Having been found guilty for
peaceful possession, the opposition UNITED DEMOCRATIC PARTY LEADER Lawyer
Ousainou Darboe had written a very personal address detailing his life from
childhood, Education, Profession and commitment to Gambia and humanity. The Nigerian
mercenary judge denied him the guaranteed right as defendant, to speak or read
this. Full text below:
========================
IN THE HIGH COURT OF THE GAMBIA
CRIMINAL CASE NO.
HC/179/16/CR/060/AO
BETWEEN:
THE STATE ... COMPLAINANT
AND
OUSAINOU DARBOE ... 1ST ACCUSED
PERSON
KEMESSENG JAMMEH…… 2ND ACCUSED PERSON
FEMI PETERS ... 3RD ACCUSED
PERSON
LAMIN DIBBA ... 4TH ACCUSED
PERSON
LAMIN JATTA … 5TH ACCUSED PERSON
YAYA BAH … 6THACCUSED PERSON
BABUCARR CAMARA … 7TH ACCUSED PERSON
FAKEBBA COLLEY … 8THACCUSED PERSON
ISMAILA CEESAY … 9TH ACCUSED PERSON
MOMODOU FATTY … 10THACCUSED PERSON
DODOU CEESAY … 11THACCUSED PERSON
SAMBA KINTEH … 12TH ACCUSED PERSON
MAMUDU MANNEH … 13TH ACCUSED PERSON
NFAMARA KUYATEH … 14TH ACCUSED PERSON
FANTA DARBOE … 15TH ACCUSED PERSON
LAMIN NJIE … 16TH ACCUSED PERSON
JUGUNA SUSSO … 17THACCUSED PERSON
MOMODOU L.K SANNEH ... 18TH
ACCUSED PERSON
YAYA JAMMEH … 19TH ACCUSED PERSON
MASANEH LALLO JAWLA … 20TH ACCUSED PERSON
ALLOCUTUS OF OUSAINOU DARBOE WAS NOT
ALLOWED TO MAKE UPON CONVICTION ON 20TH JULY 2016
May it please the Honourable
Court, I am 67 years old. At the age of 19 I started the
pursuit of knowledge in earnest.
I focused on attaining qualification for admission to
University. My goal was to read
philosophy and political science. Then I had no vision.
In the Christmas of 1967, I was
home for the Christmas vacation. On a day, the exact
date of which I cannot recollect,
I found my father sitting with some of his constituents –
my father was then the Honourable
member representing Lower Fulladu in the House of
Representatives. He introduced me
to his supporters in words I have never forgotten
and I will never forget i.e
“Camrade (meaning comrades) this is my son, he is in form six
in Gambia High School and when he
is finishes his study in Gambia High School, he will
go to England to study and come
back to be the Commissioner M.I.D (McCarthy Island
Division)”. His comrades prayed
for my success at my exams and the fulfillment of my
father’s dream.
From that day I had a vision – a
vision to have a University degree and return to The
Gambia to serve my people,
particularly the people of M.I.D now C.R.D. (Central River
Division). I envisioned myself
going to the villages to talk to the people not just as an
administrator but as their
brother, cousin, nephew and son. One who can easily
appreciate that the problems
faced by every person in M.I.D is the same problem that
my mother, aunt and uncle face.
However my father’s dreams which
formed the basis of my vision in life was not to be.
An incident occurred in this
country whilst I was still a sixth former. The President of
Senegal had made a statement
which in effect described The Gambia as a nation of
smugglers. This did not go down
well with the well informed and educated young men
of the day most of whom viewed
the then Senegalese President as a neo-colonialist
and such insults would not be
tolerated. This statement was made a few days before
the Senegalese President was due
in Banjul to officially open a branch of the B.I.C.I
Bank in Banjul. The occasion for
the opening of the B.I.C.I. Bank provided an
opportunity for some Gambians to
protest at the statement that tended to show Gambia
in a bad light. In the course of
the protest, information reached our school that a
member of the teaching Staff of
the school was arrested. The class to which I belonged
was the most senior class in the
school. Some of us trooped out and came to the
Police Station at Buckle Street,
where we believed our teacher was detained. The
police quickly dispersed us. I
took refuge in the then Supreme Court. Although I was
brought up by Gambia’s most
prominent lawyer P.S. N’jie, I had never seen the inside
of a court room except that day.
I sat in the court room watching the lawyers arguing
and I loved the Latin phrases
they uttered.
On this day, I decided to
disappoint my father. I no longer had the vision of becoming a
provincial administrator. I
wanted to become a lawyer and worked hard to pass my
Advance Levels with grades that
will make it difficult for a university in any
Commonwealth country to reject my
application for admission.
My Lady, in September 1969, I got
news from the Ministry of Education that AAI
secured a place for me at the
University of Lagos, Africa’s Premier University, to read
law and that the entire cost of
my studies – University to Law School – would be met by
the AAI. At University, I had the
privilege and honour of being lectured by one of the
most distinguished Lecturers,
Professor I.O. Elias.
My Lady at the beginning of my
third year in University, I started envisioning my role in
Gambian society. From the cases I
read in criminal and constitutional law, I concluded
that I must become a State Law
Officer, rising through the ranks to become Solicitor
General or Director of Public
Prosecution and ultimately branch off to the bench and be
one of the Honourable Justices of
The Gambia.
It was my vision that I will
bring up my family in the way a great man, Solicitors-General,
Directors of Public Prosecution
or Justices bring up their families and give them the best
of education, taking them for
holidays to the U.K, U.S.A and of course Nigeria. My
vision then as a law student was
rather self-centered. The focus was on me as a
person and my family.
In May 1973, I returned to The
Gambia after passing my final exams for the law degree
and took up appointment as a
Prosecutor. Due to the state of the laws regulating the
admission to the Nigeria and
Gambia Bar, I could not be called to the Bar until
November 1973. I became the first
Gambian to pursue his first professional legal
training outside, England,
Ireland or Wales. I also became the first person of Provincial
origin to become a lawyer and I
am also the first Mandinka who with pride describes
himself as Barrister.
My Lady, upon being admitted to
the Bar in November 1973, I was appointed a State
Counsel. I started seeing the
fulfillment of my selfish and self-centered vision being
achieved. I served as a Law
Officer for seven years, during the period that I was in the
law office, I was conflicted with
myself. As a civil servant I knew I was subject to the
direction of my superiors but as
a Barrister, particularly when appearing in court, I held
myself answerable to no one
except the ethics of my profession. One of the positions I
held in the Ministry of Justice
was Acting Registrar General and Curator of Intestate
Estates. At this time, I was also
responsible for drafting of legislations. The leadership
of the Gambia Workers Union was
not making life easy for the Government. The Union
was not in compliance with the
law as to the filing of annual returns. As Acting Registrar
General, I, on instructions of my
superiors de-registered the Worker’s Union. I went
home in distress. I pondered on
the various legal theories, I read in jurisprudence. In
this particular case I saw the
Marxist theory of law at play i.e that the law is an
instrument of oppression in the
hands of the oppressor. The governor uses the
law to subdue the governed.
My Lady, since that day, I have
fought hard to ensure that whenever and wherever I
can, whatever I do as a lawyer
will negate the Marxist theory. I became a staunch
disciple of Jeremy Benthan – I
subscribed and still subscribe to the view that the
law must be used to promote the
greatest happiness of the greatest number.
My Lady, in my humble view one of
the ways to promote the greatest happiness of the
greatest number is to fearlessly
stand for and uphold the rights of the ordinary persons
and protect them against
executive excesses. I have always believed that the criminal
justice system should really be
used to combat crime.
My Lady, in my humble view one of
the ways to promote the greatest happiness of the
greatest number is to fearlessly
stand for and uphold the rights of the ordinary persons
and protect them against
executive excesses. I have always believed that the criminal
justice system should really be
used to combat crime and criminals. It should never be
used to get at political
opponents or perceived political opponents. I expressed my total
rejection of the use of the law
to suppress rights in or about 1980 when a gentleman by
name M.I. Jallow was brought
before the Kanifing Magistrates’ Court on an allegation of
murder. In those days persons
accused of murder were subject to a preliminary inquiry
depending on the sufficiency of
the evidence, the person is either indicted on
information or discharged.
Section 99 of the Criminal Procedure Code was then
unadulterated. The right to bail
was presumed. M. I. Jallow was granted bail. The
State Law Office was unhappy. I
was assigned the file to apply to the Supreme Court
(now the High Court) to vacate
the order granting bail. Mr. Jallow was a prominent
member of the “NTerrikafo”, a
group of people perceived to be opponents of the then
ruling party. I examined the
reasons advanced by the Magistrate in granting bail and I
found myself unable to argue
against it. I faced my client – the Gambian state, then
personified by the Attorney
General in this particular instance and said to him, “I will not
go to court and argue in favour
of a position that I do not believe in”. My refusal to
argue a case I do not believe in
was dictated by my belief that when I pick up a case file
and proceed to court, I cease to
be bound by any directive or administrative code. I am
independent but I also realized
that such independence might have limits and I do not
want to be bugged down by
limitations – so I proceeded on five months vacation during
which period I tendered my
resignation. My vision of being a career Law Officer came
to an end but the reasons leading
to it helped shape a vision that is more altruistic.
I set up Basangsang Chambers in
June 1980. The first two cases – criminal – in which
I was involved as part of the
defence team again revealed to me that the executive,
even if the government however
democratic, law abiding and benevolent may use the
law to suppress dissent. I, with
Mr. Secka, a lawyer of sharp intellect and profound
ability defended some gentlemen
who were charged for managing an unlawful society.
We also defended a group of young
men who were alleged to have been in possession
of arms. The evidence showed that
the arms were in fact bows and arrows. I stood
against the misuse of the
criminal justice system and sided the oppressed.
My Lady, in July 1981 there was
an attempt to overthrow the democratically elected
government by a group of people
who did not seem united in their objective. The
attempt failed resulting in
massive arrests. A state of emergency was declared. I
appeared and defended at least
two hundred people who were brought before the
Review Tribunal established to
investigate the allegation of involvement in the failed
coup and make recommendations to
the President for their release. From 1981, I
represented accused persons in
some of the most celebrated criminal cases – amongst
them The State v S.M. Dibba, The
State V Musa F.K. Sanneh & ors, The State v
Ebrima Barrow. These are some of
the treason cases in which I offered pro bono
services for the sake of justice.
I also argued some of the most celebrated
constitutional law cases – Halifa
Sallah & ors, V Speaker of the National Assembly, U.D.P v AG, Kemesseng Jammeh v AG
& U.D.P, N.R.P & allied Momodou K. Sanneh v AG. In the areas of
administrative law, I have to my credit the case of Continent Bank v Central Bank. My
Lady today in every court of The Gambia, the case of the Fatou Badjie v Joseph
Bassen is cited daily in support of one or other
proposition of law. I am proud
that I took up some of the issues in the Supreme Court. I
am gratified that in my advocacy
I have contributed to the development of the
jurisprudence of this country in
various ways. In some of the treason cases, I was ably
assisted by Mr. A.A.B Gaye of
counsel.
In my practice I had the
privilege of appearing before several judges the majority of
them being Nigerians. They included
the Honourable Justices Adeyinka Morgan, E.O
Ayoola Sr, E.O Ayoola (CJ),
Olatawura, Akanbi, Wali, Ejiwumi, Ahmed Belgore, A.D.
Yahya, C.S Yusuf, N, Izuako,
Okoi-Itam, Ihekire, Omosun (CJ). Gambia was never so
blessed. I was proud and still
proud that the country in which I received my legal
education could produce so
eminent and fearless jurists willing to serve in a sister
African country to uphold the
rule of law.
My Lady speaking of eminent
Nigeria Jurists, it will be remiss of me if I fail to mention
Honourable Justice Ota and Agim.
The latter we all know was at one time Chief
Justice. Before then he was
D.P.P. I locked heads with him in many cases. I will just
mention the cases of IGP v Omar
Amadou Jallow, a senior executive member of the
opposition P.P.P. and the State v
Ebrima Barrow & Ors earlier mentioned. Honourable
Justice Agim was one of the most
accomplished prosecutors I faced. We both have
enormous respect for each other.
He, like Chief Justice E.O. Ayoola often exchanged
views with me on legal issues and
the administration of the judiciary. My Lady, in my
readings of cases from various
Commonwealth and Common Law jurisdictions, I
became particularly impressed
with the judicial valor of Honourable Justice Belgore
CJN, Hon. Justice Oputa, Hon,
Justice Esso, Hon, Justice Obaseki, Hon. Justice Uwais,
Hon. Justice Wali, Hon. Justice
Karibi-White amongst many other justices of the
Nigerian judiciary. It is a fact
that these justices faced the greatest challenges any
judicial officer could face. They
had the onerous task of dispensing justice in an era
dominated by military
dictatorship. Yet they demonstrated by their decisions that the law
speaks the same language under a
military dictatorship as under a democratically
elected government. Such cases as
Obuya Memorial Hospital v AG, Ojukwe v
Military Governor of Lagos State
are ample testimony to the fact that these justices of
the superior courts of Nigeria
would do nothing but to advance the rule of law and keep
executive excesses at bay.
My Lady, when a Nigerian national
assumes office as one of the Justices of the
Superior Courts of The Gambia I
look for an Obaseki, Esso, Oputa, a Wali, a Belgore,
an Ejuwumi, an Ayoola, a
Karibi-White and all those justices of the Nigerian judiciary
who are the subject of the book
titled “Tribute to Courage”. The opinions of those
great defenders of the law have
influenced me a lot in my practice of the law. They
have provided for me the elan to
be more of service to the public than to my family. It
was in the spirit of serving the
public that I took the risk of defending many members,
ministers and public officers –
of the ousted regime. In fact, I was detained by the
military junta. This did not
deter me in my quest for justice for those who for good
reason fall out of favour with
the Executive.
My lady, during the military
rule, it dawned on me that any government whether a
dictatorship or a true democracy
turns first to lawyers for whatever its wishes to
accomplish. It is the lawyers
that draft the most draconian legislations. It is also the
lawyers that draft and draft
legislation that catalyst economic growth and development
with its attendant by products.
It is also the lawyers who help put in place a constitution
that may or may not establish an
autocratic rule.
My Lady, the preamble to the 1997
Constitution states amongst other things that “we
the people of The Gambia have
accomplished a great and historic task. We have
had our say on how we should be
governed”. My Lady, I was part of that historic
task and I have had a say in how
we Gambians should be governed. I did so in this
very court room wherein members
of The Gambia Bar Association met to make
recommendations to the
Constitutional Review Commission on the new Constitution of
The Gambia. I was then Vice
President of The Gambia Bar Association. I was also a
part of a small group of lawyers
comprising Mr. O.M.E Sillah, Mr. P.C.O. Secka of
blessed memory, Hon Justice R.C.
Sock that submitted various recommendations to the
Constitutional Review Commission.
Of interest to me is the
independence of the judiciary. I saw then the threat to the
independence of the judiciary. I
believed that a provision such as Section 120 (3) of the
Constitution, together with an
Esso type of Judges will guarantee the absolute
independence of the judiciary. I
believe that with an independent judiciary no one will
starve of justice. I believe that
with an independent judiciary, democracy will be
constitutionalised.
In August 1996, I was compelled
to answer the call of Gambians who believe in
democracy, constitutionalism and
the rule of law to lead the United Democratic Party. It
was and still is the hope of
ushering in true democratic values in The Gambia. The
United Democratic Party seeks to
falsify Karl Marx’s theory that the law is an instrument
of oppression. The United
Democratic Party believes in utilitarianism – to use the law
as a vehicle for the maximization
of the happiness of the greatest number of people.
Since 1996, I have been on the
side of the law. I have encouraged my supporters to
respect the law and eschew
violence. That is why, except in the cases presided over by
foreign nationals, members of the
U.D.P who have faced prosecution in this country
have been acquitted.
It is my cardinal belief that
every law enforcement officer has the authority to arrest
persons suspected of having
committed an offence. But I reject the slightest notion that
a law enforcement officer has
authority to arrest any person and subject him to torture
resulting in his death. This is
murder. I cannot condone it, and no civilized nation
will condone it.
My Lady, I objected to The Gambia
Police Intervention Unit’s arrest of Ebrima Solo
Sandeng and his subsequent
detention at the premises of the National Intelligence
Agency during which period he was
murdered. His death was never communicated to
his family or his political
associates. There was no Coroner’s inquest to ascertain the
cause of his death. His remains
have not been delivered to his family. The ordeal he
went through before he breathed
his last breath is deposed to in an affidavit sworn to by
Nogoi Njie filed in support of
the habeas corpus application pending before this
Honourable Court.
On the same day and at the same
N.I.A. premises, Fatoumatta Jawara, Fatou Camara
and Nogoi Njie were brutalized by
persons who one can only conclude are agents of the
N.I.A. They were subjected to the
most horrendous acts of brutality. They were not
only humiliated by the thugs. The
torture inflicted on them was more severe on the
most private parts of their
lives. The humiliation, the horrendous
acts of barbarism meted
out to these women is humiliation and barbarism to all
women of Africa and The Gambia in particular.
My Lady, if these are not
sufficient and good reasons for any person with conscience to
go on a peaceful
demonstration/procession to ask for the release of Solo Sandeng dead
or alive, and to protest against
the humiliation and acts of thuggery committed on these
women? Every woman in The Gambia
today stands in solidarity with Solo Sandeng’s
wife. Every woman in Africa and
The Gambia in particular stands in solidarity with
Fatoumatta Jawara, Nogoi Njie and
Fatou Camara.
My Lady instead of the
perpetrators of these crimes of murder and torture of these
women being brought before the
courts to answer for their acts of criminality, I and my
people are flung before the
courts at the behest of our political adversary.
My Lady, I refuse to ask this
court to be lenient with me because in so doing I am
accepting the fact, that Mr.
Sandeng deserved to be tortured to death by the security
agents of this country. My Lady I
know the purpose of an allocutus but I refuse to ask
this court for leniency because
in so doing, I break rank with Fatoumatta Jawara, Fatou
Camara and Nogoi Njie who in
spite of their humiliation and acts of horrendous brutality
committed on them are now being
persecuted at the behest of our political adversary
whilst the real criminals are
walking freely on the streets of Banjul and congratulating
themselves for accomplishing
their acts of brutality.
When I was flung before the
court, I comforted myself with the belief that I will have the
full protection of the
Constitution and other laws of The Gambia. But I was disappointed.
My experience as an advocate led
me to conclude that my conviction as a pre-arranged
revelation in court. Every
procedural rule guaranteeing my fair trial was ignored. The
first theory any law student in
law school learns in that Civil Procedure Rules apply to
the trial of civil matters and
criminal Procedure Code applies to the trial of criminal
matters. My right to
representation by counsel as provided for by the constitution was
denied because this court ruled
that we the accused persons can defend ourselves
against the charges we face. I do
not know which Constitution in a common law country
makes a distinction between
offences for which an accused person can be represented
by counsel and those for which an
accused must defend himself.
I have not been availed the due
process of law. Because of my pre-arranged conviction
and because I strongly believe
that my political adversaries have their eyes on this
case, this court, it is very
evident that this court, as some of the ex tempore Rulings
show, has deprived me of a fair
trial. I will not in the circumstances ask the court for
leniency. To do so will be
accepting that I was availed the due process of the law when
I was not.
My lady, on 21st April 2016
heavily armed Police Intervention Unit Officers escorted me
and my co-accused to court. Your
Ladyship could not have failed to notice the
presence of these armed security
officers in and around the court. Since 21st April up to
date each day I come to court, I
do so in handcuffs. I am not indicted on any felony. All
Gambians who know me will attest
to the fact that I and my party members are not
violent and we eschew violence by
any one including members of all security outfits in
The Gambia.
Putting me and my co-accused
handcuffs is very symbolic and sends a significant and
profound message to all and
sundry. The handcuff represents the chain bondage, it
shows that there is no free-man
in The Gambia – we are all crawling under our political
adversary who towers above all of
us as a colossus. It also tells that no one can
truthfully give evidence in court
in a case such as the one I am involved in. It tells out in
no certain terms that even Judges
look over their shoulders in cases such as this. It
shows that there is no one in The
Gambia now is free to act according to the dictates of
his or her conscience.
It is my mission to reverse this
unacceptable state of affairs by means that accord both
the laws and constitution of this
country. It is my mission to actualize for Gambians the
preamble statement in the
Constitution that it “provides for us a fundamental law,
which affirms our commitment to
freedom, justice, probity and accountability.”
My Lady, logic demands that
ironies are rejected. One of the ironies in this case is that
Nigerian lawyers can reject the
application of the constitutional law principles
expounded by eminent Judges of
the courts in IGP v All Nigerian People’s Party. Those
principles are being rejected
because Nigerian Judges here believe that Nigerians
deserve better protection of the
constitutional provisions that are in pari material with the
1997 Constitution of The Gambia,
but we who are born and live in the birth place of the
African Charter on Human and
Peoples Rights sometimes called the Banjul Charter, we
who are born and live in the
country that hosts the African Commission on Human
Rights, the African Centre for
Democracy and Human Rights Studies and other
international human rights
organizations, we are born and live in the natural home for an
African Court for Human rights
can be denied the same protection by a court presided
over by a Nigerian aided by a
Nigerian who pretends to be a Prosecutor. It is for all
these reasons that I refuse to
ask the court for any leniency.
My Lady, I am not embarrassed by
this conviction. My children, brothers, cousins,
sisters are not embarrassed by my
conviction. My political family and my friends are not
embarrassed by my conviction.
Today I take pride standing amongst the likes of Chief
Obafeni Awolowo, Chief Anthony
Enahoro, Mallam Amunikodi, Ken Saro Wiwa,
President Olusegun Obasanjo, Dr,
Kwame Krumah, Nelson Mandela, Abdoulaye Wade
(former President of Senegal) and
President Alfa Condeh of Guinea.
My Lady I am prepared to receive
the sentence that I believe has also been predetermined
even before my arraignment.
But before receiving the
sentence, it is obvious to everyone that I am the prime target of
this persecution. I would
therefore ask that the other accused persons be sentenced to
time already served.
============= The end =============
