By Landing Ceesay
Mr. Ebrima Dibba, Deputy National Organizing Secretary of the opposition United Democratic Party (UDP), has pleaded not guilty to the sedition charge leveled against him by the Inspector General of Police (IGP) after the court ordered the amendment of the charge sheet.
On Wednesday, June 5, 2024, The Inspector General of Police (IGP) charged Mr. Dibba with Seditious Intention under section 51(1)(a), punishable by section 52(1)(b) & (c) of the Criminal Code Volume One, Laws of The Gambia 2009.
The IGP alleged that in May 2024, Dibba recorded and published a WhatsApp audio accusing the President of being “greedy, immature, rude, and foolish,” aiming to incite contempt against the President or the Government.
Lead Lawyer for Dibba, Counsel Borry S. Touray, announced their intention to challenge the charge before a plea was entered. Touray argued that the charge under section 51(1) is merely a definition and not an actual offense, which is outlined in section 52. He requested the court to strike out the charge, as it did not empower the court to impose any criminal sanction.
In response, Commissioner Sanneh, representing the IGP, argued that the charge was proper, referencing both sections 51 and 52 to support their case. He requested the court dismiss Counsel Touray’s application and proceed with Dibba’s plea.
On Thursday, June 6, 2024, Principal Magistrate Muhammed Krubally of the Banjul Magistrate’s Court delivered his ruling on the oral application made by Ebrima Dibba’s legal team.
In his ruling, Principal Magistrate Krubally upheld Counsel Borry S. Touray’s argument that Ebrima Dibba was charged under the wrong section.
“Now to decide whether Section 51 Subsection 1(a) is the correct section prosecution so preferred against the Accused as the correct one thereby went further to state punishable under Section 52? Or Whether it is Section 52 as invoked by the Learned Senior Counsel BS Touray as the correct one? I find it pertinent to ask myself this question, and that is- what is the purpose of a criminal charge when preferred against a person? The answer is to inform him or her of the offence, wrong, incorrect action or words done thereby violating the existing laws of the land.
“Going by this answer, it is indeed fundamental for any authority vested with the powers to press a charge against anyone to be very cautious and conscious of the said offences when to be preferred against anyone because at the end of the day, the person against whom the said offences are to be preferred will be judged by the legal authorities for such and by extension the public in which case those impatient may characterize him in a negative light,” Principal Magistrate Krubally said.
Principal Magistrate Krubally emphasized the importance of basing charges on the appropriate laws when prosecuting individuals who have allegedly committed offenses.
He referenced the case of Abdoulie Conteh versus the State 2002/08 Gambia Law Report volume 1, where Justice Agim specified the correct section to be used when pressing charges.
Krubally explained that this issue arose when the Accused was charged under Section 252 of the Criminal Code. An objection was made, arguing that Section 252 was not the correct offense-creating section and that Section 245 should have been used instead, as it is the definition section applicable to the charges.
Principal Magistrate Krubally stated that His Lordship held thus; “It is trite law that the correct section for charging a person with an offence is the offence creating section. This is statutorily provided for in Section 113 (1)(a) of the Criminal Procedure Code. I am therefore in no doubt that Count 2 is valid and sustained.”
“In the light of the foregoing, I come to the flow of conclusion that Section 51 Subsection 1 (a) of the Criminal Code couched by the prosecution to charge the Accused (Ebrima Dibba) herein is a definition section absolutely wrong in charging the Accused under this circumstance. I entirely agreed with the Learned Senior Counsel BS Touray for the Accused that the correct section to be invoked in charging the accused is Section 52 as the offence-creating section.
“I seize this opportunity to commend the Learned Counsel for his proper guidance to the invocation of the position of the law in this context. Since I take note of the prosecution’s effort yet to reference Section 52 as a punishable section to the definition section to charge the accused, will not warrant me to strike out this matter for want of complete incompetence. Instead, I hereby order the prosecution to amend the same and thereafter the Accused takes his plea. Meanwhile, bail is accordingly extended for the Accused,” Principal Magistrate Krubally ruled.
Following the ruling, Superintendent Almamy S. Manga informed the court that, based on the decision, the Prosecution would apply under section 169 of the Criminal Procedure Code to amend the statement of offence from section 51 subsection 1(a) to section 52 subsection 1(b) and (c) of the Criminal Procedure Code.
Superintendent A.S. Manga then requested the court to approve their application. Ebrima Dibba’s lawyers did not object, and Principal Magistrate Krubally granted the application.
“Sequel to the oral application of the prosecution pursuant to section 169 1 of the criminal code to amend section 51 1(a) of the criminal code inter alia to which the accused has been charged to amended with Section 51 1(b), and (c) not objected to by the defence counsel, prosecution’s application to amend same is accordingly granted pursuant to section 169 of the criminal procedure code. Accordingly, the accused can now take his plea. Either the accused or his counsel can inform the court the position or plea of the accused as per the charge before the court,” Principal Magistrate Krubally ruled.
Counsel Abdul Aziz Bensouda, one of the lawyers representing Ebrima Dibba, informed the court that they would be entering a plea of not guilty.
Following this announcement, Principal Magistrate Krubally highlighted Ebrima Dibba’s constitutional right to the presumption of innocence until proven guilty. Consequently, he entered a plea of not guilty on Dibba’s behalf and reminded the prosecution of their burden to prove the accused’s guilt.
However, the prosecution expressed dissatisfaction with Counsel Bensouda entering the plea on behalf of his client. Superintendent A.S. Manga urged the court to have Dibba personally enter his plea.
“Your Worship even though counsel representing the accused when the charge sheet has been amended his counsel told the court that the amended charge sheet is deemed read and further informed the court that the accused pleads not guilty to the charge in the view of the prosecution is not enough. We still think the accused should be allowed to take his plea himself, having read the same to him all over,” Superintendent A.S. Manga told the court.
In response, Principal Magistrate Krubally ruled that Counsel Bensouda acts as the representative of Ebrima Dibba, and it is permissible for him to enter a plea on Dibba’s behalf.
“Prosecution, with all due respect, counsel AA Bensouda when asked the position or plea to the amended charge informed the court that we take the amended statement of offence as read and further informed the court the accused pleads not guilty to the charge.
“In view of the court, since it is only the statement of the offence only is the one amended and the particulars remain the same, does not affect the procedure herein in any way. The accused represented by counsel as his mouthpiece is sufficient,” Principal Magistrate Krubally ruled.
Principal Magistrate Krubally then adjourned the case to on the 2nd of July 2024 for hearing.