ISSUE NUMBER 5/2004, 15-18 December, 2004
EDITORIAL
POSITIVE REACTION FROM JUDICIARY BUT QUESTION MARK ON RULE OF LAW
Foroyaa questioned the logic of establishing a new judicial system under a
new constitution without investing in the human resources to make them
operational. The superior courts of The Gambia are the Supreme Court, the
Court of Appeal, the High Court and the Special Criminal Court. The
constitution stated categorically under section 125 that " Within eighteen
months of the coming into force of this constitution, there shall be
established a Supreme Court of The Gambia which shall consist of the Chief
Justice and not less than four other justices of the Supreme Court and such
judge of the Court of Appeal as the Chief Justice may select."
The Supreme Court has been in limbo until the recent appointment of Justice
Isaac Aboagye and Justice Georgina Theodana-Wood of the Ghana Supreme Court;
Justice Irene Mambilima of the Supreme Court of Zambia and Justice Uthman
Muhammed of the Supreme Court of Nigeria.
Now the court would look into the pending cases starting from 24th January
2004, especially in the light of the announcement that the Supreme Court is
to seat next month. In the same vein, the appointment of Justice Gibou
Janneh as the first ever Gambian President of The Gambia Court of Appeal and
Justice Grante as Appeal Court Judge is also a step in the right direction.
Many cases have been pending at the level of the Appeal Court which were
delayed by structural bottlenecks.
What is equally interesting is the plan to hold the 2003 and 2004 legal year
commemoration together at the Law Courts Complex on Sunday 18th January
2004. This is to take place at a time when some state authorities are being
charged for contempt of court. In our view, the state authorities must get
their acts together and show respect to the judiciary before there can be
any commemoration.
The constitution stated categorically in section 120 subsections 4 that "
The government and all departments and agencies of the government shall
accord such assistance to the courts as the courts may reasonably require to
protect their independence, dignity and effectiveness." This is the verdict
of the constitution and it is irrevocable. Hence, there should only be legal
year celebration if the government respects the demands of the constitution.
The Attorney General has asked whether there is no rule of law in the
country. Foroyaa’s answer is there are lapses.
The most evident is detaining persons more than 72 hours without bringing
them before a court as constitutionally required for determination of what
should be done with them.
Secondly, the government has been disregarding very essential parts of the
law, thus undermining the proper administration of the country. We will just
quote a portion of the Local Government Act to prove our point. We will deal
with this subject in our next issue under the caption " Local Government in
Limbo." Section 24 of the Local Government Act states that " The emoluments
of a Chairperson shall be determined by an Act of the National Assembly."
Chairpersons are receiving salaries without any Act of the National Assembly
prescribing what they should earn.
The Attorney General is likely to be flabbergasted once we quote all the
sections that show total disregard for the rule of law in administering the
country.
Some people are not deliberately out to tarnish the image of the government.
What is being reported is the truth and it is being done in good faith, in
the public interest. What the Attorney General in particular and the
government as a whole should do is to take note of the facts and rely on it
to come up with policies and practices to improve the quality of governance
of the country. The NIA Director General should be freed from by the
executive from making political party statements, which undermine the
integrity of the institution. The head of the army, police and other
security units as well as the commissioners and managers of the public
services should be encouraged to perform their duties without fear or
favour, affection or ill-will independent of party colour.
Baba Jobe’s Trial
Part 6
Customs Declares D73 Million As Loses
When the case was called the DPP, Akimoyae Agim stood up to announce his
representation for the state, whilst the defence team for Baba Jobe, Baba
Kanteh and YDE were Mr. Lamin Jobarteh, Edu Gomez, Mai Fatty, Lamin K. Mboge
and Lamin Camara. The DPP expressed his sympathy and regret over the
shooting of Ousman Sillah. He prayed for is speedy recovery. He then called
for the third prosecution witness, the Acting Director General of Customs
and Exercise, Momodou Kaba Tambajang
Evidence of Momodou Kaba Tambajang
Q: Name?
A: Momodou Kaba Tambajang.
Q: Address?
A: I live in New Jeshwang, KM.
Q: Occupation?
A: Acting Director General of Customs and Exercise.
Q: Do you know the accused person in the dock?
A: Yes.
Q: When did you become acting Director General of Customs and Exercise?
A: September 2003.
Q: How long have you worked with the Customs?
A: 25 years with an interruption from September 2001 – September 20003
Q: What was your position before the interruption?
A: Deputy Director General.
Q: What are the normal procedures to be followed by consignees or importers
when dealing with customs when their goods arrive at the port?
A: Any time a ship arrives at the port the consignee or importer buys the
customs’ single entry administration form for D75, he or she fills in the
form, then attaches it to the manifest and bill of lading in respect of the
goods and forward them to the manifest office in the computer room, which
compares the declarations in those documents with the cargo manifest
supplied to customs by the shipping agency and when they tally, they
referred the importer to the customs seaport manager who is principal
collector for inspection and the importer again comes back to the manifest
officer in the computer room for assessment and evaluation of the amount to
be paid, before he/she is finally referred to the customs seaport manager
for the release of the goods to the importer or consignee.
Q: How does Customs get the cargo manifest?
A: They are sent to the Customs by the shipping agency.
Q: Is it in all cases that goods are released after payments are made?
A: No, not in all cases.
Q: Can you tell the court instances when goods are released without
payments?
A: Direct delivery for a period of 30 days or 45 days after which payment
should be made.
Q: How does this process come into effect?
A: Normally the importer writes an application to the Director General to
that effect. When it is approved, the customs seaport manager is notified,
the importer or agent takes the letter of approval with the manifest, the
single entry administration form and the bill of lading to the customs
seaport manager before the goods can be released
Q: Do importers sign the single entry forms?
A: Yes.
Q: When you resumed the position as Acting Director General, did you find
any thing in that office?
A: Yes, after I took over from my predecessor I had to assess all that had
been handed over to me. There, I discovered that in the documents relating
to YDE, a lot were not properly assessed and signed. I then sent them to Mr.
Malamin Sanyang a principal collector to properly evaluate them. Mr. Sanyang
then complied and had informed me that he had forwarded the figures to Buba
Senghore and Buba Baldeh who are the agents of YDE.
Q: What happens when the normal period of 45 days elapses and the importer
fails to pay?
A: The agent or the importer is notified that they are due.
Q: Where the importer shows no willingness to pay or comply, what does the
customs do or should do?
A: I think in that case the authorities should be informed.
Q: How does customs determine what amount to be paid on goods already
released to the importer?
A: We rely on the selling price of such goods at the time of their delivery.
Q: Were there indications of all goods imported by YDE on single entry
administration forms you sent to Sanyang?
A: Yes, some had been indicated.
Q: Whose name is indicated on single entry administration form?
A: YDE.
At this stage the DPP applied to tender the copies of two booklets
containing 66 single entry administration forms and the cargo manifests. Mr.
Mai Fatty of the defence team raised objection that there is no doubt to the
relevance of the document but that there is no proper foundation laid for
their admissibility. He urged the court to reject the application.
Mr. Momodou Lamin Jobarteh for his part objected on the grounds that the
documents are photocopies of computer printouts. He further submitted that
for the prosecution to even be allowed to tender the certified copies before
the court, section 22 of the Evidence Act had to be complied with. He then
submitted that since section 22 had not been complied with the court has no
option but to reject the documents.
In his submission, the DPP said that since the defence counsels have
accepted the relevance of the documents to the trial, there was no need for
them to object. The DPP added that much more the witness who is the chief
executive had told the court that the documents are from his custody which
is customs department and that he ordered their making by an officer who is
his direct subordinate. The DPP then reminded the court of the records of
the court on the documents that were tendered by the managing director of
GPA even though their documents were prepared by Aziz Samba, the finance
director and the defence did not object.
He further submitted that the contention of the defence that the documents
are computer printouts is a mere assumption. He urged the court to dismiss
the objection and accept the documents.
The judge then in is ruling dismissed the objection. The documents admitted
and marked them Exhibit W.
The DPP then asked the witness to look at exhibits U and W to tell the court
when the first and 66th invoices were prepared.
A: The witness said on the 21st July 2001 and 27th September 2002.
Q: Who certified them?
A: Mr. Landing Danso, assistant collector.
Q: Since then did the importer comply to make any payment?
A: No.
Q: Were they notified in writing?
A: Yes. As I said, Mr. Sanyang said he had informed agents of the YDE, Mr.
Buba Senghore and Buba Baldeh. The following day the two Bubas came to his
office to complain of the high value of the charges. I had invited Mr.
Malamin Sanyang and his deputy Baba Trawally who I believes are in position
of knowing more about the YDE imports. I told them in front of the two
customs officials that if their complaint is about the high value charged
they are contesting they have the right to forward valid invoices but they
did not comply. I was prompted to write to them through Mr. Malamin Sanyang.
Q: Do you have a copy of that letter in your office?
A: Yes.
Mr. Tambajang was shown a copy of the letter and he confirmed it. The DPP
then applied to tender the letter. There was no objection and it was
admitted and marked Exhibit X.
Q; Have they complied to bring their claimed valid invoices?
A: No. When they received my letter, the acting director came to my office
to say that they were prepared to send the invoices but that one of their
agents, Mr. Buba Baldeh had it and that they needed time for him to recover.
Buba Senghore came at another date into my office. I again he called Mr.
Malamin Sanyang and his deputy. In their presence Buba Senghore said that
since the mater had reached the courts, then the proper thing would be to
wait for the court’s decision. Mr. Tambajang said he had told Buba Senghore
that should the court accept their assessment, there would then be no
compromise.
Q: Afterwards did they make any payment?
A: Yes. They paid D1,334,000.00 when they later brought in a consignment of
flour, leaving a balance.
Q: Who certified the payment for the flour?
A: Landing Danso.
Q: Have the YDE complied with the writing of applications when hey need
direct delivery?
A: Not in all cases. Sometimes they do and there are instances when they do
not, based on the information I received from my predecessor. Mr. Tambajang
was shown one such application written by YDE and asked if it is such
application?
A: He replied in the affirmative.
The DPP applied to tender the letter. At this stage Mr. Jobarteh rose up to
say that he does not intend to object but he would like the court to take
note of the fact that it is trite law that in criminal matters of this
nature, to prevent the defence from being surprised with documents to be
tendered, the defence ought to be supplied with the summaries of the
evidence of witnesses and documents intended to be tendered by the
prosecution. The trial judge, Justice Paul took judicial notice of the fact
and said that the prosecution should supply the defence team with all such
documents, whether or not they ask for them. Justice Paul went on to add
that for the documents in question, after the prosecution is ready with the
witness, he would adjourn to allow the defence team to study the documents
and consult their client on the document. Mr. Gomez and Fatty all added
their voice to the stance of Mr. Jobarteh. Mr. Fatty added that earlier the
court had made a similar ruling on all exhibits in the care of the
prosecution to be supplied to them; that up to date they are not supplied
with relevant documents like copies of statements of prosecution witnesses
made to the police such as those of Adama Deen, Aziz Samba and Kaba
Tambajang, currently giving evidence. He submitted that the issue of the
current document in question is a clear example. The trial judge M.A Paul
repeated the same judicial notice and ordered the DPP to prevent any future
surprises to the defence. The DPP said that the comments are intended to
tarnish the image of the state that they would not go by the rules of
procedure, but if the court rules that they are bound to do so they would
comply by that ruling. Justice Paul told the DPP that the court is not bound
go by the rules of procedure; that they only helps the court to reach
justice but where the court finds out that they hamper the course of that
very justice, then the court is free to go by what will help it to freely
arrive at that justice. He then called for progress.
The DPP then produced eight (8) of such applications purported to have
emanated from the custody of YDE out of which five are typed and another
three are hand written. After a careful study of the documents by the
defence, Mr. Gomez rose up to object saying that for the five they are from
the YDE’s custody but that the other three that are hand written are very
confusing since one of them is bearing the office of the president as an
address and the next one TK Motors and for the third one the author is not
known. He said the one with address of the president’s office is dealing
with tractors and carpets while YDE does not deal in that. The one written
at TK motors deals with generators. Mr. Gomez then asked the court to
adjourn the case to enable them to consult their clients and associates. He
asserted that already the court is aware that the first accused is under
custody and they are not allowed to see him. He added that one of the
authors of one of he applications Kuru Kongira is detained at a location
that is not known by anybody. He finally made an application for the court
to make an order for them to be allowed t have access to the first accused,
Baba Jobe, on matters relating to the case as clients in the interest of
justice and all other associates of relevance to the documents.
For his part, the DPP simply urged the court to admit the said documents
since the defence had not raised any point of law in their objection to the
admissibility of the document.
The trial judge at this instant made ruling dismissing the objection of the
defence team and admitting the 8 documents as Exhibits Y and Y1 – Y7.
Q: Who signed Exhibit Y?
A: Kuru Kongira.
Q: Y2?
A: Baba Jobe.
Q: Exhibit Y3 I do not see any signature neither name.
Q: Y4?
A: The same as Y3.
Q: Y5?
A: Alasana SG Jammeh.
Q: Y6?
A: Alasana SG Jammeh.
Q: Finally what about Y7?
A: Baba Jobe.
Q: As a result did you suffer any loses?
A: Yes.
Q: How much was the loses you suffered in all from YDE?
A: D73 million.
Q: What is the position of Customs on government revenue?
A: We collect 60% of the national revenue.
Q: If such a trend continues what would happen in terms of the economic
position of the state?
A: We will end up in a serious crisis
Q: Were you able to collect 60% of the revenue in 2002?
A: No.
Q: What about in 2003?
A: Since I came in we have exceeded our normal collection since October 2003
by 20 or 15%.
End of evidence-in-chief of Momodou Kaba Tambajang, Acting Director General
of Customs and Exercise. The case was adjourned till 13th January 2004.
Sectoral Review Of President Jammeh’s Interview
Asked about the prospect of operation no compromise, the president
emphasized that he will pursue it up to the day before elections without any
respite, inadequacy or break.
He claimed that before he started the campaign the dollar was rising in
value by the day; that it has now been stabilized at D30. He indicated that
his government has enough resources to push the foreign exchange rate of the
dollar to D15 per dollar. He insinuated that those who hoard dollars are
likely to suffer the consequences.
Apparently, operation no compromise means many things to the president. Let
us focus on the prices of goods and the exchange rate of the dalasi, which
was his focus in the interview.
The Mystification Of Economics
Since the coup period the head of state has been guilty of mystifying the
economic realities of the country. In terms of projects he has always
claimed that the monies were coming from Allah’s world bank. Now "Allah’s
world bank" which constitutes loans have risen to 20 billion dalasis and is
consuming D1.5 billion of the 2.2 billion dalasis budget. It is making it
more difficult for government to meet the day-to-day needs of the various
departments of state.
In the same vein the president has attributed the rise in prices to
unscrupulous vampires aiming to increase the suffering of the people by
increasing prices. The depreciation of the exchange rate of the dalasi in
relation to other currencies is attributed by him to hoarding of the foreign
currency.
As far as the president is concerned the fundamentals of the economy are
correct. It is the saboteurs who are making things difficult for the people.
It is important to focus the mind of the president on the fundamentals again
so that he can see the root cause of the problem of inflation and
depreciation of the exchange rate of the dalasi.
First and foremost, the president claims that they have the resources to be
able to reduce the exchange rate of the dalasi to D15 per dollar. This is
fairy tale. They do not have such resources. The type of resources that can
encourage government intervention to regulate the currency market is to have
enough foreign exchange to pump in the currency market whenever there is
shortage of currency so that the supply will meet demand. It is when demand
exceeds supply that those who need the foreign exchange more and have the
means, pay more for it.
Suffice it to say, The Gambia earns foreign exchange from exports, tourism
and repatriation of earnings by Gambians abroad. It is clear that many
Gambians are resorting to Western Union money transfer. Hence the foreign
currency remains in the private banking system whose foreign assets have
been increasing.
This is confirmed by the SoS for finance in his speech. It reads:
"The expansion in the net assets of the banking system was entirely on
account of the commercial banks whose net external position at D1022.8
million at the end of September 2003 increased by D880.91 million compared
to end of 2002. The growth in deposit money banks not foreign assets was
attributed to a robust build up in balances held with banks abroad."
The lesson is clear, the commercial banks are building up their savings in
foreign currency abroad as safeguards against the depreciation of the dalasi
and to enhance their profits from interest rates offered by banks abroad
rather than from borrowers at home. This is one fundamental fact that the
president may not have alerted his mind to.
Secondly, foreign exchange comes from exports. The secretary of state has
indicated that exports for the year 2003 are estimated as 93.7 million
dalasis while imports are estimated as D4.0 billion dalasis, leaving the
country with a trade deficit of 3.9 billion dalasis. This confirms that
there is more foreign exchange flight due to imports than gains from
exports.
In fact, the re-export trade is what helps the country a lot in enabling the
importers to earn foreign exchange to continue their importation of goods.
Such foreign exchange remains in the hands of the re-exporters or the
commercial banks who are likely to make deposits abroad to acquire
interests.
A third sector where foreign exchange is derived is tourism. However, the
out of pocket expenditure of tourists confirms that the tourist industry has
very little linkage with the local productive sectors. Consequently, there
are leakages of foreign exchange.
It goes without saying that international grants are also reducing thus
limiting foreign exchange earnings from external aid.
How then can the government aid get enough foreign exchange to be able to
put enough foreign exchange in the market to satisfy demand to the point of
putting pressure on the foreign exchange market to resort to an exchange
rate of D15 per dollar.
In fact, the twin objectives of maintaining the external competitiveness of
the dalasi and to build adequate resources have not been achieved.
The secretary of state for finance has made it clear in his budget speech
that "between end December and September 2003 the dalasi depreciated on
normal terms by 43 percent, 50 percent and 55 percent against the US dollar,
pound sterling and Euro respectively in the inter-bank market."
Suffice it to say, he also added that "the net foreign assets of the Central
Bank dropped markedly during the year under review. This was due, in the
main, to the paucity of inflows of foreign exchange in the face of mounting
external debt payments. Foreign assets or gross official reserves fell by
42.2 percent from 1530.04 million to 883.67 million, slightly over three
months of import cover, at the end of September 2003."
It is therefore absolutely clear that there is in fact increased demand for
foreign exchange by government to pay interest and the principal of debts
amounting to D1.5 billion this year.
In short, the government, the banks, those in the parallel foreign exchange
markets, and those engaged in import-export are all scrambling for scarce
foreign exchange. How then can the dalasi appreciate to D15 per dollar? The
president should stop speaking the language of magicians and speak the
language of economists if he wants his words to restore confidence in the
courage of his government to accept the truth when it is seen by all.
In the same vein, prices of imported commodities cannot be reduced as long
as the world market prices remain the same and the exchange rate of the
dalasi continues to depreciate or even remain stagnant. This is all the more
so if customs dues and port charges increase.
In fact, the secretary of state for finance has confirmed in his budget
speech that even the sectors controlled by government are not immune to
inflationary pressures.
According to him "since the financial year 2000, NAWEC’s liquidity problem
has been worsened by the depreciation of the dalasi and the Iraqi war has
also affected the global price of petroleum products. In fact, the price of
a barrel of crude oil went up to $42." According to the SoS, "In order to
mitigate these losses, NAWEC was compelled to adjust its rates. Although
tariffs were increased by 70% and 40% for electricity and water respectively
in 2003, the anticipated benefits were eroded by oil price increases and the
depreciation of the dalasi." He therefore concluded that "The outlook for
2004 would require further tariff adjustments."
If the president cannot control the price of electricity and water supply
which is under his jurisdiction, what other promise can he make of price
controls that he can keep and why has he been accusing vampires for the
price increases? In fact, the SoS ended by announcing that "government has
decided the adjustment of the pump price of pms by D3." This increases the
pump price of petrol to D22 per litre with immediate effect, which had
effect on the movement of people and goods and cost of services and
commodities.
Let us take the opportunity to inform the president that as we go to press
we have been reliably informed that the price of a bag of flour has
increased from D540 to D650. In 1999 the price per bag was D150. Can the
president reduce the price to D150 today? It is very likely therefore that
there will either be an increase in the price of bread or a reduction of its
weight.
"Operation no compromise" is therefore not having any effect in making the
cost of living cheaper and quality of living better. In the areas of prices
and foreign exchange access the operation is meaningless. The president
therefore needs to move away from militarism to economics and explore a new
partnership initiative to address the elements of the economy
04
EDITORIAL
POSITIVE REACTION FROM JUDICIARY BUT QUESTION MARK ON RULE OF LAW
Foroyaa questioned the logic of establishing a new judicial system under a
new constitution without investing in the human resources to make them
operational. The superior courts of The Gambia are the Supreme Court, the
Court of Appeal, the High Court and the Special Criminal Court. The
constitution stated categorically under section 125 that " Within eighteen
months of the coming into force of this constitution, there shall be
established a Supreme Court of The Gambia which shall consist of the Chief
Justice and not less than four other justices of the Supreme Court and such
judge of the Court of Appeal as the Chief Justice may select."
The Supreme Court has been in limbo until the recent appointment of Justice
Isaac Aboagye and Justice Georgina Theodana-Wood of the Ghana Supreme Court;
Justice Irene Mambilima of the Supreme Court of Zambia and Justice Uthman
Muhammed of the Supreme Court of Nigeria.
Now the court would look into the pending cases starting from 24th January
2004, especially in the light of the announcement that the Supreme Court is
to seat next month. In the same vein, the appointment of Justice Gibou
Janneh as the first ever Gambian President of The Gambia Court of Appeal and
Justice Grante as Appeal Court Judge is also a step in the right direction.
Many cases have been pending at the level of the Appeal Court which were
delayed by structural bottlenecks.
What is equally interesting is the plan to hold the 2003 and 2004 legal year
commemoration together at the Law Courts Complex on Sunday 18th January
2004. This is to take place at a time when some state authorities are being
charged for contempt of court. In our view, the state authorities must get
their acts together and show respect to the judiciary before there can be
any commemoration.
The constitution stated categorically in section 120 subsections 4 that "
The government and all departments and agencies of the government shall
accord such assistance to the courts as the courts may reasonably require to
protect their independence, dignity and effectiveness." This is the verdict
of the constitution and it is irrevocable. Hence, there should only be legal
year celebration if the government respects the demands of the constitution.
The Attorney General has asked whether there is no rule of law in the
country. Foroyaa’s answer is there are lapses.
The most evident is detaining persons more than 72 hours without bringing
them before a court as constitutionally required for determination of what
should be done with them.
Secondly, the government has been disregarding very essential parts of the
law, thus undermining the proper administration of the country. We will just
quote a portion of the Local Government Act to prove our point. We will deal
with this subject in our next issue under the caption " Local Government in
Limbo." Section 24 of the Local Government Act states that " The emoluments
of a Chairperson shall be determined by an Act of the National Assembly."
Chairpersons are receiving salaries without any Act of the National Assembly
prescribing what they should earn.
The Attorney General is likely to be flabbergasted once we quote all the
sections that show total disregard for the rule of law in administering the
country.
Some people are not deliberately out to tarnish the image of the government.
What is being reported is the truth and it is being done in good faith, in
the public interest. What the Attorney General in particular and the
government as a whole should do is to take note of the facts and rely on it
to come up with policies and practices to improve the quality of governance
of the country. The NIA Director General should be freed from by the
executive from making political party statements, which undermine the
integrity of the institution. The head of the army, police and other
security units as well as the commissioners and managers of the public
services should be encouraged to perform their duties without fear or
favour, affection or ill-will independent of party colour.
Baba Jobe’s Trial
Part 6
Customs Declares D73 Million As Loses
When the case was called the DPP, Akimoyae Agim stood up to announce his
representation for the state, whilst the defence team for Baba Jobe, Baba
Kanteh and YDE were Mr. Lamin Jobarteh, Edu Gomez, Mai Fatty, Lamin K. Mboge
and Lamin Camara. The DPP expressed his sympathy and regret over the
shooting of Ousman Sillah. He prayed for is speedy recovery. He then called
for the third prosecution witness, the Acting Director General of Customs
and Exercise, Momodou Kaba Tambajang
Evidence of Momodou Kaba Tambajang
Q: Name?
A: Momodou Kaba Tambajang.
Q: Address?
A: I live in New Jeshwang, KM.
Q: Occupation?
A: Acting Director General of Customs and Exercise.
Q: Do you know the accused person in the dock?
A: Yes.
Q: When did you become acting Director General of Customs and Exercise?
A: September 2003.
Q: How long have you worked with the Customs?
A: 25 years with an interruption from September 2001 – September 20003
Q: What was your position before the interruption?
A: Deputy Director General.
Q: What are the normal procedures to be followed by consignees or importers
when dealing with customs when their goods arrive at the port?
A: Any time a ship arrives at the port the consignee or importer buys the
customs’ single entry administration form for D75, he or she fills in the
form, then attaches it to the manifest and bill of lading in respect of the
goods and forward them to the manifest office in the computer room, which
compares the declarations in those documents with the cargo manifest
supplied to customs by the shipping agency and when they tally, they
referred the importer to the customs seaport manager who is principal
collector for inspection and the importer again comes back to the manifest
officer in the computer room for assessment and evaluation of the amount to
be paid, before he/she is finally referred to the customs seaport manager
for the release of the goods to the importer or consignee.
Q: How does Customs get the cargo manifest?
A: They are sent to the Customs by the shipping agency.
Q: Is it in all cases that goods are released after payments are made?
A: No, not in all cases.
Q: Can you tell the court instances when goods are released without
payments?
A: Direct delivery for a period of 30 days or 45 days after which payment
should be made.
Q: How does this process come into effect?
A: Normally the importer writes an application to the Director General to
that effect. When it is approved, the customs seaport manager is notified,
the importer or agent takes the letter of approval with the manifest, the
single entry administration form and the bill of lading to the customs
seaport manager before the goods can be released
Q: Do importers sign the single entry forms?
A: Yes.
Q: When you resumed the position as Acting Director General, did you find
any thing in that office?
A: Yes, after I took over from my predecessor I had to assess all that had
been handed over to me. There, I discovered that in the documents relating
to YDE, a lot were not properly assessed and signed. I then sent them to Mr.
Malamin Sanyang a principal collector to properly evaluate them. Mr. Sanyang
then complied and had informed me that he had forwarded the figures to Buba
Senghore and Buba Baldeh who are the agents of YDE.
Q: What happens when the normal period of 45 days elapses and the importer
fails to pay?
A: The agent or the importer is notified that they are due.
Q: Where the importer shows no willingness to pay or comply, what does the
customs do or should do?
A: I think in that case the authorities should be informed.
Q: How does customs determine what amount to be paid on goods already
released to the importer?
A: We rely on the selling price of such goods at the time of their delivery.
Q: Were there indications of all goods imported by YDE on single entry
administration forms you sent to Sanyang?
A: Yes, some had been indicated.
Q: Whose name is indicated on single entry administration form?
A: YDE.
At this stage the DPP applied to tender the copies of two booklets
containing 66 single entry administration forms and the cargo manifests. Mr.
Mai Fatty of the defence team raised objection that there is no doubt to the
relevance of the document but that there is no proper foundation laid for
their admissibility. He urged the court to reject the application.
Mr. Momodou Lamin Jobarteh for his part objected on the grounds that the
documents are photocopies of computer printouts. He further submitted that
for the prosecution to even be allowed to tender the certified copies before
the court, section 22 of the Evidence Act had to be complied with. He then
submitted that since section 22 had not been complied with the court has no
option but to reject the documents.
In his submission, the DPP said that since the defence counsels have
accepted the relevance of the documents to the trial, there was no need for
them to object. The DPP added that much more the witness who is the chief
executive had told the court that the documents are from his custody which
is customs department and that he ordered their making by an officer who is
his direct subordinate. The DPP then reminded the court of the records of
the court on the documents that were tendered by the managing director of
GPA even though their documents were prepared by Aziz Samba, the finance
director and the defence did not object.
He further submitted that the contention of the defence that the documents
are computer printouts is a mere assumption. He urged the court to dismiss
the objection and accept the documents.
The judge then in is ruling dismissed the objection. The documents admitted
and marked them Exhibit W.
The DPP then asked the witness to look at exhibits U and W to tell the court
when the first and 66th invoices were prepared.
A: The witness said on the 21st July 2001 and 27th September 2002.
Q: Who certified them?
A: Mr. Landing Danso, assistant collector.
Q: Since then did the importer comply to make any payment?
A: No.
Q: Were they notified in writing?
A: Yes. As I said, Mr. Sanyang said he had informed agents of the YDE, Mr.
Buba Senghore and Buba Baldeh. The following day the two Bubas came to his
office to complain of the high value of the charges. I had invited Mr.
Malamin Sanyang and his deputy Baba Trawally who I believes are in position
of knowing more about the YDE imports. I told them in front of the two
customs officials that if their complaint is about the high value charged
they are contesting they have the right to forward valid invoices but they
did not comply. I was prompted to write to them through Mr. Malamin Sanyang.
Q: Do you have a copy of that letter in your office?
A: Yes.
Mr. Tambajang was shown a copy of the letter and he confirmed it. The DPP
then applied to tender the letter. There was no objection and it was
admitted and marked Exhibit X.
Q; Have they complied to bring their claimed valid invoices?
A: No. When they received my letter, the acting director came to my office
to say that they were prepared to send the invoices but that one of their
agents, Mr. Buba Baldeh had it and that they needed time for him to recover.
Buba Senghore came at another date into my office. I again he called Mr.
Malamin Sanyang and his deputy. In their presence Buba Senghore said that
since the mater had reached the courts, then the proper thing would be to
wait for the court’s decision. Mr. Tambajang said he had told Buba Senghore
that should the court accept their assessment, there would then be no
compromise.
Q: Afterwards did they make any payment?
A: Yes. They paid D1,334,000.00 when they later brought in a consignment of
flour, leaving a balance.
Q: Who certified the payment for the flour?
A: Landing Danso.
Q: Have the YDE complied with the writing of applications when hey need
direct delivery?
A: Not in all cases. Sometimes they do and there are instances when they do
not, based on the information I received from my predecessor. Mr. Tambajang
was shown one such application written by YDE and asked if it is such
application?
A: He replied in the affirmative.
The DPP applied to tender the letter. At this stage Mr. Jobarteh rose up to
say that he does not intend to object but he would like the court to take
note of the fact that it is trite law that in criminal matters of this
nature, to prevent the defence from being surprised with documents to be
tendered, the defence ought to be supplied with the summaries of the
evidence of witnesses and documents intended to be tendered by the
prosecution. The trial judge, Justice Paul took judicial notice of the fact
and said that the prosecution should supply the defence team with all such
documents, whether or not they ask for them. Justice Paul went on to add
that for the documents in question, after the prosecution is ready with the
witness, he would adjourn to allow the defence team to study the documents
and consult their client on the document. Mr. Gomez and Fatty all added
their voice to the stance of Mr. Jobarteh. Mr. Fatty added that earlier the
court had made a similar ruling on all exhibits in the care of the
prosecution to be supplied to them; that up to date they are not supplied
with relevant documents like copies of statements of prosecution witnesses
made to the police such as those of Adama Deen, Aziz Samba and Kaba
Tambajang, currently giving evidence. He submitted that the issue of the
current document in question is a clear example. The trial judge M.A Paul
repeated the same judicial notice and ordered the DPP to prevent any future
surprises to the defence. The DPP said that the comments are intended to
tarnish the image of the state that they would not go by the rules of
procedure, but if the court rules that they are bound to do so they would
comply by that ruling. Justice Paul told the DPP that the court is not bound
go by the rules of procedure; that they only helps the court to reach
justice but where the court finds out that they hamper the course of that
very justice, then the court is free to go by what will help it to freely
arrive at that justice. He then called for progress.
The DPP then produced eight (8) of such applications purported to have
emanated from the custody of YDE out of which five are typed and another
three are hand written. After a careful study of the documents by the
defence, Mr. Gomez rose up to object saying that for the five they are from
the YDE’s custody but that the other three that are hand written are very
confusing since one of them is bearing the office of the president as an
address and the next one TK Motors and for the third one the author is not
known. He said the one with address of the president’s office is dealing
with tractors and carpets while YDE does not deal in that. The one written
at TK motors deals with generators. Mr. Gomez then asked the court to
adjourn the case to enable them to consult their clients and associates. He
asserted that already the court is aware that the first accused is under
custody and they are not allowed to see him. He added that one of the
authors of one of he applications Kuru Kongira is detained at a location
that is not known by anybody. He finally made an application for the court
to make an order for them to be allowed t have access to the first accused,
Baba Jobe, on matters relating to the case as clients in the interest of
justice and all other associates of relevance to the documents.
For his part, the DPP simply urged the court to admit the said documents
since the defence had not raised any point of law in their objection to the
admissibility of the document.
The trial judge at this instant made ruling dismissing the objection of the
defence team and admitting the 8 documents as Exhibits Y and Y1 – Y7.
Q: Who signed Exhibit Y?
A: Kuru Kongira.
Q: Y2?
A: Baba Jobe.
Q: Exhibit Y3 I do not see any signature neither name.
Q: Y4?
A: The same as Y3.
Q: Y5?
A: Alasana SG Jammeh.
Q: Y6?
A: Alasana SG Jammeh.
Q: Finally what about Y7?
A: Baba Jobe.
Q: As a result did you suffer any loses?
A: Yes.
Q: How much was the loses you suffered in all from YDE?
A: D73 million.
Q: What is the position of Customs on government revenue?
A: We collect 60% of the national revenue.
Q: If such a trend continues what would happen in terms of the economic
position of the state?
A: We will end up in a serious crisis
Q: Were you able to collect 60% of the revenue in 2002?
A: No.
Q: What about in 2003?
A: Since I came in we have exceeded our normal collection since October 2003
by 20 or 15%.
End of evidence-in-chief of Momodou Kaba Tambajang, Acting Director General
of Customs and Exercise. The case was adjourned till 13th January 2004.
Sectoral Review Of President Jammeh’s Interview
Asked about the prospect of operation no compromise, the president
emphasized that he will pursue it up to the day before elections without any
respite, inadequacy or break.
He claimed that before he started the campaign the dollar was rising in
value by the day; that it has now been stabilized at D30. He indicated that
his government has enough resources to push the foreign exchange rate of the
dollar to D15 per dollar. He insinuated that those who hoard dollars are
likely to suffer the consequences.
Apparently, operation no compromise means many things to the president. Let
us focus on the prices of goods and the exchange rate of the dalasi, which
was his focus in the interview.
The Mystification Of Economics
Since the coup period the head of state has been guilty of mystifying the
economic realities of the country. In terms of projects he has always
claimed that the monies were coming from Allah’s world bank. Now "Allah’s
world bank" which constitutes loans have risen to 20 billion dalasis and is
consuming D1.5 billion of the 2.2 billion dalasis budget. It is making it
more difficult for government to meet the day-to-day needs of the various
departments of state.
In the same vein the president has attributed the rise in prices to
unscrupulous vampires aiming to increase the suffering of the people by
increasing prices. The depreciation of the exchange rate of the dalasi in
relation to other currencies is attributed by him to hoarding of the foreign
currency.
As far as the president is concerned the fundamentals of the economy are
correct. It is the saboteurs who are making things difficult for the people.
It is important to focus the mind of the president on the fundamentals again
so that he can see the root cause of the problem of inflation and
depreciation of the exchange rate of the dalasi.
First and foremost, the president claims that they have the resources to be
able to reduce the exchange rate of the dalasi to D15 per dollar. This is
fairy tale. They do not have such resources. The type of resources that can
encourage government intervention to regulate the currency market is to have
enough foreign exchange to pump in the currency market whenever there is
shortage of currency so that the supply will meet demand. It is when demand
exceeds supply that those who need the foreign exchange more and have the
means, pay more for it.
Suffice it to say, The Gambia earns foreign exchange from exports, tourism
and repatriation of earnings by Gambians abroad. It is clear that many
Gambians are resorting to Western Union money transfer. Hence the foreign
currency remains in the private banking system whose foreign assets have
been increasing.
This is confirmed by the SoS for finance in his speech. It reads:
"The expansion in the net assets of the banking system was entirely on
account of the commercial banks whose net external position at D1022.8
million at the end of September 2003 increased by D880.91 million compared
to end of 2002. The growth in deposit money banks not foreign assets was
attributed to a robust build up in balances held with banks abroad."
The lesson is clear, the commercial banks are building up their savings in
foreign currency abroad as safeguards against the depreciation of the dalasi
and to enhance their profits from interest rates offered by banks abroad
rather than from borrowers at home. This is one fundamental fact that the
president may not have alerted his mind to.
Secondly, foreign exchange comes from exports. The secretary of state has
indicated that exports for the year 2003 are estimated as 93.7 million
dalasis while imports are estimated as D4.0 billion dalasis, leaving the
country with a trade deficit of 3.9 billion dalasis. This confirms that
there is more foreign exchange flight due to imports than gains from
exports.
In fact, the re-export trade is what helps the country a lot in enabling the
importers to earn foreign exchange to continue their importation of goods.
Such foreign exchange remains in the hands of the re-exporters or the
commercial banks who are likely to make deposits abroad to acquire
interests.
A third sector where foreign exchange is derived is tourism. However, the
out of pocket expenditure of tourists confirms that the tourist industry has
very little linkage with the local productive sectors. Consequently, there
are leakages of foreign exchange.
It goes without saying that international grants are also reducing thus
limiting foreign exchange earnings from external aid.
How then can the government aid get enough foreign exchange to be able to
put enough foreign exchange in the market to satisfy demand to the point of
putting pressure on the foreign exchange market to resort to an exchange
rate of D15 per dollar.
In fact, the twin objectives of maintaining the external competitiveness of
the dalasi and to build adequate resources have not been achieved.
The secretary of state for finance has made it clear in his budget speech
that "between end December and September 2003 the dalasi depreciated on
normal terms by 43 percent, 50 percent and 55 percent against the US dollar,
pound sterling and Euro respectively in the inter-bank market."
Suffice it to say, he also added that "the net foreign assets of the Central
Bank dropped markedly during the year under review. This was due, in the
main, to the paucity of inflows of foreign exchange in the face of mounting
external debt payments. Foreign assets or gross official reserves fell by
42.2 percent from 1530.04 million to 883.67 million, slightly over three
months of import cover, at the end of September 2003."
It is therefore absolutely clear that there is in fact increased demand for
foreign exchange by government to pay interest and the principal of debts
amounting to D1.5 billion this year.
In short, the government, the banks, those in the parallel foreign exchange
markets, and those engaged in import-export are all scrambling for scarce
foreign exchange. How then can the dalasi appreciate to D15 per dollar? The
president should stop speaking the language of magicians and speak the
language of economists if he wants his words to restore confidence in the
courage of his government to accept the truth when it is seen by all.
In the same vein, prices of imported commodities cannot be reduced as long
as the world market prices remain the same and the exchange rate of the
dalasi continues to depreciate or even remain stagnant. This is all the more
so if customs dues and port charges increase.
In fact, the secretary of state for finance has confirmed in his budget
speech that even the sectors controlled by government are not immune to
inflationary pressures.
According to him "since the financial year 2000, NAWEC’s liquidity problem
has been worsened by the depreciation of the dalasi and the Iraqi war has
also affected the global price of petroleum products. In fact, the price of
a barrel of crude oil went up to $42." According to the SoS, "In order to
mitigate these losses, NAWEC was compelled to adjust its rates. Although
tariffs were increased by 70% and 40% for electricity and water respectively
in 2003, the anticipated benefits were eroded by oil price increases and the
depreciation of the dalasi." He therefore concluded that "The outlook for
2004 would require further tariff adjustments."
If the president cannot control the price of electricity and water supply
which is under his jurisdiction, what other promise can he make of price
controls that he can keep and why has he been accusing vampires for the
price increases? In fact, the SoS ended by announcing that "government has
decided the adjustment of the pump price of pms by D3." This increases the
pump price of petrol to D22 per litre with immediate effect, which had
effect on the movement of people and goods and cost of services and
commodities.
Let us take the opportunity to inform the president that as we go to press
we have been reliably informed that the price of a bag of flour has
increased from D540 to D650. In 1999 the price per bag was D150. Can the
president reduce the price to D150 today? It is very likely therefore that
there will either be an increase in the price of bread or a reduction of its
weight.
"Operation no compromise" is therefore not having any effect in making the
cost of living cheaper and quality of living better. In the areas of prices
and foreign exchange access the operation is meaningless. The president
therefore needs to move away from militarism to economics and explore a new
partnership initiative to address the elements of the economy
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