DUGA’s Defiance Merits Applause

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1381520_1375342822703640_289647520_nBy James Jammeh

I feel compelled to write in support of DUGA DC in relation to the Freedom radio interview in which the three DUGA activists narrated their court case. Sohna Sallah very eloquently explained the outcome of the criminal case in which they were involved. Pa Samba Jow and Ousainou Mbenga further elaborated on the planning and execution. I felt frustrated by Mr Mbai’s style of questioning which seemed to me to miss the crucial point. It is for this reason that I want to make a contribution as a bystander.The three accused persons were arrested last week and arraigned before a judge this week. As all three rightly pointed out, they were not acquitted because no pleas as to guilt were ever entered. It is my impression that Mr Mbai’s analysis of the case is that the three defendants and the prosecuting authority came to a settlement. This was not the case. Firstly, this was not a civil litigation matter and therefore, the conclusion to the proceedings could not be regarded as a settlement. As far as I know, settlements are only reached in civil matters where the claimant and defendant agree on a quantum of damages for the claimant, the aggrieved party. Secondly, the parties in the current proceedings under discussion reached an agreement (as mentioned by the activists themselves during the radio show) as opposed to a plea bargain. Plea bargaining essentially means that the prosecution and the defence reach a compromise in which the defendant for example, enters a guilty plea or plead guilty to a lesser charge in return for a lesser sentence. The important distinction in this case is that the parties in the proceedings reached an agreement without the need for the defendants to enter a plea. In absence of a plea, there could not have been a plea bargain. The trio did not at any one point imply that they intended to plead guilty. From the interview, I got the impression that they were determined and ready to defend the case vigorously.

The host’s line of questioning seemed to me, to hint at or give the impression that the three accused persons entered into a plea bargaining with the prosecution in lieu of a trial. My interpretation of Mr Mbai’s understanding of the agreement is that the three defendants entered into a plea bargain with the prosecution in order to evade an actual trial. In addition, he also seemed to allude that the “Jammeh regime propaganda machine” may frame this “plea bargaining” (his words) in ways that suited their distorted political rhetoric, that the activists withered under the weight and pressure of the litigation process or that they “plea bargained” in order to avoid the threat of custodial sentences at the end of the trial. This analysis pre-supposes and suggests that the trio had accepted guilt and therefore had an interest in evading trial by jumping at a chance of a plea bargain. While there is some merit in suggesting that the Jammeh regime may resort to such propaganda tactics and spin the outcome of the case in their favour, Mr Mbai seemed to be looking at the case from a narrowly constructed lens. This analysis is completely wrong and misses an intellectual as well as a rigorous political scrutiny of the embassy matter and the court case that emanated from it.

The actions of the three activists were bold, brave and strategically intelligent. Their single act of entering the Gambian embassy offices and refusing to leave after numerous warnings and in the face of imminent arrest and detention speak volumes about their character. They could simply have walked away after the security personnel arrived at the scene. The three activists’ defiance and refusal to walk away after the intervention of the secret service is particularly poignant and heroic and is a testament to their intellectual, political and moral convictions about our country. Since 9/11 which changed the calculus of America’s global war on terror, particularly on American soil, culminated in the passing of sweeping and draconian anti-terror legislations. The activists made it clear that what they did last week was neither impulsive nor amateur. It was properly planned and executed. They had even sought prior legal advice. I am sure the group was minded to whether their actions may fall within the outer margins of anti-terror laws, both at state and federal levels. I am sure they recognised the risks involved and yet, they proceeded. Under international law, national governments have an explicit and implicit obligation to ensure that embassies situated within their jurisdiction are given enhanced legal protection to safeguard their safety and integrity.

It is for this reason that even though Julian Assange is resident in the Ecuadoran embassy in London, the British Police, under normative practices, have grudgingly accepted the spirit of the law and have been powerless to go in and seize Assange. The Metropolitan police have maintained a-round-the-clock vigil outside the Ecuadoran embassy to pounce on Mr Assange should he ever venture outside the embassy grounds. In essence, this contextualises the legal protection embassies enjoy under international and national laws.

Therefore, I am sure that the activists would have contemplated that their actions may fall foul of America’s almighty anti-terror laws. Yet, they courageously refused the warnings of the secret service. Their actions were hugely strategic and calculated because invading an embassy was likely to generate some level of publicity. An “invasion” of an embassy by a group of protesters, albeit peaceful, was highly likely to make it into the corridors of the State Department. Little by little, such actions are likely to nudge the State Department to begin to seriously look into the serious human rights abuses in Gambia. This is the gist of what Sohna Sallah, Pa Samba Jow and Ousainou Mbenga did and it ought to be applauded in that light. To assume that they plea bargained to save themselves from the rigours of litigation is misleading and insulting and undermines the currency of what they achieved.

From what the activists explained, the prosecutor was poorly prepared. This highlights two points. First, while this is not uncommon, I suspect that in this case, the prosecution did not take the matter all too seriously. The trio’s actions were guided by political conviction to highlight the heinous human rights abuses going on in a land far away from where the alleged offence took place. I am sure that the prosecuting authority in this case was at pains to take the matter to court, however, they could not afford to do nothing. I am sure they saw the alleged offence in this particular case as flimsy and unmeritorious. That to me explains why the prosecutor was ill prepared for the case when the matter went before the judge. It also shows why the judge took a swift, serious and a more hands on interventionist approach in the matter.

It is worth pointing out that a judge has the final say in a criminal trial. Even if the prosecution and defence reach an agreement that the judge feels is unacceptable in the interests of justice, he has a right to decline the agreement and instead order a trial. In this case, both the prosecution and judge would have looked at the charges, the evidence adduced if there were any and all the other relevant considerations before coming to the sound conclusion reached. The judge in this case, I am sure, saw no substantial merit in proceeding with the case. As one former Law Lord of the UK’s erstwhile House of Lords once said, even judges are influenced by their conscience when deciding on cases. In this case, even if we concede that what the trio did was theoretically an offence and this is a moot point considering that the American constitution guarantees the right to peaceful assembly and protest, crucially however, their motive was borne out of genuine political cause rather than malicious intent and it appears this rationale was plainly recognised by the judge. The judge rightly saw that continuing with the case would only achieve one thing, drain the public purse. That would have been unwise especially at a time when the American public spending was the subject of extreme political dispute at Capitol Hill. Looking at it from a judicial prism, proceeding to trial would have been an abuse of the court process. It was therefore, necessary to protect the integrity of the criminal justice system. In this case, because of the trivial nature of the offence and its corresponding charge, the agreement was reached without the defendants entering a plea, without the need for the prosecution to call its case or the defence making a submission of no case to answer.

Attaching conditions to the agreement is routine practice. Such conditions are the basis for the agreement. In this case, the lenient nature of the condition(s) only serves to legitimise the assumption that the judge saw this case as nothing but a waste of the court’s valuable time and resources. The length of time barring the trio from entering the embassy offices for a period of six months is tellingly minimal. If the alleged offence was deemed serious by the judge, it would have attracted harsher and stiffer conditions, i.e a far more lengthy period. The fact that the trio are only prohibited from going inside the embassy building reveals the less than punitive nature of this condition. The flexible terms of the condition also means that the trio can to go out tomorrow and protest outside the embassy without committing any breaches. Other DUGA members who are not subject to the current court order are not prohibited from doing exactly what their colleagues did last week. In any way you look at this case, the trio in particular and DUGA DC in general, are the real winners and have emerged with their heads held high up. They persevered and are still standing tall. I cannot see how the dictatorial regime of Jammeh can spin or score any political points from this matter. However, even if the regime foolishly try to do so, they can only baffle those who allow the regime to hoodwink them, the majority of us are intelligent enough to know the truth.

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