20th June 2016
and Minister of Justice
SUBJECT: YOUR ADVICE ON HOW TO AVERT MISCARRIAGE OF JUSTICE IN CONNECTION WITH CASES ASSOCIATED WITH EBRIMA SOLO SANDENG
According to Section 72 of the Constitution you are the principal legal adviser to the government and have right to audience in all courts in the Gambia.
The Constitution, the Criminal Code and the Criminal Procedure Code have given you constitutional and statutory powers aimed at preventing miscarriage of justice.
This is why certain charges could not be subjected to hearing before the court unless they receive the fiat of the Attorney General. In the same vein, you have a right to file nolle prosequi to discontinue criminal proceedings and discharge and release accused persons.
Section 85 subsection (1) of the Constitution also adds that “The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney-General –
(a) to initiate and undertake criminal proceedings against any person before any court for an offence against the law of The Gambia;
(b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority:
(c) to discontinue at any stage before Judgment is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority”
The only exception is in relation to matters subjected to public prosecutions.
Madam, with a conscience pricked by the wailing of family members, Ousainou Darboe told the journalists that he had every reason to believe that Solo Sandeng is dead under custody. He and elderly members of his executive took to the street in a peaceful march to demand to put their eyes on Ebrima Solo Sandeng, dead or alive.
Two months have elapsed since the arrest of Ebrima Solo Sandeng. He is the principal protagonist in respect to the incidents of 14th April and 16th April.
He is yet to appear in any court proceedings.
The procrastination or hesitation in revealing the truth regarding Sandeng’s whereabouts has unsettling effect on the scale of justice, threatening to tip the balance towards miscarriage.
Every court proceeding is shrouded by the mystery of Sandeng’s unexplained absence.
The mystery was further nurtured to full blown impunity by total silence regarding his whereabouts while conducting diligent prosecution of the UDP executive members who believed that he is dead and buried under suspicious circumstances.
Justice has its technical and substantive components.
Substantive justice must be done and be seen to be done.
If Sandeng were to be brought to court then the belief of the UDP leadership that he is dead would have been proven to be mistaken and the moral weight behind their action would have been lighter.
On the other hand if Sandeng is indeed dead and buried then the state would stand accused.
In short, no one who dies under custody should be buried without a coroner’s inquest to determine cause of death.
Section 6 subsection (1) of the Coroners Act states: “When a person dies while in the custody of the police or of a prison officer or in prison or when detained in any place under the provisions of the Lunatics’ (mentally ill)Detention Act, or of the Criminal Procedure Code, the police officer or prison officer or other person having the custody or charge of the deceased person at the time of his death shall immediately give notice of the death to the nearest Coroner and, except as otherwise provided by section 11, such Coroner shall hold an inquiry into the cause of such death in the manner hereinafter provided.”
A writ of habeas corpus has been filed for the state to bring him to court. It will be heard on 27th June.
If the state is to reveal that he is dead then it would amount to mockery of justice to have failed to take his body to the mortuary and cause a coroner’s inquest to be conducted.
If this is how matters stand miscarriage of justice would be minimised by ensuring that Ousainou Darboe and the UDP executive and members do not stay one more day in prison.
You are therefore being requested to find out the facts before the court sits on 27th June. If the death and burial of Sandeng is admitted you should advise that a coroner be appointed to hold a coroner’s inquest to determine the cause of death. If the body is buried it should be exhumed under the dictate of Section 4 subsection (3) of the Coroners Act.
The state should be advised to ease frustrations by rolling back impunity and discharge and release all those linked to the incidents associated with Sandeng.
The nation should mourn the death and national consultation should begin to avert reoccurrence. Religious and civic leaders should also play their part in addressing the current challenges.
A people whose hearts do not beat in unison with the heartbeat of fellow citizens facing challenges of justice, no matter who, at any given moment will always remain an insensitive, irresponsive and divided, weak and uncaring people.
We should all become concerned and without any desire to play to the gallery, speak and act according to the dictates of conscience and the national interest. This is the way to ensure that we have a state which serves as an instrument of protection instead of an instrument of coercion.
Yours in the Service of the Nation