Gainako Newspaper

Why is due process necessary? Why, some might ask, should we
observe so carefully and deliberately, the requirements of due process,
even in cases that seem so cut and dried? Why does Magistrate Njie
worry about the rights of defendants, the supposed bad guys?

Here's why: To maintain trust and confidence in the judicial system while
simultaneously forestalling abuse of power, injustice and victimization.
It sets a uniform standard by which every accused person - rich or poor,
Christian or Muslim, president or Alkalo, Badibunka, Foninka or what
have you - is treated. Due process is the best guarantor of equal
protection of all citizens under the law.

Following the dictates of due process ensures the rule of law - as opposed to rule by the barrel of the
gun. Or the rule of money. Or the rule of the Ceesay's, the Camara's, or the Touray's (you can
substitute surnames with the ones that you own cultural norm allows you to pick on with impunity, but
excuse my digression).

Even innocent citizens do get charged with crimes. It's a human-based system and, as with any human
endeavor, it's error prone. One way to minimize the error that may lead to a citizen being stripped of
liberty, limb or even life (were capital punishment is applicable) is the application of due process
standards.

Any fair legal system aims to avoid the gross injustice of punishing the innocent. That is indeed the
definition of injustice. Due process puts in place the mechanism, the checks and balances to ensure the
gross injustice of punishing the innocent is avoided.

In many respects, it would seem as though even Almighty God, our Creator, is in favor of due process
in its application of the presumption of innocence, for instance; or, its espousal of the defendants' rights
and the caution and restraint it fosters in order to prevent the premature prescription of punishment.
There's evidence -- in both Biblical and Shari a law - to this effect.

The Book of Genesis (18: 23-33) describes God's dealing with the transgressing inhabitants of a
certain notorious city. Despite His wrath over their wrongdoings, He hesitates to bring down
punishment on the innocent, saying: "If I find in Sodom fifty righteous within the city, then I will spare
all the place for their sakes..." From this, some scholars posit, "It is better and more satisfactory to
acquit a thousand guilty persons than to put a single innocent one to death."

Islamic Shari a law, as well, assumes innocence until proven guilty in many fronts. For instance,
adultery requires four (4) separate, coincidental, non-conspiring eyewitnesses to the actual offense for
a conviction to stand. That standard, one could argue, is even higher than that of secular law's highest
standard, which is "beyond a reasonable doubt".

In similar manner as we examined the question of why due process is necessary, let us examine why
God's law - Biblical or Shari a - grants so much "benefit of the doubt" to the defendant. Why
innocence is presumed.

It's clear, The Almighty knows the guilty and their wrongdoing for He is "the All-knowing, the
All-wise". Why then, one might wonder, does He require, as Shari' a teaches us, four separate,
non-conspiring witnesses for an adultery conviction? He already knows, does He not, who committed
what offense?

The answer is simple: God knows us humans too well. Having created us, he is all too aware of human
nature -- our penchant for abuse and victimization, especially of the powerless, the poor and those at
the lower rungs of social strata. He knows our propensity to mistreat one another based on our own
character fallibilities such as greed, jealousy, lust, gluttony, sloth, wrath and envy -- which are often
referred to as the Seven Deadly Sins.

The strict requirements of God's law, therefore, are meant for protection against our own excesses
towards one another. Much as due process, they are instituted to serve as safeguards against false
accusation and unjust punishment that may stem from any number of motivation or mere ill-intent.

Having created us, God knows we can easily get drunk on power and position so as to get tyrannical
with it. That's just human nature! Give us power and we'll run wild with it.

There's actual proof for this: some doctors for instance, get what is commonly referred to as "God
complex" -- the notion that healing power equates somehow to being "god". In other words, a doctor,
having been empowered with the knowledge to save life or cause death, may tend to feel as though
they are "god" thereby misusing their knowledge of medicine.

Another example of our abuse of power is best illustrated by the "Devine Rights of Kings" the notion
that rulers are representatives of God, and therefore have the right to act like God over their subjects.
Rulers - kings, presidents and governors have become dictators because of excessive political,
economic & military power. Genocide and mass murder has often been the result of such
swollen-headedness.

This simple fact about human tendency to abuse power and position was perhaps best summed up by
the famous Lord Acton quote: Power tends to corrupt; absolutely power tends to corrupt absolutely.

Hence, God in effect doesn't trust -- with good reason, too -- one person or entity with the power to
be judge, jury and executioner. Human history is fraught with instances of abuse of power and
authority when and where power is concentrated on one person or institution rather than decentralized
so that one becomes a check on the excesses of another.

The beauty of due process is that it prevents all of this from happening; it is a deliberative process that
ensures that only the law, rather than individuals, reigns supreme.

Championing due process therefore, as the noble Magistrate of Brikama did, is championing what's
fair, right and just.

If all of the aforementioned does not convince you as to the wisdom of establishing and respecting due
process, you might want to reflect on the following simple question: Would you want the same
treatment that due process calls for -- such as the presumption of innocence, adequate legal
representation, and a speedy trial -- if you were (God forbid!) accused of a crime?

While Magistrate Njie's courageous and principled stand for the constitution, due process and the rule
of law, even in the wake of enormous challenges, may not win him friends in the hallways of power; it
deserves commendation by all freedom-loving and justice-yearning citizens who fall within the
jurisdiction of The Gambia, and even beyond.

.....................................................NEWSN
.....JAMMEH GIVES ULTIMATUM TO
.....SUPREME ISLAMIC COUNCIL;
.....Is It Lawful?: By Solo, Banjul Correspondent.....July 31st, 2008
The Gambian president Yahya Jammeh on - gave an ultimatum
to the Supreme Islamic Council to do what he called, Put their
house in order within a week, ie. To regulate what he called the
differences in Islam in the country.

The president's ultimatum came in the heels of Imam Fatty's attack
against the shia Muslims whom he accused of insulting prophet
Muhammed during his sermons at the state house mosque.

The Gambian leader gave his ultimatum last Thursday 24th July-
during the official inauguration ceremony of the new supreme
Islamic council training institute for imams and scholars.

The president who was not as explicit as the state house imam in mentioning the Shia denomination but
only made a description of people who he said uses various forms of material inducements to
propagate their faith as hypocrites.

"You Supreme Islamic Council know what your duties are in the country. If you see certain
things that are happening here that led to violence, it was because you are not given the power.
But now I gave you the power and authority and the mandate to regulate those things and yet
still nonsense things are happening, you have seen them and yet you cannot do anything about
it." He told them.

The president told the religious leaders that when the Ahmaddiyya arrived in the country to create
problems, he drove them out of the country. He said nobody can come to the Gambia and practice a
religion that is different from the one we are practicing here, He opined.

He also said when the whites wanted to bring any nonsense into the country, they pass through one
so-called Islamic scholar who he said had studied electrical engineering in Libya, someone who he
said did not even expect to be an imam but as he complained, the SIC is seeing all these but are
keeping quiet about it.

President Jammeh said Islam does not know any leniency or mercy. " if you know you don't want to
regulate the religious differences and stand for your purpose, this country does not refuse
strangers, but those who want to bring other religions here which are different from the one we
have, take them back to their country" he ordered. "I have told you this several times", he
reiterated.

The Gambian strongman or oga as he is now called by some Gambians because of his display of
wealth, threatened to dissolve the SIC if they fail to do what he told them; that he would dissolve them
and call a congress for a new council to be created that he said would not take bribes, talk for money
and work for money.

He then went on to warn that if this Islamic differences are not resolved he would deploy the (PIU)
forces to go and pack any of them found within the premises to work on his farm at Kanilai.

The new complex which is a multi- million Dalasi centre is funded by the Ministry of Endowment and
Islamic Affairs of Kuwait.

.......SUPREME ISLAMIC COUNCIL
.........ISSUES PRESS RELEASE
The petrified supreme Islamic Council on Wednesday issued a press release and called on Mosques,
schools, religious leaders not to preach Shia beliefs or propagate Shia traditions and culture etc.

What however is baffling to many people is the fact that the SIC does not have any legal authority to
stop any one from propagating or practicing one's religion in the Gambia. What is clear as noon-day is
the fact that the Constitution guarantees everyone the right to practice one's faith without hindrance.

Many say the president's threat to the SIC to dissolve them if they do carry out his illegal order is not
only an abuse of office but also unethical forcing the SIC to make an announcement which is as well
unconstitutional.

QUANTUM ASSOCIATES
...............TO BE AUCTIONED ON FRIDAY
The computer giant, the Quantum Associates is closing down, this media can reveal on Friday 1st
August 2008. This came about as a result of a court judgment in favor of the Guarantee Trust Bank
Ltd, which the company owed large sums of money and did not pay on time. The Quantum
Associates will be auctioned and the proceeds utilized to settle the debts owed to the said bank.

JULAKAY CHARGE FOR STEALING
14 MILLION DALASI BELONGING TO
JULAKAY CONSTRUCTION; Who Is He A Front For?
The businessman cum politician Ansumana Marenah who is also a ruling
APRC heavy weight and who is widely seen as the proprietor of Julakay
Construction and Engineering Company had his problems quadrupled after
his arrest on the 14th July 2008 when he was recently charged in a Magistrate
Court in Banjul on Monday 28th July for stealing a large sum of over 14
Million Dalasi from the accounts of the very company he is said to have
owned.

Mr. Marenah is also charged for stealing a vehicle L 200 Mitsubishi worth
over D600, 000 Dalasi as well as a Motorbike.

The confident looking businessman however pleaded not guilty to all the charges. His lawyer Borry
Touray also scored a first goal against the prosecution when his representative battled in court to
secure bail for him against the wishes of the state counsel, ASP Yaya Touray. Julakay (trader) as he
is fondly called by the people was allowed a bail bond of D500, 000 Dalasi and two Gambian sureties
who each has a developed landed property and must be an employee.

The interesting thing about this case is that Julakay is accused for stealing money belonging to Julakay
Construction And Engineering Company which is said to belong to himself. The question that
everyone is waiting to be answered in the court is whether the accused is the sole proprietor of the
company or is he just a front as murmured in town.And if he is a front, for whom is he a front for?

..............................................OPINION
...Championing Due Process
...............................................................................( PART I )
................................By Sheriff, NC ��.July 30th, 2008
Not since the days of Baba Galleh as editor (if not Kenneth Y. Best
as owner) has a Daily Observer article so utterly arrested my attention
like this dispatch from Brikama a couple of weeks ago. Here's the
lead to the story:

Magistrate Ayoub John Njie of the Brikama Magistrates Court has
told police prosecutors that any accused person detained for more
than 72 hours and arraigned before him will be acquitted.

The article went on to describe how the magistrate who presided over an alleged theft case chided
the state for detaining the defendant beyond the legally allowable 72-hour period without being
brought to court or granted bail. The magistrate went further to state that he would dismiss charges
against illegally detained defendants in the future, if the state continued to violate their basic due
process rights.

OK, granted, it's not the sexiest story of the lot. But, just pause for a minute and think about the
significance of such a stand: Here's a magistrate actually standing up for the constitution, for due
process and for the rule of law. Does this mark a new dawn in the Gambian judicial system? The jury
is still out on that. What's clear is that, it certainly is a bold, courageous and notable development -- a
case, undoubtedly, of speaking truth to power.

Before I hear someone yell into my ear, "Duh, that's what they are supposed to do; that's their job," I'll
hasten to explain. Yes, it is the job of judicial officials to champion the constitution and ensure that
justice prevailed. It is no secret, however, the less-than-conducive environment in which the Gambian
judicial system and its personnel operates.

With full cognizance of these work hazards -- including political interference, judge and magistrate
dismissals, a beleaguered legal profession, poor training and general lack of knowledge of some legal
practitioners such as police prosecutors, to name a few -- it's hard not to marvel at Magistrate Njie's
valiant stand. It is refreshing to see someone championing the constitution where many cower in fear
or buckle under pressure.

The principles which spurred Magistrate Njie's position - i.e. due process and the rule of law -- are
imperative to fairness in any credible and just legal system and, by extension, any democratic
dispensation.

Due process and the rule of law require that any and all accused person(s) get to have their day in
court with a fair hearing. Fairness and justice calls for a speedy trial, representation by an attorney or
qualified legal professional and zealous defense against all charges. Ample opportunity is provided to
all sides to present, examine, challenge and refute evidence. Furthermore, to pass a guilty verdict, all
charges must be proven beyond any reasonable doubt or with a preponderance of the evidence,
whichever standard applies under that particular legal system.

What's more, due process safeguards against the use of questionable or faulty evidence. Forced
confession, evidence obtained under duress or tainted evidence of any kind is not allowable. Most
importantly, under due process punishment that assumes guilt, such as extended detention without trial,
is prohibited strictly.

Following the dictates of due process ensures equal protection for all under the law. For instance, it is
inherently contradictory for the state to defy the constitution (which bans more than 72-hour detention
without charges), while using the same body of laws to charge a suspect. That's a double standard on
the part of the state. Not only is it hypocritical; it puts certain people (the state and its agents such as
police prosecutors) above the law, which is unacceptable under a fair and just system.

Put in another way, the same body of laws (i.e. the constitution) that prohibit theft also prohibits
detention without trial for over 72 hours. Why then should the theft suspect face the consequences
while state agents that unlawfully detained the suspect are allowed to go scot-free? What happened to
equality before the law? This is exactly what makes Magistrate Njie's outrage well founded and
exemplary.

Standing up for due process does not mean one is soft on crime, or that one is in league with the
supposed bad guys. It means we care deeply about fairness and justice; that one would not
countenance the wrongful punishment of the innocent, which by definition constitutes gross injustice.

In a due-process based system, every citizen is presumed innocent until proven guilty, and the state
has to proof all charges beyond a reasonable doubt, before any punishment can be meted out.

With the burden of proof laid on the shoulders of the state, and the standard set so high (beyond any
reasonable doubt, in many cases) one is left to wonder if the system favored the accused.

Yes, the system does seem actually favor the accused in a fair and democratic system. This is so
because it is a people-based system and everyone, every person in that jurisdiction, is assumed
innocent until proven guilty by a court of law ' not by a court of public opinion, or Bantaba court, or
Attaya Vous court or Kangaroo court, where evidence maybe scarce, inaccurate, incomplete,
questionable or tainted in some form or fashion. In effect, the state respects its constituents; it's citizens
so much that it accords them the benefit of he doubt until guilt is determined in a court of law.

There is a simple reason for the presumption of innocence: If the state is to put one of its citizens in
jeopardy of life, limb, or liberty, it has to do so for a good reason. The offence for which the
defendant is to suffer punishment has to be established in a court of law, after the accused has had a
fair chance to defend themselves and clear their name.

If, after (and only after!) this process of finding fact and determining guilt in open court, the accused is
found to be guilty, to have wronged the whole of society by breaking its laws, it follows that the full
weight of the law will then be laid on the offender without fear of injustice being perpetrated by the
state.

Unless and until due process has been observed fully, guilt or innocence cannot be determined fairly.
Without guilt being determined fairly, punishment cannot be justly prescribed. Therefore, detaining
alleged offenders beyond the allowable 72 hours seems like punishment for an alleged offense that has
not yet been adjudicated. It makes light of the rigors of due process. To seasoned legal jurists like
Magistrate Njie, that's an aberration, an injustice.

..............................................POEM
..........SOCCER MOM
................................ By Aisha Saidy .....................July 30th, 2008
At the sound of the alarm
You roll and toss in bed
Hitting the shower
All five senses awake

Down the kitchen
Breakfast fix
Along the drive way
The kids are yelling
Off to school you drop them

In the midst of traffic
You dive your way through
Hitting the road
Hustling and bustling

At five pm
A rush to bargain store
Grocery all over arms
With a big smile
You mask the stress

Along with the diploma
You bag the Masters and PHDs
Like the real soccer game
You level the playing field
Stripping in bed
Scoring the best goals
Satisfying him to the fullest

Wow! Soccer mom
The new name
For the 21st century
Phenomenal woman

Aisha Saidy Boston, MA

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