By Landing Ceesay
In the ongoing corruption trial of Ministry of Health officials at the High Court of the Gambia, a significant dispute has emerged regarding the admissibility of key documents, including original copies of contract agreements and curriculum vitae (CVs) of consultants hired by the Health Promotion and Development Organization (HePDO).
Corporal Sheriff S. Corr, a member of the Gambia Police Force Fraud Squad, testified as a Prosecution Witness in December 2023, shedding light on HePDO’s hiring of consultants for the implementation of Global Fund projects. The individuals named were Muhammed Sissoho, Basiru Phillott, Abou Sallah, and Mamout Ceesay.
Corporal Corr revealed that HePDO had presented contractual agreements and CVs of the consultants, which were objected to by Counsel Lamin S. Camara, the lawyer representing the accused. The objection centred on the documents being photocopies rather than originals.
In response, the Prosecution filed a notice to produce, requesting HePDO to provide the original documents. Hon. Justice Ebrima Jaiteh then summoned Mrs. Fatou Bittaye, the Acting Executive Director of HePDO, to court to explain the whereabouts of the documents.
Mrs. Bittaye, however, informed the court that she did not possess the documents and revealed that they were sent to Karim Darboe at the Ministry of Health Project Coordination Unit. Subsequently, a subpoena was issued to Karim Darboe to appear in court with the documents.
During his appearance, Mr. Darboe conveyed that he did not have the documents, explaining that they had been forwarded to the Local Funding Agent (LFA), Sulayman Jobe, for a review of internal audit findings related to Global Fund projects.
“The documents were forwarded to the Local Funding Agent (LFA). This was around June 2021 to Sulayman Jobe. Because at the time, they were the ones who were tasked with the review of the Internal audit findings. Global Fund assigned them to do the review. They needed these documents to be able to do their review,” Mr. Darboe told the court.
Mr. Darboe elaborated that after the review, the file was not returned to him as expected, and inquiries at the LFA yielded no results. He indicated that LFA claimed the file had been collected by a driver and returned, possibly to HePDO.
“I did not write to them (LFA), I personally went there and engaged them about the file. What they told me was that a driver collected the file from them and the file was returned. If it is returned, then the file was returned to HePDO because it did not return to the Ministry of Health,” he said.
Notably, at the time the file was sent to LFA, Mr. Omar Malleh Ceesay, the second accused in the case, served as the Executive Director of HePDO. However, Mr. Ceesay denied receiving the file from LFA when questioned by Hon. Justice Jaiteh.
“I did not receive any files from LFA,” Mr. Ceesay told the court.
Continuing his testimony, Police Investigator Corporal Corr stated that copies of the mentioned documents were found in the possession of the second accused, Omar Malleh Ceesay, as part of their investigative process.
The witness was given CVs, contract documents, and study reports of consultants hired by HePDO for identification. He confirmed that these were the same documents recovered during their 2023 investigation.
“During the course of the investigation, we requested for every document related to the case, and these documents were the ones we were provided with,” Corporal Corr told the court.
The Director of Public Prosecution, AM Yusuf, sought permission to present the documents as exhibits for the prosecution. However, Counsel Lamin S. Camara raised objections, asserting that the documents were inadmissible.
“The bundle sought to be tendered comprised of CVs of consultants, contract documents of various consultants, and finally study reports by various consultants. The objection to the CVs is that these documents sought to be tendered are not listed in the list of exhibits filed by the State,” Counsel LS Camara argued.
Counsel LS Camara further argued that these documents sought to be tender by the Prosecution are not included in the bill of indictment.
“The most important thing in a criminal trial is including all the documents of the prosecution, which gives notice to the defence or accused that these documents will be relied upon. This applies to all the CVs. Secondly, my lord, these CVs are public documents within the context of the matter they are contracted to. Therefore, to render these CVs admissible, they ought to be certified according to section 115 of the Evidence Act. It is only by certification these documents can be admissible,” Counsel LS Camara argued.
Counsel LS Camara urged the court to dismiss the documents and declare them inadmissible.
Following this, Hon. Justice Jaiteh asked Counsel LS Camara to clarify how the CVs of consultants hired by HePDO could be considered public documents.
In response, Counsel LS Camara explained that the CVs become public documents when used for securing public employment.
He stated,”Your CV is not a public CV. But once your CV is submitted for a public job, with a public body to carry out consultancy, your CV is now a public document. My lord, this applies to my certificates at the Ministry of Justice, and my certificates at the registry as well. They are my private documents but kept in a public record. Someone can pay to access these documents because they are kept in a public record.”
Counsel LS Camara subsequently conveyed to the court his intention to uphold the identical argument regarding the contract documents and examination reports from the consultants.
Addressing Counsel LS Camara’s concerns, DPP Yusuf asserted to the court that there is no indication in the documents suggesting their inclusion in a public record.
He emphasized that the documents do not qualify as public records in any way.
“There is no record that suggests that the CVs are kept in a public record. HePDO is not a public body. The so-called consultants were not engaged by any public body or government agency. Therefore, the CVs cannot be said to be a public body. This is a court of records, we are not expecting speculation,” DPP Yusuf argued.
DPP Yusuf said the copies of the CVs that are sought to be tendered to the accused person have been given due notice to produce the documents.
“The copies were retrieved from the second accused (Omar Malleh Ceesay) and naturally he wouldn’t give photocopies if he didn’t have originals. He was in charge of the said organization (HePDO) at the time when these documents were submitted. Therefore, Section 101 sub 1 of the Evidence Act has two legs under which the secondary documents can be rendered admissible,” DPP Yusuf argued.
DPP Yusuf said that even though the CV is not listed in the bill of indictment, the defence has full notice and full information of the fact that those CVs are to be tendered before the court.
DPP Yusuf argued that the notice to produce duly served on the defence listed those CVs sought to be tendered.
“They (the defence) never objected to the notice to produce and the information it obtains. They should have objected at the earliest opportunity during plea-taking,” DPP Yusuf argued.
In replying to DPP Yusuf on the point of law, Counsel LS Camara said despite HePDO being a private body, they are answerable to the National Malaria Control Program which is a public institution.
“The contract documents are addressed to the Manager of the National Malaria Control Program. That makes the documents public documents because the National Malaria Control Program is a public body, and it is under the Ministry of Health,” Counsel LS Camara argued.
The case was adjourned to Monday, February 5, 2024, for continuation on Counsel LS Camara’s reply on the point of law.