Justice Zainab Jawara Alami of the High Court
By Landing Ceesay
Justice Zainab Jawara Alami of the High Court of the Gambia found Sainey Camara, a father of four children, guilty of raping a 14-year-old minor in 2018.
On the 20th of May 2019, Sainey Camara was charged with Rape contrary to Section 3 (1) (a) of the Sexual Offences Act 2013. The prosecutors alleged that Sainey sometime in the year 2018 in the Kanifing Municipality (KM) of the Republic of the Gambia, unlawfully had canal knowledge of a minor (name withheld) who was 14 years at the time, thereby committing an offence.
Sainey Camara pleaded not guilty to the charge of rape. The prosecution called seven witnesses and presented numerous documents and exhibits as evidence.
In her judgment, Justice Zainab Jawara Alami noted that Camara had confessed to having sexual intercourse with the victim in his cautionary statement to the police. However, Camara later retracted this confession, saying that he had never made it.
“It is the rule in the case of RV Golder (1894)6 ALL ER67 that, “when a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial, the jury should merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act”. This is known as the “Inconsistency Rule, “Justice Jawara Alami said.
Justice Jawara Alami said that the victim’s father testified that when he discovered his 14-year-old daughter was pregnant, he questioned her about who the father of the child was. The daughter initially refused to disclose the father’s identity, but when her father threatened to kill her, she finally named Alfusainey Camara, the accused person, as the father.
Justice Jawara Alami said that the victim’s father testified that the accused, Sainey Camara, admitted to the pregnancy in front of the victim’s father, Jankey Keita, the victim herself, and the accused’s brother. However, Camara later denied this admission.
“The testimony of the PW1 (victim’s father) earlier summarised, is corroborated by PW5, (Jankeh Keita) who testified to being present when the victim and family met the accused and his brother in their house to discuss the victim’s pregnancy. She said the accused accepted the pregnancy and promised to marry her after her delivery, “Justice Jawara Alami said.
Justice Jawara Alami stated that the testimonies of the victim’s father, Jankey Keita, and the cautionary statement of the accused person all corroborate the victim’s evidence. He concluded that the prosecution has therefore proved the element of sexual intercourse beyond a reasonable doubt.
The medical doctor who examined the victim testified that she was 26 weeks pregnant at the time of the examination.
“This honourable court is of the view that there was penetration which had resulted to the 26 weeks pregnancy confirmed by Exhibit P.E 3 (Medical Report) from Kanifing. All that Exhibit P.E 3 (Medical Report) showed was that the
Prosecutrix (the victim) herein was examined on a particular day, and it was found by that examination that the hymen was opened, and she was 26 weeks pregnant. It is therefore established that the victim had sexual intercourse with someone as she conceived and gave birth to a baby, “Justice Jawara Alami said.
Justice Jawara Alami stated that when the victim is under the age of 16, lack of consent is not required to be proven. The victim in this case was confirmed to be 15 years old at the time of the offense, as evidenced by an age determination certificate from Dr. Okafor. The presiding judge further stated that it is highly likely that the victim was only 14 years old when the rape occurred, as the age determination was carried out after her pregnancy was discovered. Justice Jawara Alami concluded that the victim was a minor and her consent to sexual intercourse was immaterial, even if she had given one.
“The law is such that ‘Capacity’ is an integral part of the definition of consent. A valid consent can be given only by a person who has the capacity to give it. The Sexual Offences Act 2013 does not define capacity: however, Common-law principles provide that a Complainant will not have had capacity to agree by choice where her understanding and knowledge were so limited that she was not in a position to decide whether or not to agree (see the case of Howard (1965) 50 Cr App R 56).
“This may arise in a variety of different circumstances; for instance, when a complainant is suffering from some forms of mental disorder, very young or is intoxicated by alcohol or drugs. These principles, therefore, apply in this case. It is trite that the burden rests on the prosecution to prove its case against the accused beyond a reasonable doubt. The burden does not shift to the accused person, and he can only be convicted on the strength of the prosecution case and not because of weaknesses in his defence. Proof beyond a reasonable doubt though does not mean proof beyond a shadow of a doubt, “she stated.
Justice Jawara Alami said the standard is satisfied once all evidence suggesting the innocence of the accused, at its best, creates a mere fanciful possibility but not any probability that the accused is innocent.
“I have found that the prosecution has met all the elements in this case and has proved its case beyond a reasonable doubt. The accused person, Alfusainey Camara is hereby convicted of the offence of rape and shall be taken into custody forthwith,” Justice Jawara Alami delivered her judgment.