By Landing Ceesay
In presenting his “no case to answer” submission before Principal Magistrate Muhammed Krubally of the Banjul Magistrates Court, Counsel Borry S. Touray, representing Ebrima Dibba, argued that the Inspector General of Police has failed to establish a prima facie case against his client.
Ebrima Dibba, an Executive Member of the United Democratic Party (UDP), is currently facing a single count of sedition under Section 52, Subsections 1(b) and of the Criminal Procedure Code.
The Inspector General of Police (IGP) alleges that in May 2024, Ebrima Dibba recorded and shared a WhatsApp audio accusing President Adama Barrow of being “greedy, immature, rude, and foolish,” with the intent to generate contempt against the President or the Government.
At the close of the Prosecution’s case, Counsel B.S. Touray informed the court that his client, Ebrima Dibba, would file a “no case to answer” application.
In his submission, Counsel B.S. Touray contended that the Prosecution had failed to establish a prima facie case against Ebrima Dibba.
“May I submit straight away that the prosecution has failed to make a prima facie case to warrant the accused to enter his defence in this trial. This application is premised on Lord Parker’s practice direction on a submission of no case report in 1964 all England Law Report volume 2 at page 604. I shall have a two prompt approach to this application and the first of that approach will be on the fiat of the Attorney General the point of departure and the question of fiat calls in to focus Section 53 Sub 2 of the Criminal Code.
“I submit straight away that the prosecution has failed to compile this provision of the code. The law requires the statutes of the Attorney General, document filed herein is headed ‘Consent To Prosecute’ was issued by the Solicitor General and Legal Secretary, Hussein Thomasi. From this I submit that the document or fiat is not in compliance with Section 53 sub 2 of the Criminal Code. Section 53 sub 2 makes reference to only the office of the Attorney General,” Counsel B.S. Touray argued.
Counsel Touray further submitted that there is no part of that provision (Section 53 sub 2 of the CC) which makes the Attorney General to delegate this function. He also argued that it is the rule of construction that an expressed mention of one of the species excludes all others.
Counsel B. S. Touray cited that this is a decision Of the court of appeal In the locus classicus case of Lansana and 11 Others Versus The Regina, Reported in African Law Report Sierra Leone Series 1977 volume one and the judgement was delivered by Tambaya Judge from Srilanka.
“The genesis Of this case was that the late attorney general of Sierra Leone Batama Colley Was himself charged with eleven others and they were convicted by the Supreme Court. They appealed to the West African Court of Appeal and the said conviction was set aside by the said court on many grounds. One amongst them was the insufficiency of the fiat filed and I must also add that the fiat was tendered as exhibit,” Counsel Touray submitted.
Counsel Touray further submitted that at page 229 Of the judgement paragraph 40, the position of the law was cleared by the West African Court of Appeal.
“Their lordships made copious decisions herein and in the case of Warm, and I submit that the way consent was obtained in this case is improper and ought to be disregarded by the court. It falls short of section 53 sub 2 of the Criminal Code and that I submit that the Accused (Ebrima Dibba) be acquitted and discharged by the court,” Counsel Touray submitted again. In his second line of argument, Counsel B.S. Touray asserted that the prosecution’s evidence fails to connect Ebrima Dibba to the alleged offense. Counsel Touray argued that the testimony from the two prosecution witnesses, particularly PW1, did not provide any link between Ebrima Dibba and the creation or distribution of the alleged audio.
“No evidence has been placed by the prosecution to this court to the effect that this audio which came into the Whatsapp platforms was generated from the telephone number of the Accused Person (Ebrima Dibba). No evidence was placed before this court from the cellular company confirming that the subscriber of that number is the Accused Person. No evidence is given to this court on the identity of the voice in question to this audio,” Counsel Touray argued.
Counsel Touray also emphasized that PW1 testified he had never interacted with Ebrima Dibba and did not know him, and further confirmed he had no training in voice identification.
As a result, Counsel Touray argues that, due to the lack of identification of the audio’s source, the prosecution has failed to establish a necessary connection between Ebrima Dibba and the audio in question.
“I equally urge His Worship not to accord any weight to the audio for the following obvious reasons that; the Transcriber has told this court that she does not understand Mandinka Language and she gave evidence that she did the transcription and said it was processed by one Mr. Huma. But the prosecution was short in that Mr. Huma’s ability in understanding Mandinka and so no evidence was placed before the court on the competence of Mr. Huma in doing this transcription. I urge His Worship to take notice that court interpreters in this jurisdiction are not trained in all the various Languages. Some will tell you I cannot interpret Mandinka, Jola, Fulla etc. I submit that this cannot be treated with Levitt.
I therefore urge His Worship not to attach any weight to the transcription and not only on lack of the competence of the personnel on the transcription and also failure of the transcriber on the failure to attach a certificate on it. And also on the additional failure on the transcriber not to have Notarised the said document by the Notary Public. For this reasons, I submit that is only the bare audio presented to this court in Mandinka and the Language of this court officially is English. In this premise, I urge His Worship to acquit and discharge the Accused Person (Ebrima Dibba),” Counsel Touray submitted.
In response to Counsel Touray’s submissions, Commissioner Sanneh, representing the Inspector General of Police (IGP), asserted that a prima facie case has been established against Ebrima Dibba.
Commissioner Sanneh informed the court that the prosecution will be invoking Section 167 of the Criminal Procedure Code, which asserts that Ebrima Dibba has a case to answer, given that a prima facie case has already been established.
Regarding the fiat dated June 3, 2024, and signed by the Solicitor General and Legal Secretary, titled “Consent to Prosecute,” Commissioner Sanneh argued that this document complies with the Criminal Code by providing the necessary consent to the defense.
“Counsel for the Accused (Ebrima Dibba) contradicted himself by saying Office of the Attorney General Chambers. This includes the Attorney General, his subordinates including the Solicitor General and others. For example if you say; The Office of the Inspector General, includes all his subordinates. So the submission made by Defence Counsel is baseless and misconstrued and does not comply with Section 53 sub 2 of the Criminal Code. We urge the court to disregard, dismiss, and allow the accused (Ebrima Dibba) to enter his defence,” Commissioner Sanneh argued.
Regarding the second issue, where the Prosecution Witnesses did not connect Ebrima Dibba to the audio in question, Commissioner Sanneh contended that Ebrima Dibba had admitted to one of the Prosecution Witnesses that he was the creator of the audio.
“Counsel said Prosecution called two witnesses. We submit that we presented three witnesses, tendered flass drive, containing audio, presented certificate in support of the flash drive, and tendered a transcription of that audio in conformity with section 22 sub 2 of the Evidence Act. In these three witnesses, prosecution is relying in all of their evidence more so PW2, which is the Investigating Police Officer. Who in his testimony without ambiguity made it clear to this court that he had an interface with the accused (Ebrima Dibba) and the accused confessed that he made that audio,” Commissioner Sanneh told the court.
Commissioner Sanneh explained that Counsel B.S. Touray chose not to reference PW2 and instead relied on the testimony of PW1. Additionally, Commissioner Sanneh noted that it is up to the court to decide whether the content of the audio constitutes an offense.
“We as prosecution submits that the wordings of the accused in the audio is an offence contrary to Section 52 of the criminal code. The court is referred to the transcription by Haddy Jagne (PW3). The Accused (Ebrima Dibba) said the President is clueless, ignorant and knows nothing. With these wordings we submit that the accused has committed an offence which warrants him to enter a defence,” Commissioner Sanneh argued.
Commissioner Sanneh stated that although PW3 did not personally interact with Ebrima Dibba, the flash drive was sent to her office for transcription.
He noted that despite PW3’s admission of limited fluency in Mandinka, an interpreter was present to translate the audio for her.
Commissioner Sanneh argued that, similar to a Magistrate who relies on interpreters to understand local languages in court, the transcription provided by PW3 should be considered binding.
“In the light of the same, we urge this court to allow and order the accused to enter his defence. Last but not least, the evidence of PW2 established the element of this offence, which requires the Accused to explain the genesis of the audio as required in the case Doney v the Queen 1990 171 Commonwealth law report at page 207. We therefore urge the court to disregard the submission of no case by counsel for the defence and allow him to give defence,” Commissioner Sanneh submitted.
In his response to Commissioner Sanneh regarding the legal points raised, Counsel B.S. Touray requested that the court place particular emphasis on Section 53(2) of the Criminal Code when considering the “No Case to Answer” application.
Counsel Touray also cited Section 69 of the Criminal Code concerning the initiation of criminal proceedings.
Subsequently, Principal Magistrate Muhammed Krubally adjourned the case until October 25, 2024, to deliver a ruling on the application.
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