Mr. Editor:
On the 21st March 2006, the quasi-military government of the West African state of The Gambia announced that it has foiled a coup to topple the regime of President Yahya Jammeh. Several senior military officers and some prominent civilians including a sitting member of Parliament from the ruling APRC, Hon. Demba Dem were subsequently arrested and, with the exception of Ms. Mariam Denton, a prominent lawyer-cum-politician and the disgraced Ex-Speaker of Parliament, Mr. Sheriff Mustapha Dibba among a few, charged with offences ranging from treason to concealment of treason. Under the 1997 Gambian Constitution, the offence of treason is punishable by death. The accused military officers were arraigned before a military tribunal headed by Justice Chief Akeyome Agim, an Appeal Court Judge and former Director of Public Prosecution, while the accused civilians were tried by the regular High Court. 
Justice? Agim- a spineless jurist
The Military tribunal found all the accused military officers guilty as charged and sentenced them to various prison terms including life imprisonment. None of the accused was, however, given a death sentence.
Prior to their trial and subsequent convictions, the state owned radio and television services GRTS, broadcasted purported confessions from the accused persons. These purported confessions later constituted essentially, a fundamental part of the prosecution’s case during trial thus, prompting the defense to attack their admissibility in evidence citing very serious concerns about their voluntariness. The tribunal responded by employing the ‘vior dire’ instrument as a means of determining the admissibility of the confessions. ‘Vior dire’ is a legal instrument normally employed during trial to determine the admissibility of confessions in which factual issues about the manner in which they were obtained frequently arise. It is sometimes referred to as a ‘trial within a trial’.
Why Are The Confessions Significant?
Any adverse admission relevant to the issue of guilt in a criminal proceeding is known at common law as ‘confession’. Although subject to the overriding consideration that they must be obtained voluntarily, confessions are one of the most reliable evidence that can be produced before a court of law. The underlying justification for this view is that a party would not voluntarily make a statement adverse to his case unless it was true. Therefore, if the confessions heavily relied upon in evidence, by the state during the tribunal’s proceedings were obtained voluntarily, they would not only be admissible in evidence but would also be one of the most reliable evidentiary pieces of law a tribunal would seize on to hand down a sound conviction against the defendants.
Were The Confessions Voluntary?
It is a fundamental requirement at common law that the admissibility in evidence of any confession against any person, equally of any oral answer given by that person to a question put to him by an investigating authority e.g. a Police officer, and of any statement made by that person that it should have been voluntary in the sense that it has not been obtained from him by fear of prejudice, hope of advantage or by oppression. (See Ibrahim v. R [1914] AC 599). Thus, the confessions adduced in evidence by the prosecution cannot be said to be voluntary if they were obtained by means of the aforementioned exercised or held out by a person in authority.
In their testimonies as reproduced by Foroyaa Newspaper, almost all the accused contended that their confessions were obtained by means of torture including electrocution. 2nd Lt. Pharing Sanyang stated that the investigating panel presided over by one Mr. Momodou Hydara, a senior intelligence officer at the notorious National Intelligence Agency, had asked him to write a confession statement to the effect that he knew about the coup and was part of it but that when he refused, he was fixed to two electric wires and got electrocuted. He further stated that it was as a result of the terrible pain he endured from this cruel ordeal and an advice from one Capt. Martin that writing a confession statement was the only way of saving his life that he eventually wrote one. Ms Mariam Bah-Darboe, the wife of Capt. Yaya Darboe, testified that she had found her husband with a swollen face during her first visit to his place of imprisonment. This claim was further buttressed by a Medical officer from the Eye Department of the Royal Victoria Hospital who testified that the accused left eye was red, the lid turned and the pupil larger as a result of the turned eye-lip. All these are clear attributes of torture. Capt. Bunja Darboe, an Ex- Army Spokesman, also testified showing several scars on his head which he attributed to the allege torture he endured in the hands of the soldiers aiding the investigation. Similar claims were made by Capt. John Mendy, Ex-commanding Officer of Fajara Barracks but in his case the torture did not prevail saved for inducing him to lie [purportedly] that he knew about the coup through one RSM Alpha Bah. According to Capt. Mendy, he was later persuaded to sign a pre-drafted cautionary statement after he was assured that he would be freed and charges against him dropped in exchange for his service as a prosecution witness during trial. In other words, the investigating authorities had exercised an advantage of hope as a means of obtaining a confession from him. These are serious allegations which if sufficed could potentially render the confessions inadmissible in any court of law on the grounds of being involuntary. This may as well bring the prosecution case on to its knees thereby leading to the acquittal of the defendants unless it is [the prosecution] able to induce very strong eccentric evidence[s] that are independent of the involuntary confessions and which strongly points to the defendants’ guilt beyond all reasonable doubts. It is to be noted that the mere fact that the defendants alleged that their confessions were involuntary does not necessary mean that the trial judge should refuse their admission in evidence. The allegations would have to be proven notwithstanding any suspicion they would/ may have generated over the credibility of the prosecution’s case. It is for this reason that the vior dire instrument had to be employed as a means of availing the tribunal the opportunity to investigate the allegations and satisfy itself with the truthfulness or lack of it of the allegations.
Standard of Proof
In a criminal case the standard required to proof the defendant’s guilt is ‘Beyond reasonable doubt’. The same standard of proof is required of the prosecution in relation to questions of admissibility in evidence relating to secondary facts such as the voluntariness of a confession. This burden is normally shouldered by the prosecution only. If for any reason the burden of proof on an issue affecting guilt is shifted on to the defense, it is not necessary for the issue to be proven beyond reasonable doubt. In that case the standard required of the defense is nothing higher than the burden of proof which would normally rest upon a plaintiff or an accused in a civil proceeding, ‘on a balance of probabilities’. (See R v. Carr-Briant [1943] KB 607). Given that it was the defense who asserted that the confessions were involuntary, they must therefore shoulder the burden of proof to that effect hence, the maxim: ‘He who asserts must prove’. In other words, the burden of proof at this point had shifted on to the defense. Thus, if after hearing submissions from both parties in the vior dire and on the basis of the evidence before it, the tribunal was in a position to conclude that on a ‘balance of probabilities’ the confessions adduced in evidence by the prosecution were obtained by means of torture and an exercise of advantage of hope, it should have concluded that the confessions were involuntary and therefore inadmissible. To thwart this, the prosecution would have to prove beyond reasonable doubt that the confessions were voluntary. If the defense were able to discharge their civil standard burden of proof, this would also mean the prosecution would not be able to discharge their own burden of proof as a reasonable doubt would have been generated over their case.
Did Justice Agim apply the right test?
In his ruling, the Judge Advocate, Justice Agim, ruled in the case of the 2nd accused person, Capt. Yaya Darboe and the 4th accused 2nd Lt. Pharing Sanyang that the allegation of torture and duress meted out against them were not proven beyond reasonable doubt. He justified his conclusion by citing two incidents in which the wife of the 2nd accused Ms. Mariam Bah-Darboe contradicted herself, implying that she was not credible. He also stated that the optical lenses prescribed and bought for the accused were not tendered in court as evidence. He further stated that the claims of 2nd Lt. Pharing Sanyang that he was stabbed with a bayonet and his head hit with a pistol was not proven by any medical report. It is explicitly clear from this that the learned judge had applied the “beyond reasonable doubt” test to reach his conclusion. This is clearly a misapplication of the substantive law as this test is only meant for the prosecution to satisfy. The defense only has to prove its case on a balance of probabilities. Given that the burden of proving the allegation of torture in this case resides on the defense, the learned judge should have applied the civil standard test of “on a balance of probabilities”. Whether this was a mere error or that the learned Judge Advocate has had extraneous reasons for his default especially, given that President Jammeh had recently praised him together with Justice M.A Paul alias Justice Eternity as the best judges in the country, his failure to apply the civil standard test in this case is a fundamental flaw which must have influenced his judgment.
Suppose the learned Judge Advocate had applied the civil standard test of “on a balance of probabilities”, would he have considered Ms. Darboe’s trivial contradictions as mere attributes of a traumatized wife so overcome by grief that she could not pay greater attention to every trivial detail of the physical wellbeing of her battered and imprisoned husband or would he still dismiss her as a lying wife of a renegade soldier even though substantial part of her testimony were collaborated by a medical expert who treated her husband? Would it have been required of the defense to tender the optical lenses prescribed for Capt. Yaya Darboe to make the testimonies of the medical expert witness watertight? Would he also have accepted the wounds on 2nd Lt. Pharing Sanyang’s, which he had himself examined, as evidence of torture despite not been backed up by a medical report and especially, given that the prosecution did not provide any alternative suggestion as to the possible cause of the accused person’s injuries? The answers to all these questions are known only to Justice Agim and God. Nevertheless, it would not suffice to say that the learned Judge Advocate would have still admitted the confessions in evidence even if he had applied the right standard of proof as that would be an irrelevant consideration. The fact that the learned Judge Advocate misapplied the substantive law on an issue that is so fundamental to the question of guilt is enough to render the convictions resulting from the conclusions thereto unsafe. In that respect, the convictions handed down on the military defendants are therefore unsafe and should be quashed.
S.S. Daffeh, Essex, UK.
Acknowledgement: - the author is indebted to Bantaba on Cyberspace for making available the Foroyaa Newspaper’s coverage of the tribunal’s proceedings, which he found very informative.