Friday, December 8

Court Declares Borra’s Detention Unlawful, Cautioned IGP Against Arbitrary Detention Of Citizens 

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Justice Ebrima Jaiteh of the Gambia High Court

By Landing Ceesay 

In rendering his decision, the Honorable Justice Ebrima Jaiteh of the High Court of the Gambia, presiding over a legal case involving the Inspector General of Police (IGP) and the Attorney General, ruled that the detention of Alagie Sisawo, commonly known as Alhagie Bora, was both unlawful and unconstitutional.

Alhagie Bora, a co-host of the “Badinyaa Kacha” segment on Kerr Fatou, had been held by the police for a period of seven days without formal charges being brought against him.

Through an amended originating summons filed on October 16, 2023, in Banjul, Alhagie Bora, represented by his Counsel Kaddijatou Jallow, sought several orders. These included a declaration that his detention from October 4, 2023, without being presented before any court of law was in violation of the law and the constitution, constituting a breach of his fundamental rights as outlined in the 1997 Constitution.

Additionally, Alhagie Bora requested an order to restrain the IGP from arbitrarily arresting and detaining him without just cause, a directive for the IGP to immediately surrender his mobile iPhone 13 Pro Max, and an order for the IGP to pay him the sum of D7,000,000.00 (Seven Million Dalasis) as damages for the deliberate infringement of his fundamental rights through prolonged detention beyond constitutional limits. The application also left room for any other orders deemed appropriate by the court.

The amended originating summons was supported by a 49-paragraph affidavit sworn to by Alhagie Bora himself on October 16, 2023, accompanied by four pictures of him.

In response, the respondents (IGP and Attorney General) strongly opposed the application, presenting a 26-paragraph affidavit in opposition sworn to by Assistant Superintendent of Police Alagie Sanyang on October 30, 2023.

The applicant, Alhagie Bora, countered with a 19-paragraph affidavit in reply sworn to by himself. Briefs of argument were duly ordered, filed, exchanged, and adopted in the legal proceedings.

In presenting his brief of argument, Alh. Borra articulated three key issues for determination. These issues revolved around establishing whether he was under the custody of the Respondent (IGP) from October 4, 2023, to October 10, 2023; assessing the lawfulness of his detention by the Inspector General of Police; and determining his entitlement to compensation amounting to D7,000,000.00.

In response, the Inspector General of Police and the Attorney General submitted their own brief of argument, centering on two issues for determination. These issues focused on the legality of the Applicant’s (Borra) detention and the question of whether he is entitled to the requested damages of D7,000,000.00 as specified in the amended originating summons.

The subsequent judgment rendered by Hon. Justice Ebrima Jaiteh delved into the first issue, emphasizing that the matter of whether Alh. Borra was in the custody of the Respondent (IGP) from October 4, 2023, to October 10, 2023, constituted the foundation of the entire application. Hon. Justice Jaiteh referred to Alh. Borra’s affidavit, specifically paragraph 33, wherein he asserted that he remained in custody during the specified period, experiencing harsh conditions at different locations.

“The Respondents (IGP and Attorney General) in responding to paragraph 33 of the affidavit in support admitted at paragraph 16 of the affidavit in opposition of the fact, save that the Applicant (Alh. Borra) was allowed access to communicate with his family members. By the admission of the Respondents in their affidavit in opposition, I resolve the first issue in favour of the Applicant that he was in custody of the Respondents from the 4th day of October 2023 to the 10th day of October 2023,” Hon. Justice Jaiteh ruled. 

Regarding the second issue of whether the detention of Alh. Borra by the Inspector General of Police was unlawful, Hon. Justice Jaiteh emphasized that this constitutes the core of the complaint in the fundamental right application.

Hon. Justice Jaiteh highlighted the well-established principle that no individual should be subjected to unlawful arrest and detention when they have not committed any offense.

Furthermore, Hon. Justice Jaiteh pointed out that a person who has committed a criminal offense or is reasonably suspected of doing so may be arrested for the purpose of facing legal proceedings in a court of law.

Hon. Justice Jaiteh asserted that a person can be arrested either in execution of a court order or to a reasonable extent necessary to prevent them from committing a criminal offense.

In supporting these points, Hon. Justice Jaiteh referred to the entirety of Section 19 of the 1997 Constitution, emphasizing the need for a harmonious understanding of the law on arrest and detention.

Hon. Justice Jaiteh revealed that Section 19 of the 1997 Constitution states that:”(1) Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary, arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law; (2)Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she understands, of the reasons for his or her arrest or detention and of his or her right to consult.a legal practitioner.

“(3) Any person who is arrested or detained: a.. For the purpose of bringing him, or her before a court in execution of the order of a court; or b. Upon reasonable suspicion of his or her having committed of being about to commit, a criminal offence under the laws of The Gambia, and who is not released, shall be brought without undue delay before a court and in any within seventy two hours.” Hon. Justice Jaiteh said. 

Hon. Justice Jaiteh further stated that the said section in the 1997 Constitution asserted that: “(4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his or her having committed or being about to Commit an offence, he or she shall thereafter be further held in custody in connection with those proceedings or that offence save upon order of a court.

“(5) If any person arrested or detained as mentioned in subsection 3 (b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either conditionally or upon reasonable conditions including in particular, such conditions as reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial: (6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from the other or from any other person or authority on whose behalf that other person was acting,” Hon. Justice Jaiteh said.

Honorable Justice Jaiteh emphasized that based on the aforementioned constitutional provisions, any restriction on the mentioned rights would be deemed unlawful and unconstitutional, constituting a violation of the citizen’s rights under any circumstances.

Furthermore, Honorable Justice Jaiteh posed the crucial question in the current case: whether Alh. Borra has successfully demonstrated that his fundamental rights were infringed or violated by the IGP and Attorney General, or either of them.

The judge pointed out that, upon reviewing the opposing affidavit, both the IGP and Attorney General did not dispute the fact that Alh. Borra was in their custody from October 4th to October 9th, 2023. Importantly, there is a lack of evidence indicating that Alh. Borra was formally charged or brought before a court of law, a situation acknowledged by the IGP and Attorney General. Honorable Justice Jaiteh asserted that such facts, being admitted in their counter-affidavit, require no extensive evaluation according to established principles of affidavit law.

“Such facts need no further proof as the court would treat them as unchallenged evidence. See the case of Antione Banna Vs Ocean View Resort Ltd (2002-2008) 1 GLR Holding 5 where it was held that unchallenged or uncontroverted evidence is deemed admissible as establishing the facts contained therein. The Respondents (IGP and Attorney General) herein in such, admitted evidence now has the responsibility to show that the arrest of the Applicant (Alh. Borra) for the period he is arrested can be justified.  

“The Respondents are not only to show that it can be justified but must actually justify the arrest and detention for the period. In order words the arrest and detention must conform to the law. In this respect, the Constitution of The Gambia 1997 dealing with Fundamental Human Right becomes the main focus.This is because any law that is contrary to the constitution will be declared null and void to the extent of the conflict, contradiction and inconsistency,” Hon. Justice Jaiteh said. 

Honorable Justice Jaiteh emphasized that Section 19 of the 1997 Constitution of The Gambia is pertinent to the matter at hand, asserting that it underscores the inherent rights of every individual that warrant safeguarding.

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Justice Jaiteh pointed out that the constitutional provision unequivocally prohibits any arbitrary arrest or detention of individuals within The Gambia.

Furthermore, Justice Jaiteh highlighted statements from both the Inspector General of Police (IGP) and the Attorney General, as presented in their opposing affidavit paragraphs 7 and 8. They contended that Alh. Borra’s arrest was linked to statements he made, advocating for the illegitimate takeover of governments in Africa through the use of arms during a period of heightened instability on the continent. The IGP and Attorney General argued that such remarks posed a threat to the peace and security of the country. Justice Jaiteh added that the police, based on these concerns, invited Alh. Borra to the Kairaba Police Station, where a panel conducted an investigation into the content of his statements with the aim of determining the presence of any criminal elements.

“I must state that the Respondents (IGP and Attorney General) failed to provide this Court with a copy of the report of the investigation panel and also failed to provide this Court with the content of the remarks allegedly made by the Applicant (Alh. Borra) that purportedly threatens the peace and security of the country. In the absence of these facts, the averments cannot stand.

“The Applicant in his affidavit in reply denied paragraphs 7 and 8 of the affidavit in opposition and averrèd that the Applicant never ever encouraged the illegitimate takeover of governments in Africa by use of arms. The Applicant in further denying paragraph 8 averred that his talk show was focus on the events at the time happening in West Africa and nothing in respect to The Gambia to incite anyone or individual,” Hon. Justice Jaiteh said. 

Honorable Justice Jaiteh emphasized the need to question why Alh. Borra was not charged if there was any indication of criminality in his statement. Additionally, he raised concerns about the findings of the investigation panel that led to the prolonged detention beyond the stipulated 72-hour period.

Furthermore, Justice Jaiteh asserted that in this particular case, both the Inspector General of Police and the Attorney General lacked a justifiable reason for the extended arrest and detention of Alh. Borra beyond the 72-hour timeframe.

Justice Jaiteh highlighted that the law provides provisions for the police or law enforcement agents to arrest and detain individuals accused of committing offenses. However, he emphasized the importance of conducting a thorough investigation and bringing the accused to court within 72 hours if evidence supports their involvement in the alleged crime.

Justice Jaiteh concluded by stating that the power to investigate should not be exercised indiscriminately.

“It is inappropriate for the police or law enforcement agents to arrest person and while in their detention, they now fish around for evidence to prosecute him or her, The laziest and ready way the police or law enforcement agents get evidence to prosecute a person in most cases is by confessional statement.

“Our law enforcement agents should think of more genuine ways of getting evidence to prosecute a person’s alleged to have committed any offence. After investigation, the law enforcement agent would invite the suspect and take him to court within 72 hours and not to take reverse order which is so popular today, ” Hon. Justice Jaiteh stated.  

In the present matter, Honorable Justice Jaiteh noted that Alhaji Borra, having reported for bail at the Kairaba Police station on October 4, 2023, around 9 a.m., had his bail, which was initially granted on August 15, 2023, revoked. Subsequently, he remained in custody until either the 9th or 10th of October 2023.

Honorable Justice Jaiteh emphasized that given the absence of any pending investigation, Alhaji Borra should have been promptly charged and brought to court upon the immediate revocation of his bail. The continuation of his detention beyond that point was deemed a violation of his rights.

“I therefore reach the conclusion that the Applicant’s (Alh. Borra) detention was unlawful by the 1st Respondent (IGP) and this I shall hold as fact,” Hon. Justice Jaiteh stated. 

Regarding the third matter concerning whether Alh. Borra is eligible for a compensation of D7,000,000.00, Hon. Justice Jaiteh emphasized that this issue merits consideration within the framework of a fundamental human rights application.

Hon. Justice Jaiteh pointed out that Section 19 (6) of the 1997 Constitution of The Gambia stipulates that: “Any individual who is unlawfully arrested or detained by another person is entitled to compensation from that other person or from any other person or authority on whose behalf the detainment occurred.”

He underscored that according to this constitutional provision, it is imperative that any person who is unlawfully arrested or detained has the right to receive compensation.

“Since this Court has resolved the second issue above that the Applicant was unlawfully detained, he is entitled by the provision of the Constitution to be compensated,” Hon. Justice Jaiteh stated. 

Hon. Justice Jaiteh said Chapter Four of the 1997 Constitution deals with the Protection of Fundamental Rights and Freedoms and no person, institution or personality has the right to violate the right of another and get away with it.

He said under the Constitution of The Gambia, every person’s liberty and dignity is guaranteed. 

Justice Jaiteh of the High Court emphasized that in the event of a violation, the aggrieved party has the right to seek damages in accordance with section 19 (6) of The Gambia’s Constitution. The judge cited the established legal principle that even a brief unlawful arrest and detention entitle the applicant to compensation.

“The Respondents (IGP and Attorney General) admitted that the Applicant’s (Alh. Borra) bail was revoked on the 4th of October 2023 and he remained in custody up to the 9th October 2023. The Applicant (Alh. Borra) in his affidavit in support averred that whilst in custody, he was asked to remove his shirt and trousers and was provoked and harassed by one Inspector Bah and the said Inspector Bah was touching and playing with his private part whilst he was locked in a small room at the Anti-crime headquarters in Banjulnding. 

“He (Alh. Borra) was later taken to an unknown location and thrown in a dark police cell and was not allowed to communicate with anybody as his phone was seized but was only allowed to access to his phone on his third day in detention being on the 6th of October 2023 to call his family to bring food for him and his phone was thereafter immediately taken away from him. The Applicant averred that he was pushed into a pool of dirty water and he exhibited photos of mud over his shirt and body,” Hon. Justice Jaiteh said. 

Justice Jaiteh ruled that the allegations made by Alh. Borra demonstrate that his right to dignity and liberty were violated by the Inspector General of Police. He further noted that it is established law that infringement of the fundamental right to liberty, when proven, automatically entitles the victim to compensation, even if it is not explicitly requested by Alh. Borra.

“The Applicant is claiming D7, 000,000.00 from the Respondents as quantum of damages, however, having factored the economic condition of the country and taking into account, including the need to send clear message to law enforcement agencies and their cohorts to keep within the statutory powers, and further taking into account the circumstances of the case, I am incline to award in the Applicant’s favour compensation against the Inspector General of Police.

“From the foregoing reasons and as stated in the case of Wang Wei v. The Inspector General of Police [Misc. App.No.HCI730123/CR/144/Co] and I shall reiterate herein again that no person should be arrested and detained beyond the constitutional limit without any charge. The police are duty bound and under an obligation to protect fundamental rights of every person in The Gambia. No person rights should be violated with impunity and it is totally unacceptable in a democratic society like The Gambia,” Hon. Justice Jaiteh said. 

Hon. Justice Jaiteh warned that the Inspector General of Police and his cohort cannot and should not arrest and detain people at his whims and caprices indiscriminately.  

He said it is totally wrong for the Inspector General of Police or his officers to arrogate power that they do not have under the law.

Hon. Justice Jaiteh said it must not be forgotten that the “New Gambia” that prides itself with democratic tenets, liberty, integrity and dignity cannot be acting unlawfully.

“It is our duty as guardians and custodians of justice to rise when occasions call for it and allows the goddess of justice to rule our heads and actions. In that case, the authority of the law Would be preserved and law would be used as instrument of abiding justice. In a country such as ours, where there is so much hatred and animosity, the court and the Inspector General of Police ought to be cautious in detaining persons in custody beyond the constitutional limit of 72 hours without any substantial evidence in support of an allegation of crime against the person under their detention,” he said. 

Hon. Justice Jaiteh further stated that in order to preseve the country’s heritage for freedom, that a person not charged should not be detained for the purposed of making him or her suffer indignity as that is not the purpose and intent of the law. 

“In view of all the foregoing, and considering the reason of the Applicant’s detention is unlawful, Judgment is hereby entered in favour of the Applicant as follows: It is hereby declared that the detention of the Applicant from the 4” day of October 2023 to the 10 of October 2023 without being charged and arraigned before any court of law was unlawful and unconstitutional and amounts to a breach of his Fundamental Rights as enshrined in the 1997 Constitution of The Gambia.

“The Inspector General of Police is hereby restrain from arbitrarily arresting and detaining the Applicant for no just cause; That the Inspector General is hereby ordered to handover the Applicant’s (Alh. Borra) iPhone 13 Pro Max with immediate effect; Cost of D500, 000.00 is awarded as compensation to the Applicant against the Inspector General of Police in particular,” Hon. Justice Jaiteh delivered his judgement.