna Fadera) has four children, very young children, and my lord, he is the only breadth winner in his extended and nuclear family. He has served the Gambia Armed Forces (GAF) so well and distinctively. He served in the Army for 12 years even after completing his degree at the University of the Gambia,  he still went back to the Army to serve his country. It is against this background, that I am urging this honorable court to temper justice with mercy to not hand down life imprisonment or death penalty to the convict (Sanna Fadera),” Counsel LS Camara pleaded to the court. 

Counsel LS Camara passionately appealed to the court for a more lenient sentencing for Sanna Fadera, emphasizing the inherent fallibility of human beings and the inevitability of making mistakes.

In response to Counsel LS Camara’s plea for mitigation, AM Yusuf, the Director of Public Prosecution representing the state, acknowledged the court’s judgment.

DPP Yusuf informed the court about the state’s intention to appeal the acquittal and discharge of the 2nd, 3rd, and 5th accused individuals. He urged the court to order the remand of the 2nd, 3rd, and 5th accused pending the appeal’s hearing and determination at the Court of Appeal.

Highlighting the seriousness of the charges, DPP Yusuf noted that, despite the absence of loss of lives, treason carries a capital punishment. He underscored the potential adverse consequences for the nation had the coup been successful.

“The weight of the sentence will send a strong message to any attempted coup and it will also serve as a deterrent against all attempted coup in the future,” he told the court. 

In response, Counsel LS Camara objected to the State’s request to remand the 2nd, 3rd, and 5th accused individuals.

Counsel LS Camara asserted that there is no legal basis justifying the remand of the 2nd, 3rd, and 5th accused persons, especially after they have been acquitted and discharged.

“The accused persons have been in custody for nearly one year now without bail. So if the court found them not guilty my lord, then They ought to enjoy the fruit of the liberty given to them by this honorable court,” Counsel LS Camara told the court.  

Furthermore, Counsel LS Camara contended that the court possesses discretionary authority to release the 2nd, 3rd, and 5th accused persons.

In pronouncing the sentence, Hon. Justice Mahoney expressed that after listening to the plea in mitigation presented by Counsel for the 1st Accused, who has recently been found guilty of Treason under Section 35 (1) (a) of the Criminal Code, and considering the Director of Public Prosecution’s response, he deems the death penalty inappropriate in the absence of violence.

Hon. Justice Mahoney noted that the alternative is life imprisonment, yet he highlighted the provision of Section 29 of the Criminal Code, emphasizing its purpose: the court may invoke it when determining that a lesser sentence is suitable.

Pointing out the aggravating factors, Hon. Justice Mahoney underscored the severity of the offense—Treason, involving the preparation to unlawfully overthrow the Government of The Gambia. He emphasized the legal disapproval of such actions, emphasizing that constitutional processes, specifically elections, should be the sole means of changing a government. In a contrasting manner, the mitigating circumstances considered were the absence of violence during the commission of the offense and the personal background of the convict. The accused, a young individual serving in the Army and working as a lab technician, holds a Bachelor’s Degree in biology and chemistry from the University of The Gambia. Notably, the accused has no previous criminal convictions, as pointed out by Hon. Justice Mahoney.

“The aggravating factors in this case are that the offence is Treason – preparing to overthrow the Government of The Gambia by unlawful means. This, the law generally frowns upon as the only way to change a Government is by elections as constitutionally provided. The mitigating circumstances on the other hand are that there was no violence employed in the commission of the offence. The convict is a young person engaged in the Army and working as a lab technician having graduated from the University of The Gambia with a Bachelor’s Degree in biology and chemistry. He has no previous convictions,” Hon. Justice Mahoney stated.

Hon. Justice Mahoney stated that he believe the severity of the offence deserves some period of imprisonment but considering the conditions of the country’s prisons, imprisonment for life would be very harsh in the circumstances.

“I will therefore invoke Section 29 of the Criminal Code and impose a lesser sentence on the convict. I believe this was done previously in other Section 35 offences. In all the circumstances, I will impose imprisonment on the 1st Accused convict and sentence him to 12 (twelve) years imprisonment for the offence of Treason,” Hon. Justice Mahoney stated.

In response to the Director of Public Prosecution’s announcement of the intention to appeal the judgment against the 2nd, 3rd, and 5th Accused individuals, Hon. Justice Mahoney asserted that the State has the right to appeal decisions it finds unsatisfactory. However, Justice Mahoney expressed strong reservations about the prospect of remanding the individuals who have been acquitted and discharged, emphasizing that such an action would run counter to the foundational principles of the country’s Rule of Law system and the safeguarding of fundamental rights.

Having undergone a thorough trial in a Superior Court of Record and having been declared not guilty, Hon. Justice Mahoney is of the opinion that detaining these individuals would be inconsistent with the principles of the Rule of Law and the protection of fundamental rights.

Furthermore, he contends that it would be ethically questionable, particularly in light of his determination that there are numerous other accomplices who have never faced charges and are currently free.

“Looking at Section 285E of the Criminal Procedure Code, it also allows for bail to be granted pending appeal and in the circumstances, I shall not hesitate to grant bail pursuant to Section 285E of the Criminal Procedure Code. In the circumstances, the 2nd, 3rd and 5thAccused persons (acquitted and discharged persons) are hereby granted bail in the sum of D100.000 each with one Gambian surety who must depose to an affidavit of means. The 2nd 3rd and 5th Accused persons are also to surrender any I.D. Cards and Passports they have with the Registrar of the High Court. The Prosecution is to file the necessary Notice and Grounds of Appeal within 30 days from today failing which the order for remand shall lapse,” Hon. Justice Mahoney delivered his judgment on the matter.

The information has reached this medium that on November 20, 2023, the office of the Attorney General and Ministry of Justice filed an appeal against Hon. Justice Mahoney’s judgment.

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