Thanks LJD. My philosophy is not, however, in support of the begging mentality or the sitting on your rights syndrome. As a matter of fact; I consider such acts as unconscientious and a grave threat to the fundamental rights and freedoms of all Gambian because it makes the perpetrators think they can commission their crimes on and against anybody and get away with it. That is why when Halifa Sallah floated the idea of pleading with the man you called professor on behalf of Femi Peters when the former was imprisoned for alleged public order offences, I fiercely opposed it. That is still my position.

The issue is not about inaction or begging the professor but rather which option- domestic court or Ecowas court routes- has the potential of delivering our ultimate objective in terms of securing effective remedy for the victims of detention without trial or as Foroyaa put it; disappearance without trace.

I am aware that both the Ecowas Court and domestic court routes are fraught with difficulties as far and that  makes the issue more about which route is more prudent than the other.

I have advocated against the domestic court route on the grounds that it provides the regime an opportunity to shrug off criticism and legitimately refuse to be engaged on the matter by simply saying; ‘Well, the matter is still in court and therefore, we can’t comment’. This is always made possible because the judiciary has in the past either refused to expedite cases or unscrupulously sit on them indefinitely without an end in sight. This is the situation with the Kanyiba Kanyi case. The High Court ordered his release but the state failed to comply. They then filed an appeal against the order which the court of appeal arbitrarily refused to hear. The file was then sent to the Chief Justice’s office for re-assignment- God knows to which court now. This has effectively put Kanyiba Kanyi in limbo, and under the principle of sub judicae, the state can justify their silence on the matter by simply saying; ‘No comment as the matter is still in court’ and this is notwithstanding the High Court Order that was hitherto made in this matter and which still remains valid.

The point is; when it comes to human rights abuse, the High Judiciary is one of the tools at the disposal of the regime and some of the judges are willing collaborators.

This brings me to the Ecowas Court option. As I have stated above, that too is fraught with difficulty as there is no guarantee that any positive order issued by this court will be complied with by the regime. However, there is a potential political plus with an international dimension to be gained from this route and in my view, it is that advantage that can bear maximum shame and pressure on the regime, as it happened in the Chief Manneh case,  to see wisdom in releasing Imam leigh, Kanyiba Kanyi and all other Gambians currently under detention and also to end the culture of detention without trial or disappearance without trace in The Gambia.

It is also an opportunity for us to expose the sheer lack of confidence the Gambian people have in their own judiciary in matters of human rights concern and hopefully that too will bring shame and pressure on the unconscientious judges serving our judiciary.

The  Gambian judiciary is no doubt complicit in this problem and therefore cannot be regarded as an appropriate forum for redress.

I agree with you in principle that domestic remedies should be exhausted first before any resort to an international jurisprudence. However, given the precedents established by the cases of Chief Manneh and Musa Saidykhan, this is not necessarily a requirement to gain locus standi at the Ecowas Court and therefore not an issue.

I also recognise the theory you espoused under the law of succession but again that has no bearing on the ultimate objective of this brainstorming exercise which is; how to secure the release of the detainees.

 
Thanks

Daffeh

 

On Sunday, 24 March 2013, Lamin Darbo <[log in to unmask]> wrote:
> Excellently substantiated reasons Daffeh
> However, decisions against the State, even if unimplemented, are not merely symbolic. I still consider it quite significant to shine a searchlight on the higher judiciary, an impossible scenario if legitimate cases are either abandoned, withdrawn, or not filed at all. The begging mentality in either appealing to Professor Jammeh for mercy, or sitting on your rights for fear of offending him is what troubies in the philosophy you appear to be advocating. Like Dr Amadou Scattred Janneh, over time, it would become impossible to keep Imam Baba Leigh in detention. To his credit, Dr Janneh refused to plead with the Professor for his release notwithstanding great pressure from family and friends. He would have been released long before Rev Jessie Jackson's intervention.
> I take no issue with the evidence you presented, and I agree entirely with your assessment of the higher judiciary. In any case, once domestic remedies are 'effectively exhausted', either through final determination, or refusal to determine at all in the Gambian courts,  the ECOWAS Court route becomes a far easier process.
> A judgement validly obtained and subsisting, is a debt on The Gambia Government. Under the law of succession, any government after the APRC must still satisfy the judgments in the cases of Chief Manneh (US$100,000), and Musa Saidykhan (US$200,000). 
> If you agree with the Defence Fund principle, I count on your support whether we are in the Gambian courts, or at the ECOWAS Court.
>
>
> LJDarbo
>
>
> ________________________________
> From: UDP United Kingdom <[log in to unmask]>
> To: "[log in to unmask]" <[log in to unmask]>
> Sent: Thursday, 21 March 2013, 22:25
> Subject: Re: [>-<] Imam Baba Leigh
>
> LJD,
>
> I can see wisdom in Imam Leigh’s family's allege refusal  to take this matter to the Gambian courts for the following reasons;
>
> 1.  A Habeas corpus application before a Gambian court will only be successful if the regime allows it or is indifferent as to what would be its outcome.
> 2.  Precedents have shown us that even if such applications are successful, they do not necessarily result to the subsequent and ultimate release of the detainees. In the case of Ousman Rambo Jatta, it resulted to his disappearance without trace for a considerable period of time as the state continued to deny his where about until he was finally discovered in sleepy remote Sera Ngai. That makes the purported concerns of Imam Leigh's family very genuine and valid.
>
> 3.  We have seen in the case of Kanyiba Kanyi where the state was repeatedly ordered to produce the body but to no avail. The last twist to the fiasco was that when the state filed an appeal against the High Court Order, the Appeal Court effectively decided it was not going to deal with the case and as a result returned the file to the Office of the Chief Justice for re-assignment. They provided no reason for this arbitrary decision and it was crystal clear that none but the Appeal Court was the right court for the appeal and that the application before it was competent and appropriately filed. You will agree with me that this is nothing but a charade that is not only unthinkable but unheard of in the world that we live in.
>
> 4. There is only one Court of Appeal in The Gambia and that means if they refuse to hear your case, unless it is a constitutional matter outside the Human Rights Protection Clauses- you can take such matters directly to the Supreme Court- your case is effectively stalled and indefinitely, if not dead. That ‘s what happened to the kanyiba Kanyi case and the Office of the Chief Justice for far did  nothing that resulted to the actual restoration of this case in the appropriate court as it once was, for hearing. What that does is effectively given an opportunity to the regime to shrug-off any criticism in the matter especially their non compliance with the High Court order, by simply saying; 'the matter is in court', full stop.
>
> 5. There is still a valid judgement against the state in respect of kanyiba Kanyi and that is positive but that is as far as it goes- a mere judicial pronouncement.
>
> 6.  In another development, an Employment Tribunal sitting in Kanifing also threw away a case involving Dr.  Borro Suso, a close confident of the UDP leader, and The University of The Gambia for apparent lack of Jurisdiction but provided no basis for such a conclusion. The Claimant successfully contested the decision at the High Court but when the matter returned to the Tribunal, the same chairman decided to wash-off his hands of it. That case file is now gathering dust on the shelves with no end in sight.
>
> 7.  It is only in The Gambia that a court can effectively say; 'we don't want to hear this case or that case' and yet gives no reason for their failure or inability- not even a jurisdictional reason. That is the sad reality and it always benefits the regime because and as I alluded to above, they can always justify their refusal to comply with court orders and the law or to entertain any discussion or criticism over the matter by simply saying;  ‘well, the matter is still in court and therefore we can't comment'. Meanwhile, it is the victims and their families who do suffer more through prolong detention and emotional distress.
>
> 8. The point is; the Gambian judiciary does not have a good track record of protecting and defending the fundamental rights and freedoms of the Gambian people as enshrined in the constitution you alluded to, and the lawyers the Imam's family consulted or came into contact with must have factored this in their risk assessment- if they worth their salt- and incorporated it in their advice to the family. Obviously, it is ultimately up to the client to elect which path to take when faced with options and having been provided with all the necessary information to equip him/her to do that election and the lawyers are bound to respect that decision.
>
> 9. The likes of Justice Mam Yassin Sey have tried hard to ensure the High Court performs its role of protecting and defending fundamental rights and freedoms of all Gambians as enshrined in the constitution but without success. She ended up resigning and is now/was serving in Sierra Leone as a judge, a job he couldn't do in her own country despite her experience and qualification.
> 10. I agree with the ECOWAS Court route but the problem with that too is; there is no guarantee that a judgement delivered by this court will be complied with by the Gambian government. However,
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