Ousainu Bojang at the high court
By Landing Ceesay
Honourable Justice Ebrima Jaiteh of the High Court of the Gambia has ruled to admit the confessional statements made by Ousainou Bojang, who stands accused in the tragic deaths of two Police Intervention Unit (PIU) Officers at Sukuta Jabang Traffic Lights.
This ruling stems from an objection raised by Lamin J. Darboe, representing the 1st Accused Person, regarding the admissibility of cautionary and voluntary statements purportedly made by the 1st Accused Person.
The cautionary and voluntary statements, labeled VD1 to VD15, have been presented to the court.
The 1st Accused Person, Ousainou Bojang, is challenging the admissibility of these statements, citing involuntariness as the primary ground.
The claim of involuntariness revolves around allegations that the Anti-Crime Unit drugged him and subjected him to physical assault, with no independent witnesses present.
During the preliminary trial (voire dire), the prosecution summoned two witnesses: Ebou Sowe, the police officer who documented the statements, and Alieu Cham, the independent witness present during their recording.
In his defense, the 1st Accused Person, Ousainou Bojang, testified and called upon the 2nd Accused Person, Amie Bojang, as a witness.
“I have listened very carefully to the testimonies of prosecution’s witnesses and have listened keenly to the testimony of the 1st Accused person (Ousainou Bojang) and his witness and the addresses made by Counsel for the Defence and the prosecution.
“I believe this voire dire only gives rise to only one issue and that is: Whether the prosecution has proved beyond reasonable doubt that exhibits “VD1” to “VD14”, were obtained voluntarily from the 1st Accused person having regard to the evidence on record?,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said it is the cardinal principle in criminal cases that, the legal and evidential burden of proof lies on the prosecution.
Hon. Justice Jaiteh further asserted that the burden of proving the voluntariness of a confession lies on the prosecution and the standard of proof is beyond reasonable doubt.
He said from the foregoing, it is clear that the prosecution must succeed on the strength of its own evidence and not allowed to rely on the weakness of the defence or lies told by the accused as the basis for admission of the cautionary and voluntary statements.
“In our present case, the prosecution must prove that the applicable law in obtaining confessional statements from the accused person as contained in section 31(1) of the Evidence Act 1994 are complied with. Section 31(2) of the said Act which thus provides that:
“(2) A confession shall not be admissible if the statement was made by an accused while under arrest, in detention, or restriction by state agents unless the confession was made in writing by the accused in the presence of an independent witness, the witness not being member of the police, Armed or Security Forces.” Hon. Justice Jaiteh said. Honorable Justice Jaiteh emphasized the significance of section 31(2) of the Evidence Act, affirming that it guarantees every accused individual the right to document their statement. If unable to do so personally, they are entitled to designate someone else for the task. This right, he stressed, must be explicitly communicated by the police to the accused.
Moreover, Justice Jaiteh underscored the existence of common law practices derived from the Judges’ Rules, providing guidance to police officers in their administrative procedures. He emphasized that these rules, designed to streamline the administration of justice, should never be manipulated to obstruct justice.
Justice Jaiteh further clarified that in The Gambia, the Judges’ Rules are established under section 55(3) of the Courts Act as subsidiary legislation. Specifically, they are outlined in the Judges’ Rules (The Gambia) Cap 6:01 (Subsidiary) LN 54 of 1964.
“It is a settled principle of law that any police officer in the course of investigation may question anybody whether suspected or not from whom he or she thinks he or she may obtain useful information, and may record a statement or statements from such person.
“The guiding principles of the police and other persons concerned in the investigation of crime as to the interrogation of persons, the manner of recording statements and the admission in evidence of statements, whether verbal or written, made by the accused persons are governed by the Judges’ Rules. Therefore, it is imperative that a police officer in the investigation of crime, interrogation of persons and recording of statements of accused persons is mandated to substantially comply with the Judge’s Rules so as to ensure that confessions are voluntary,” he said. Justice Jaiteh emphasized the critical adherence to rules 4, 5, 6, 7, 8, and 9 of the Judges Rules during the proceedings.
Subsequently, Honorable Justice Jaiteh elaborated on the content of these rules in support of his decision.
He underscored that the Judges Rules explicitly specify that a police officer must only document a statement with the explicit consent of the accused.
In the present case, the police officer who recorded the statements of the first accused individual, Ousainou Bojang, affirmed in court that despite Bojang’s literacy, he requested assistance in drafting his statements.
“I have carefully looked at the statement of the 1st Accused obtained on the 14th day of September 2023, admitted as Exhibit VD1, and on the face of Exhibit VD1, there was no independent witness present as required by section 31(2) of the Evidence Act, 1994. The presence of an independent witness is mandatory and the failure of an independent witness thus rendered the cautionary statement obtained on the 14th of September inadmissible and this I shall hold as a fact. The witness PW1 also admitted in his evidence in chief and under cross-examination that an independent witness was not present when Exhibit VD1 was recorded on the 14th of September 2023,” Hon. Justice said.
For exhibit VD2, which was recorded on the 15th of September 2023, Hon. Justice Jaiteh said he had carefully perused Exhibit VD2 and there was an independent witness present by the person of Alieu Cham of Sukuta and therefore section 31(2) of the Evidence Act, 1994 has been complied with.
Hon. Justice Jaiteh said on the face of Exhibit VD2, the place, date, and time as to when it was recorded is clearly stated on it.
Hon. Justice Jaiteh asserted that the 1st Accused was cautioned in Wolof and Mandinka language and the Accused thumb printed to the fact that he was cautioned.
“Therefore, the recording of Exhibit VD2, the cautionary statement obtained on the 15th of September 2023 thus substantially complied with the Judges’ Rules and this I shall hold as fact. The independent witness testified to the fact that he was present when the Accused narrated the incident and gave his statement voluntarily to the police officer Ebou Sowe.
“PW1 (Ebou Sowe) in his evidence also testified that the 1st Accused was not beating or being administered with any drug to give his cautionary statement. The independent witness also testified that he did not see anyone beat the 1st Accused or administered any drugs on him. PW1 testified that the 1st Accused was in sound health and did not make any complaint of ill-health. I therefore reach the conclusion that Exhibit VD2 – the Cautionary statement was given voluntarily and in line with the Judges’ Rules and section 31(2) of the Evidence Act 1994,” Hon. Justice Jaiteh said.
With regards to Exhibits VD3 to VD14 which are voluntary statements of the 1st accused person (Ousainou Bojang) where he accepted the various charges levelled against him by the police.
Hon. Justice Jaiteh the provided the date and time exhibits VD3 to VD 14 were recorded by the Police Anti Crime Unit Officers.
On the issue of Exhibit D3 which is the Anti-Crime Unit diary of activities, Hon. Justice Jaiteh said it does fall under the Judges’ Rules requirement or under section 31(1)(2) of the Evidence Act.
“Keeping a police diary is a matter of effective and efficient administrative practice and the failure to record the cautionary or voluntary statements in the police diary will not vitiate a confessional statement or other documents made by an Accused person. In fact, Exhibit D3, the Anti – Crime Unit diary for the 15th September 2023 on entries 86 to 90 clearly stated that cautionary and voluntary statements of the 1st Accused were obtained at various times ranging from 13:30 hour to 14:35 hours.
“I reiterate, the entries of cautionary and voluntary statements in police diary is not a legal requirement but a good administrative practice. I must emphasis that the voluntary statements thus substantially complied with the Judges Rules as the 1st accused was cautioned, the place, the time and date were recorded on the said voluntary statements and this I shall hold as a fact. The independent witness Alieu Cham was present as the charges were levelled against the 1st Accused person,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh further ruled that from the evidence of the independent witness, and having perused the record of proceedings, the 1st Accused (Ousainou Bojang) did not accept charges as stated on prosecution Exhibits P2, P3, P4, and P5 (a),(b)&(c), however accepted the charges on Exhibits VD3 to VD14 thus confirmed that the 1st Accused accepted some charges but denied others charges.
Hon. Justice Jaiteh said it follows therefore that the testimony of the independent witness is credible and he believes him.
Hon. Justice Jaiteh also ruled that he does not believe that the independent witness receiving and making calls during the recording of the extra judicial statement violate the law or the Judges’ Rules and cannot vitiate said statements.
Hon. Justice Jaiteh asserted that In view of the fact that the recording of Exhibits VD3 to VD14 are in full compliance with the Evidence Act and the Judges’ Rules, the said statements are admissible.
“I am also mindful that the 1st accused denied the charges and subsequently accepted the said charges will be considered in light of the totality of the evidence adduce at the end of this trial. The fact that the police have adhered to these Rules in their investigation of a crime, would guide this court in determining the weight to be attached to any confessional statement made by the 1st Accused person.
“The extra- judicial statements were read over to the 1st Accused and confirmed in the presence of an independent witness is sufficient to render the said statements admissible. It would be in the interest of justice to admit these extra judicial statements as they are relevant in this trial and the weight to be attached shall be determined at the end of the trial,” he said.
Hon. Justice Jaiteh further delivered that Ousainou Bojang testified that he was given coffee and he drank it and went into sleep.
Hon. Justice sasi the 1st Accused did not state how the coffee affect his health other than putting him into sleep and did not raise any complaint to the police or any other person of any ill-health as a result of the coffee he drank.
“He (Ousainou Bojang) did not also produce or subject himself to any toxicology test to suggest that he was drugged. The 1st Accused testified that he was beaten to confessed but he refused to confess by the officers who beat him and I wonder why did he then thumb printed blank / empty papers without knowing the content of the said papers? By the 1st Accused thumb printing the thus authenticates the content the papers. At this juncture, the testimony of the 1st Accused person raises more questions on his credibility as to the involuntariness of the cautionary and voluntary statements, Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said In his view, a reasonable person who was mercilessly beaten to confess but refused do so would not merely thumb print blank papers without knowing the content that would be written on it.
He said It defeats logic and reason to believe the testimony of the 1st Accused person in this situation.
“I am not convinced and persuaded by his testimony as to the involuntariness of the extra-judicial statements. Under the circumstances, I am satisfied that Exhibit VD2 to VD14, the cautionary statement and voluntary statements are in compliance with section 31(2) of the Evidence Act and thus substantially complied with the Judges’ Rules and therefore admissible in evidence as exhibits and this I shall hold as a fact. There was no evidence led on the witness statement of Ebou Sowe and therefore same shall be admitted into evidence as exhibit,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh then admitted the confessional statements of Ousainou Bojang into evidence and mark them.
“In spite of the fact that these extra -judicial statements are now admitted into evidence, it is incumbent upon this court to determine the weight pursuant to section 96 of the Evidence Act, 1994 to be attached to it before proceeding to act on them,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh then adjourned the case to Tuesday for continuation.