Sunday, January 29

Police Should Respect Guidelines On Arrest, Detention

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By Yankuba Jallow

Agents of the Gambia Police Force continue to receive correction from the courts on how to respect the guidelines on arrest and detention of their fellow citizens.

According to Section 4 of the Police Act, the functions of the GPF is to preserve law and order and to protect people’s properties, by detecting and preventing crime; apprehend offenders and enforce laws and regulations.

Justice Aminata Saho-Cessay of the Banjul High Court in one of the cases against the Inspector General of Police, said for an arrest to be lawful, the arresting officer (police) must have had the belief of the person’s commission of an offence and must have had reasonable grounds for the person’s arrest.

Investigations to get the total number of cases against the Gambia Police Force / Inspector General of Police proved futile, because the Gambian Judiciary cannot produce a readily available information on this. And the Police cases followed by this paper during these investigations also, all went against the government of the Gambia, with the being police asked to pay the victims hefty compensations for violating their rights, in most cases. Foroyaa tried to put together the total sum of money that the police were asked to pay as damages for violating people’s rights and liberties, and again the Judicial authorities indicate that they do not have such information to provide, regarding the total sum of money involved.

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The present Government of President Adama Barrow came to power with reform agenda which seeks to put an end to rights violations by security personnel. However, the police have been found wanting for going beyond what they have been mandated to do, according to law.

Judicial decisions in the Gambia require the police to further investigate the truth of a complaint before effecting arrest, because this reason is to establish the truth before effecting arrest that is based on the allegations of a complainant only.

It is important to note however, that the Gambia Police Force has developed on arrest and detention, and this new development serves as a guide to their agents in terms of how they conduct themselves, when effecting arrest.

Police Spokesperson, Cadet Assistant: Superintendent Binta Njie said it is categorically spelt out in their police training manual how to arrest and what to do or say at the point of arrest and afterwards; the rights and limitations of those under our custody but most importantly, the right to presumption of innocence until proven guilty by a competent court of law.

“Once that is respected there will be no room for violations of other people’s rights under our custody,” she said. She said as part of the new reform and revitalization strategy and plans of the GPF, the human rights and professional standard unit of the Police Force have come up with a manual on standard operating procedures, to ensure that personnel of the GPF act and execute their functions within the confines of the law and in accordance with human rights principles.

“This is to ensure refresher training to serve as a reminder to our policing duties, ethics, principles and core values as law enforcers, as well as ensure that the right candidates are recruited for the job. Anyone found incompetent will be relieved,” PRO Njie said.

She said the Police Act does not mandate the police to involve themselves in settling land disputes, because this is wholly a civil and not criminal matter, and that the police have no business in the resolution of civil disputes.

However, in the case of Adama Faal against Bernard York, the Inspector General of Police, Attorney General and three others, the high court held that the police have usurped adjudicatory functions and powers of the courts to settle disputes between persons who were business partners. The court held that Faal’s arrest and detention were charades to intimidate him into submitting documents (title deeds) and to relinquish his interest in the landed properties.

The 1997 Constitution of The Gambia and other laws including the Police Act, empowers the police to maintain law and order. They are empowered to arrest and detain persons who are reasonably suspected of having committed a crime or are about to commit a crime. The police in exercising their powers, are expected to arrest and detain with caution and in consonance with the law, with due regard to the individual’s fundamental rights.

Section 19 (1) of Constitution stipulates that no one shall be deprived of his or her liberty or security of person except on such grounds and in accordance with such procedures as established by law.

Article 6 of the African Charter on Human and People’s Rights (ACHPR) also provides that every individual shall have the right to liberty and his person’s security. It provides further that no one may be deprived of his freedom except for reasons and conditions previously laid down by law.

In the Gambia, the right to liberty is a fundamental and inalienable right of every citizen. Judicial decisions have held in several cases that the police cannot arrest merely because it is lawful for a police officer to do so, because the existence of this power is one thing, but the justification for its exercise is quite another.

Court decisions held that the police are not allowed to make arrest on a mere allegation of the commission of an offence made against a person. Judicial authorities oblige police officers in the interest of protection of the constitutional rights of a citizen, that no arrest should be made without reasonable satisfaction reached after some investigation as to the validity of the complaint.

Adams Faal on the 11th of September 2020, sued the Inspector General of Police regarding some police officers who orchestrated his arrest, and the Attorney General, before the high court. He asked the court to make a declaration that his arrest and detention by the police was unlawful because it was a violation of his constitutional right under Section 19.

Faal is a carpenter by trade. He explained that he has been in carpentry business partnership with one Bernard York for thirteen years, on the basis that York will provide the finances for the setting up of a carpentry business, while Faal carries out carpentry works and anything acquired, will be shared equally between them.

Faal said they jointly purchased land in Tanji in 2010, where they built a workshop comprising two rooms where he and his family used to live. He explained that tools sent by York and tools he already owned, were used to equip the workshop. Faal said he carried out carpentry works at the workshop while York remained in the United Kingdom and occasionally came to The Gambia.

Faal claimed that between 2012 and 2016, he purchased two other properties in Tanji and another one in Brufut in their joint names. He said York then requested the transfer of one of the properties situated in Tanji, to his son and the other to Faal’s son. Faal said York then requested originals of the title documents to all the properties in their joint names. He claimed that in November 2017, York threatened to kill him and he reported the matter at the Tujereng Police Station. He said he withdrew the case but York continued to make his stay in the property in Tanji so unbearable, that he had to move back to his family compound in Ebo Town. Faal added that he tried his best to avoid any confrontation with York because he is married to York’s sister.

He on the 17th of August 2020, he was called via telephone by a police officer at Tujereng Police Station, inviting him the following day on a complaint lodged by York. That upon arrival at the station, he said he found York was already there.

Faal said the police informed him that York lodged a complaint against him that he has possession of the original copies of the documents of his properties. He said he told the police that the properties belong to both himself and York, and provided photocopies of the said documents to York, but the police demanded that he returns the following day with the original copies.

Faal said he told the police that the original documents were with his lawyer and that the issue relating to the properties is a civil matter and they have nothing to do with this. However, the police insisted that he returns the following day with the original documents.

Faal said he left and did not return and on the 13th of November 2017, his lawyer wrote to York demanding that he desists from his unruly behavior and misconduct against his client.

Faal, on the 8th September 2020, said he went to Ebo Town Police Station to visit an arrested person, but was eventually detained at the said station by the officer-in-charge, Buba Baldeh, on the representation of Sulayman Jarra, station officer of Tujereng Police Station, who ordered for his arrest whenever he is seen.

Faal said he was detained at the Ebo Town station at 6 pm while waiting to be picked up by the police from Tujereng, and was only released at 10 pm when the Tujereng Police failed go and pick him up. Faal said his lawyer called the officer in charge of Ebo Town station, but he declined to speak to her. At about 10:50 pm, Faal said he was picked at his residence at Ebo Town in the presence of his family by Sulayman Jatta, the station officer Tujereng.

He said he was told that they were going to take him to Tujereng but the police ended up taking him to Brusubi where he was detained in a small cell containing thirteen other people, without regard to the Covid-19 pandemic health and safety guidelines; that he was made to sleep on the bare dirty floor, and said York was present.

Faal said at around 9 am the following day, he was put in handcuffs and taken to Tujereng Police Station, where was not told the reason for his arrest and was not provided food to eat or water to drink. That his hands continued to stay in handcuffs even under interrogation by Sulayman Jatta in his office at Tujereng adding that he continued to deny him food and water.

Faal said he did not commit any crime and the matter relating to the said properties in the joint names of himself and York, is civil which is well known to the police. He added that he was not charged with any offence or arraigned before any court of law for any alleged crime.

Faal claimed before the high court that the police misused their authority, power and office on a complaint that was illegally and wrongly lodged by York. He further claimed that York caused his unlawful arrest and detention as a means of intimidating him to submit the documents of title deed, after knowing that he did not commit any criminal offence.

Faal said he reported to the Tujereng Station on the 10th of September 2020 at 10 am, and was subjected to another interrogation. He said a CID Officer (detective police) called his lawyer stating that York alleged that the properties were registered in his name even though, they were supposed to be registered in the name of Mr York as instructed. The officer then requested the lawyer to produce the documents of title.

Faal said as a consequence of his unlawful acts from the police, the carpentry business which he depended on to feed his wife, children and his extended family, was halted.

However, the police on their side of the story, said the arrest of Faal was lawful because he was detained on suspicion of the alleged commission of an offence (stealing), but was released within twenty four hours. The police claimed that Faal was released on the 9th of September 2020 and on the following day, his cautionary and voluntary statements were obtained. They however denied that he was not denied food, water or access to his lawyer.

Faal denied the claim by the police saying they went with him to all the properties to carry out measurements on the 11th of September 2020. That following their return to the station, the police asked him to relinquish his rights to two of the properties in Tanji, including the one housing the carpentry workshop and his residence. Faal said the police proposed that he retained the other undeveloped property, which is also situated in Tanji, and which would be transferred in his name, but he refused. He said the police continued to interfere in the civil matter despite having knowledge of this fact and at the time of filing a case against them at the courts, he was on bail.

The police admitted that on the 17th of August 2020, York lodged a complaint of seizure of land title deed documents by Faal at the Tujereng Police Station. On the same day, a text message was sent to Faal inviting him to answer to the complainant. On the 19th of August 2020, Faal voluntarily honoured the invitation and was informed of the substance of the allegations, but was told to return the next day. Faal said he failed to return as promised and was apprehended at Ebo Town Police Station on 8th September 2020, and conveyed to Brusubi Police Station where the police detained him overnight. That following investigation during the day, the police released him within twenty four hours of his arrest, and was invited to report the police station the next day, which he did and provided his voluntary and cautionary statements.

Justice Aminata Saho-Cessay in her decision dated 11th September 2020, said there is no evidence before her that a complaint was filed at the police by York, by saying that the police did not produce any the complaint made by York. The Judge held that the admission to having the original copies of the documents in his possession cannot be attributed to theft for him. She held that Faal’s holding of documents in which he has interest in, cannot form basis for reasonable suspicion of theft. The Judge pointed out that Faal already told the police that the documents were with his lawyer and therefore, the matter was a civil case. The Judge held that the reasons mentioned by the police do not establish reasonable suspicion for the arrest and detention of Faal, and held that the police have no right to determine which properties belong to York and which ones were to be retained by Faal.

In a similar but different case involving one Almameh Marong against the Inspector General of Police delivered on the 24th of October 2019 by the Gambia Court of Appeal, the court held that the police violated Marong’s right by detaining him beyond seventy two hours, as mandated by the constitution of the Gambia.

Marong is a Gambian national and farmer, resident in Mandori village in the Central Badibu District of the North Bank Region. He was arrested and detained, and his cattle was taken and distributed on the personal orders of Abdou Saidy, the Station Officer of Njaba Kunda Police Station, who operates under the command and orders of the Inspector General of Police.

On Wednesday, 10th August 2016 at about 11 am, Mr. Marong claimed that police officers met him at his farm in Mandori village applying fertilizer to his crops and they arrested him without a warrant and took him to the Njaba Kunda Police Station, causing him to abandon his farm for the day and for few more days afterwards.

He testified that he was instructed to bring all his cattle or else he will not be released on bail. He compiled with the police request, but was still refused bail. He stated that he paid for the transportation of his cattle to the station.

Marong said Station Office Abdou Saidy took his seven cattle and gave five heads to one Alhaji Seedou Sanneh and  two heads to one Jarra Jadama. That the remaining two cattle were returned to him after days of his detention. Marong said SO Saidy uttered embarrassing statements against him in public and in the midst of his kinsmen which has caused immeasurable and irreparable damage to his reputation in the community.

The three Justices of the Gambia Court of Appeal held that the detention of Marong beyond the seventy two hour time limit and the unilateral deprivation of his cattle without due process by officers and agents of The Gambia Police Force, was unlawful and unconstitutional, because it constitutes a gross violation of his fundamental human rights guaranteed under the 1997 Constitution of The Gambia.

The police were asked to pay damages of D20,000 and D50,000 as cost, bringing the total sum to D70,000.

In another development, the high court ordered the police to pay one Sylvanus Johnson D40,000 for unlawful detention beyond seventy two hours as provided in the Constitution.

In this particular case, Johnson sued the police on the 16th of December 2020, seeking a declaration that his detention from the 4th to 19th April 2020, constituted a violation of his right to personal liberty as enshrined in the Constitution of the Gambia, and asked to be compensated. Johnson was not arraigned before any court of law during the period of his detention at Police headquarters in Banjul. It was the case of the police that Johnson was arrested on the 7th of April 2020, on the allegation of rape pursuant to a complaint filed by a ten year old girl. The police said Johnson was cautioned, and his voluntary statement was obtained and was charged before a court of law on the 13th of April 2020, but due to the pandemic, the court proceedings were suspended. The police further stated that bail was also opened for him, but it was his fault that he could not fulfill the bail conditions.

Presiding judge in this case, Justice Alexander Osei Tutu, held that the detention of Johnson beyond the seventy two hours, was contrary to the expressed provisions of the Constitution without any good cause or justification. The court disagreed with the police because during the pandemic, the courts were open to hear emergency matters such as bail applications. The Judge held that the police “woefully failed” to justify Johnson’s detention.

In many other cases investigated and documented by this medium, agents of the Gambia police force have been found wanting and fined by the courts, for violating people’s fundamental rights.

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