LIVE FREE OR DIE!!! I concur Caesar.
Haruna.
-----Original Message-----
From: Ousman Ceesay <[log in to unmask]>
To: GAMBIA-L <[log in to unmask]>
Sent: Mon, Sep 17, 2012 12:06 am
Subject: Re: [G_L] 100 percent unlawful: the killings that angered the world and stained a nation
Mr. Darbo,
Thank you for taking the time to straighten out what has been gnawing at some of us since the murder of the prisoners. The cackamane legal arguments they kept putting forward is always suspect. Damn I am pissed off. Excuse my language.
The question going forward is how do we redress this blatant injustice? What avenues can we avail ourselves in the international arena if any, bearing in mind the grip the 'professor' has on the judicial system in the Gambia.
Live free or die
From: Lamin Darbo <[log in to unmask]>;
To: <[log in to unmask]>;
Subject: [G_L] 100 percent unlawful: the killings that angered the world and stained a nation
Sent: Mon, Sep 17, 2012 3:26:06 AM
100percent unlawful: the killings that angered the world and stained a nation
Ina confounding display of reckless and secretive statecraft, even some who stillconsider themselves officially connected and in the know swore on their lives thatprisoner killings did not happen in The Gambia notwithstanding BBC and other reportsquoting credible Amnesty International, and Civil Society Associations Gambia (CSAG)sources. No surprise these fellow citizens live in The Gambia! Under circumstancesless contentious and disgraceful, and with consequences so far reaching for ourpublic life, a performance of this nature would be hailed a masterclass ininformation management.
Ifas contended by those who were left to deal with the fallout – the Cabinet andparliamentary employees of His Excellency Sheikh Professor Alhaji Doctor YahyaA J J Jammeh (the Professor) - the prisoner killings were on all fours with theconstitutional framework, the critical retort is why such secrecy in a matterof such national moment.
Assumingthe constitutional framework was complied with, who owned the bodies of theexecuted prisoners? Were the families notified in any way about the impendingkillings? Were the prisoners killed on Thursday, 23 August, as claimed byAmnesty, and CSAG sources, or on Sunday, 26 August, as reported by theProfessor’s government? Were the prisoners killed by hanging, firing squad,lethal injection, or by methods less comprehensible to the lay person inmatters of terminal and violent state conduct? Where was the location of theallegedly constitutionally sanctioned killings? What was the actual number ofprisoners killed? What was the rationale behind killing nine people on the samenight, perhaps at, or about the same time? Why were there no verifiable public reportsof observers independent of government witnessing the killings?
Overtime, others would no doubt elucidate and educate Gambians and friends of TheGambia on some, perhaps all of the above questions on this ratherincomprehensible development in our public life. For present purposes, myconcern is limited to the simple inquiry of whether there is a legally implementabledeath penalty law in The Gambia. In other words, were the killings constitutionallypermitted as claimed by the Professor and his Cabinet, by some APRC NationalAssembly members, and by the hordes of party supporters, and so-called councils’of elders from around the country.
Inmy view, there is currently no constitutionally implementable death penalty lawin The Gambia, and regardless the actual date of killings, the Professor’sgovernment gravely erred in relying on section 18 of the 1997 Constitution ofthe Republic of The Gambia (the Constitution) as justification for killing purporteddeath row prisoners. I cannot overemphasise the illegality of the prisonerkillings. Let us examine the pertinent law!
The legal frameworkaround the death penalty
Section 18, 1997Constitution of The Gambia Protectionof right to life
(1) No person shall be deprived of his or her lifeintentionally except in the execution of a sentence of death imposed by a courtof competent jurisdiction in respect of a criminal offence for which thepenalty is death under the laws of The Gambia as they have effect in accordancewith subsection (2) and of which he or she has been lawfully convicted
(2) As from the coming into force of the Constitution,no court in The Gambia shall be competent to impose a sentence of death for anyoffence unless the sentence is prescribed by law and the offence involves violence,or the administration of any toxic substance, resulting in the death of anotherperson
(3) The National Assembly shall within ten years from the date of the coming into force ofthis Constitution review the desirability or otherwise of the total abolitionof the death penalty in The Gambia.
Section 226, 1997Constitution of The Gambia Alteration of the Constitution
(2) Subjectto subsection (4), a Bill for an Act of the National Assembly under thissection shall not be passed by the National Assembly or presented to thePresident for assent unless-
(a) Beforethe first reading of the Bill in the National Assembly, the Bill ispublished in at least two issues of the Gazette, the latest publicationbeing not less than three months after the first, and the Bill isintroduced into the National Assembly not earlier than ten days afterthe latest publication, and
(4) A Bill for an Act of the National Assemblyaltering any of the provisions referred to in subsection (7) shall not bepassed by the National Assembly or presented to the President for assent unless-
(a) the Bill is published and introduced in the manner required byparagraph (a) of subsection (2),
(b) The Bill is supported on the second andthird readings by the votes of not less than three quarters of all the membersof the National Assembly,
(c) the Billhas been referred by the Speaker to the Independent Electoral Commissionand the Commission has within sixmonths of such reference, held a referendum on the Bill and
(d) at least fifty percent of the personsentitled to vote in the referendum have taken part in the referendum and theBill is supported in the referendum by at least seventy five percent of thosewho voted
(7) Subsection (4) applies to-
(a) this section
(b-d)
(e) Chapter IV (which provides for theprotection of fundamental rights and freedoms)
(f-l)
DEATH PENALTYRESTORATION ACT Cap 11:02, Laws of The Gambia, 2009
[DecreeNo. 52 of 1995]
[Date of commencement:10th August, 1995]
1. Short title
This Act may becited as the Death Penalty (Restoration) Act
2. Restoration of death penalty provisions in Caps.10:01, 11:01 and 19:01
The sectionscontained in-
(a) theCriminal Code
(b) theCriminal Procedure Code, and
(c) TheGambia Armed Forces Act,
Prior to theenactment of the Death Penalty (Abolition) Act 1993, which were amended by thatAct are hereby restored in their respective enactments and shall be construedaccordingly as if that Act had never been passed
Provided that a person shall not be sentenced to death on a charge of murder ortreasonable offence committed between the period of enactment of that Act andthe coming into force of this Act.
3. Repeal
The DeathPenalty (Abolition) Act 1993, is hereby repealed.
Analysisof law and facts
From the onset, thereis absolute clarity on the fact that section 18, as part of Chapter IV of theConstitution, is an entrenched provision. The fundamental point to note istherefore that in light of the constitutional architecture on entrenchment, theNational Assembly has no unilateral capacity to “review the desirability or otherwise of the total abolition of thedeath penalty in The Gambia”. In simple terms, section 18(3) of theConstitution mandates the National Assembly to initiate a referendum process on“the desirability or otherwise of thetotal abolition of the death penalty in The Gambia”. The NationalAssembly can only validly act in collaboration with the electorate. And thereferendum, a “yes” or “no” vote on the simple question of whether The Gambiashould maintain the death penalty must take place by 16 January 2007 atthe very latest.
Albeit partially, Iconcede there is an argument The Gambia had a valid death penalty law from 10August 1995 when the AFPRC reinstated it, up to, and including 16 January 2007.That validity, sanctioned by a higher law and encapsulated in 18(1), and 18(2)of the Constitution, lapsed on 16 January 2007. On 17 January 2007, an automatic moratorium on conviction, sentence,and implementation of the death penalty kicked in by virtue of section 18(3) ofthe Constitution.
In other words, section18 (1) and (2) ceased to have effect and were placed in abeyance by the expressoverriding qualifier of 18(3) in so far as the constitutional command of a referendumon the death penalty did not take place. All death sentences not implemented as of 16 January 2007 wereconstitutionally stayed. And all death sentences imposed since 17 January 2007were legally invalid. All of the 23-26August 2012 prisoner killings were therefore unlawful! The supremacy clauseat Section 4 of the Constitution overrides the Death Penalty Restoration Act1995 (see Cap 11:02, Laws of The Gambia,2009)
Considering theconstitutional timelines around a mandatory review of the death penalty law inThe Gambia, even 16 January 2007 as an absolute deadline must be construed as somewhatof a charitable interpretation of the law. The outer deadline of ten years assumesthe referendum process was in motion in accordance with the stipulatedtimelines in section 226 (2)(a) of the Constitution regarding publication of apertinent Bill in at least two issuesof the Gazette, the latest publication being not less than three monthsafter the first, and the Bill is introduced into the National Assembly notearlier than ten days after the latest publication. This alone is aclear 100 days before the mandatory“review” deadline of 16 January 2007!
On commencement of the Bill’sjourney through the National Assembly, it may take a good two to three monthsthrough the third reading and voting on the matter in the legislative chamber.After this constitutionally mandated journey in the National Assembly, theSpeaker must refer the Bill to theIndependent Electoral Commission which must, within six months of such reference, organise a referendum on the Bill. As thewording on timelines permit some discretion on when certain things happen,e.g., “within six months”, it is reasonable to assume that from the firstreading of the death penalty retention or abolition Bill in the NationalAssembly through the holding of a referendum by the IEC, a solid six to ninemonths could, at the very least, lapsed.
What this means is thata referendum process must have commenced in January 2006 to avoid legaluncertainty over the death penalty issue. Although the commencement of areferendum process in January 2006 would not have invalidated sections 18(1)and (2), it would have suspended the implementation of the death penaltypending the verdicts of the National Assembly and the electorate. Since themandatory referendum process was not even attempted, a strict application ofsection 18(3) suggests the death penalty was in abeyance as early as January2006.
What implications thenfor individual prisoners killed by the Professor’s government?
Tabara Samba, sentencedto death on 26 September 2007, was neither validly convicted nor sentenced inlight of the fact that sections 18(1) and (2) lapsed by virtue of thereferendum requirement on the death penalty as stipulated in subsection (3).The same applies to: Dawda Bojang, 30 July 2010; Buba Yarboe, 03 November 2010;and Malang Sonko, 30 January 2012. None of these four people were validlyconvicted, or sentenced to death. Killing them was unlawful. The Constitutiongave no permission!
As for Ex LieutenantLamin Jarjou, Ex Sergeant alias Ex Lieutenant Alieu Bah, and Ex Sergeant LaminF Jammeh, they were all validly sentenced to death on 27 October 1998. DittoGebe Bah, sentenced to death on 30 January 2004 (I make no pronouncement on theactual trials). For these four, the unlawfulness in killing them is rooted inthe fact that Gambia’s overriding death penalty law lapsed on 16 January 2007.In accordance with the supreme law of the land, they were, at worst, entitledto legitimate expectations of life in prison. The Constitution prohibited theirkillings!
Standing by itself isthe case of Lamin B S Darboe. He was sentenced to death during the FirstRepublic, on 03 December 1986. According to the Press Release entitled“Warrant/order for Execution” issued 27 August 2012, by the Ministry of theInterior, Mr Darboe “appealed against conviction and sentence on 18thday of June 1988 and the said appeal was dismissed”. There is a palpableperversity about the above quoted material from the Ministry of the Interior. Itis frightening that our government had the audacity to issue such a cavalierand misleading statement on the utterly unlawful killing of Mr Darboe.
Even granting that hisappeal was dismissed “on 18th day of June 1988”, the legal landscapeunderwent a complete alteration when the PPP government abolished the deathpenalty in 1993. Even before the Professor’s government entered the politicalscene, Mr Darboe was no longer a death row prisoner. By virtue of TheDeath Penalty (Abolition) Act 1993, his sentence was commuted to life behind bars, a terminology in needof clarification.
.
With all his power, theProfessor has no authority to retrospectively reinstate Mr Darboe’s deathsentence. Indeed, the Death Penalty (Restoration) Act 1995 expressly prohibitedany such move. In clear language, it says: Provided that a person shall not be sentenced to death on a charge of murder ortreasonable offence committed between the period of enactment of that Act andthe coming into force of this Act. I leave it to others to ferret out thereasons behind Mr Darboe’s unlawful killing. No question he was unlawfullykilled!
As myriad delegationsfrom around the country trooped into the Vice President’s office to profess andrenew loyalty to the Professor, exculpate him from allegations of unlawfullykilling prisoners, and blaming the Constitution instead, I am reminded of themassive difficulties embedded in our one-man political system. It is an utterfarce for uninformed so-called councils’ of elders to pontificate onconstitutional clauses of great moment, And especially as some of these highpriests and priestesses on the unquestionable legality of the killings areunlettered in the language of the Constitution. I urge Gambians to reject ageas an exclusive barometer for deciphering judgement and credibility. If thismomentous issue of legality eluded government lawyers – assuming priorconsultation – it is hard to see how the unlettered can decipher the esotericlegal architecture of Gambia’s death penalty laws.
As the governmentanchored its justification for the prisoner killings in constitutionalpermission, some form of national debate around that alleged legalauthorisation must be entertained. To talk about democracy and eschew publicconversation on momentous questions of life and death cannot garner credibilityfrom the informed and conscientious.
If only for this,interposing sovereignty cannot in anyway be dispositive of the question oflegality. Ditto the contention that other nations also have, and do implement,death sentences. And no amount of mere assertion that the Constitutionpermitted the August 23-26 killings can legitimise the illegitimate.Sovereignty and company are merely political arguments. I now challenge theProfessor and his government to publish its legal advice in light of theformidable and absolute clarity of section 18(3) of the Constitution, a sectionthat operates in a manner akin to a statute of limitations
.
An elemental reading of18(3) ought to have triggered some consultation with the government’s legaladvisers. The killings were more complicated than the sovereignty sideshow, andthe issues inherent in this farcical transaction are infinitely moresignificant than the shameful contention our republic is a proud member of acrowded field of state executioners and must therefore not be singled out forwidespread global condemnation.
Those who contend thatthe killings were legal are wrong.
I challenge them totell us how a nation rights a wrong of such magnitude? How does it remove suchstain on its conscience?
Lamin J Darbo
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