Monday, March 28, 2011

Acquit and Discharge Tamba and Fofana

Tamba & Fofana
Defence Counsels Sheriff Tambedou and Lamin K. Mboge have exhorted the High Court to acquit and discharge Langtombong Tamba and Sarjo Fofana on all four counts of treason.
The erstwhile Chief of Defence Staff (CDS) Tamba and Navy Chief Rear Admiral Fofana are standing trial on charges of treason before Justice Joseph E. Ikpala at the Special Criminal Division of the High Court in the Gambian capital, Banjul.
As the trial is winding down, lawyers Sheriff Tambedou and Lamin K. Mboge in their addresses to the Court called for the acquittal and discharge of their clients on Monday 21st March, 2011.

Tambedou, who represents the 1st accused (Tamba), told the court there is no evidence to showed that Tamba conspired with anybody to stage a coup against the democratically elected government of the Gambia.
He noted that the prosecution called six witnesses during the trial, while submitting when 1st prosecution witness (Momodou A. Bah) was informed by Ndure Cham about the said coup he reported the activities to Tamba. If Tamba was part of any conspiracy to stage a coup with Ndure Cham, he would have told Bah and he (Bah) would not have informed Tamba about Ndure Cham’s intention.
Backing his submission by citing section 155 of the Evidence Act 1994, Tambedou also referred the court to the evidence of witness (Bunja Darboe) and his cautionary statement (Exhibit C), saying that Tamba’s name has not been mentioned in any part of this statement.
Tambedou said when the 1st witness was asked under cross-examination whether Tamba was part of the panel of the Court Martial, his answer was in the negative and that in Fofana’s statement Tamba’s name has not been mentioned.
“The only prosecution witness who mentions the name of the 1st accused was Momodou Alieu Bah, but all he said was that when Ndure Cham informed him about his plan of staging a coup, he also relay that same information to the 1st accused person, but that cannot amount to any form of conspiracy,” he said.

He said the prosecution created a story from exhibit A (Tamba’s Statement), the prosecution only want to rely on substantial evidence and exhibit A did not indicated in anywhere that the 1st accused conspired with anyone to stage a coup. “The story of the 1st accused person in Exhibit A showed and guaranteed his stand in foiling the 21st March 2006 coup plot,” he said, citing an authority of Ghana Law Report and urged the court to discharge him on count one.
On count 2, he said only M.A Bah (1st witness) mentioned Tamba’s name. however, he agree with the prosecution on Section 144 of the Evidence Act 1994 which said that the burden to prove a case beyond all reasonable doubt rely on the prosecution.
Tambedou cited Section 38 of the Criminal Code, and submitted that if Tamba is charge under Section 35 to 36 of Cap10 of the Revise Laws, the Law says he cannot be convicted on collaborated evidence by one witness.
In this case, it is only MA Bah who mentioned Tamba’s name, but even if the court believe him, the law says before the court act on it, it most be collaborated and collaboration is clearly defined in Section 179 of the Evidence Act.
He agreed that a statement of an accused person can amount to collaboration, but the statement of the 1st accused does not collaborate with the evidence of Momodou Alieu Bah (PW1) in anyway.
He said in exhibit A the 1st accused said he was informed by Lamin Bo Badjie about Ndure Cham’s plan to overthrow the democratically elected government of the Gambia.
He submitted that when the 1st accused heard about the plan of Ndure Cham (the man behind the plot) Tamba’s first attempt was to see the president through the Chief Protocol Matarr Jarju, but he failed but relay the message to Matarr Jarju to inform the president about Ndure Cham’s plan.
He said the next day Matarr Jarju informed Tamba he relayed the massage to the president, the next step was that Tamba told Lamin Bo Badjie to keep an eye on Ndure Cham. “Who is Bo Badjie at that time? He was the Director of Intelligent Service of the Gambia,” Tambedou said.
He said Tamba again gave a tape recorder to one Mbye Gaye who have a meeting with Ndure Cham to record all what he will discuss with Ndure Cham and Tamba decided to called those that he trust, among them were Serign Modou Njie, State House Commander, Ousman Sonko, IGP at the time and Ousman Badjie and played the cassette in their presence.
Tambedou argued that Tamba is duty bound to act as the Deputy CDS at the time and that was why he called these people and start appointing commanders to mount positions in order to foil the planned coup by Ndure Cham.
Tambedou dismiss the prosecution’s claims that Tamba Serign Modou Njie not to tell anything to the president until Ndure Cham and Bunja Darboe were arrested, because he wanted to facilitate Ndure Cham’s escape.
He said Tamba asked Serign Modou Njie to tell the president only after these two people were arrested; noting that the story before the court is what Tamba did to foil the coup. He said there is no evidence in this case for the 1st accused to call the president an informed him about the coup. He said going through the Tamba’s statement it was Serign Modou Njie who informed the president, the president also informed the late Musa Jammeh who also informed Modou Lowe, and Lowe informed Ndure Cham to escape as the plan has been foiled. 

Lamin K. Mboge on behalf of Fofana (2nd accused) told the court that his client is charge with two counts of treasonable offences and the prosecution called six witnesses, but failed to prove their case beyond all reasonable doubt.
On count one, conspiracy to commit treason Contrary to Section 35(1) paragraph (g) of Criminal Procedure Code, the prosecution failed to adduce the evidence to prove that the Fofana conspired with anyone to stage a coup.
He said MA Bah who was convicted and sentence for the role he play in the said coup was called as the 1st prosecution witness, and he did not mention Fofana’s name. He argued that there is no evidence from witnesses 2, 3, 4 and 5 which showed Fofana conspired with anyone to stage a coup.
He said Fofana’s name is only mentioned in exhibit C (Bunja Darboe’s statement) and urges the court to treat the said exhibit with great caution as it did not collaborate with any evidence in record, citing Gambian law report to back his position.
Lawyer Mboge said Darboe’s statement is “inconsistent” with his evidence before the court, because he told the court that what he wrote in exhibit C is not true as he was induced so it was not voluntarily obtained. And Ndure Cham did not testify before this court that means exhibit C is not collaborated.
He reminded the court that Bunja Darboe in his testimony said he made a statement because he was promise to be released from prison, re-instated into the army and paid for all the time he spent in the prison. “So it’s not reliable and should not be considered by the court,” Mboge said, calling Darboe a “tentative witness” and one who has a motive to service. 
Neither exhibit C nor the un-sworn evidence of Bunja Darboe should be trusted, he said. The prosecution failed to prove the charge of conspiracy against Fofana because the only piece of evidence (exhibit C), is not sufficient.
On count 2, he said there is no evidence before the court to prove that Fofana committed treason. He reiterated his position on the inconsistency of the evidence given by Darboe.
The prosecution alleged that the 1st and 2nd accused persons have common intentions to execute the planned coup, however, Mboge maintain that there is no evidence in this regard.
He said evidence against his client is contradictory and inconsistent and he should not be convicted in such unreliable evidence. “The only justice that the court can do for the 2nd accused person is to acquit and discharge him as he is innocent of the said crime.”
Case adjourned till 23rd March, 2011 by midday for a rejoinder on point of law.  Source - The Voice  

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