by Assan Sallah, LTN Germany
Justice Sheriff B. Tabally of the Brikama High Court on July 20, 2023 delivered a landmark judgement against police officers who were found guilty of torture against a civilian. The Applicant Assan Jagne filed a lawsuit against police officers at Farato Police Station, accusing them of torture and violating his rights.
The complainant filed an originating summon against the Inspector General of Police (1st Respondent) and the Attorney General (2nd Respondent).
Lawyer Malick H.B Jallow represented the applicant Assan Jagne.
In his judgment, Justice Sheriff Tabally ruled the following:
He said:
1. It is hereby declared that the excruciating injuries inflicted by agents of the 1st respondent against the applicant is a violation of his constitutional right to be protected from torture, inhumane or derogating treatment as enshrined under Section 21 of the 1997 Constitution of The Gambia.
2. An Order directing the 1st respondent to issue a public apology, formal and unreserved apology to the applicant for personal harm inflicted on him by agents of the 1st respondent.
3. D350,000 is awarded to the applicant against the 1st respondent for the violation of his rights under section 21 of the Constitution of The Gambia 1997.
4. Legal and amdinistrative cost of D75,000 is awarded.
Below we reproduce Justice Sheriff S. Tabally’s judgment verbatim:
The applicant instituted this action by Originating Summons dated the 30th of March 2022, seeking the following:
1. A Declaration that the excruciating injuries inflicted by agents of the 1st Respondent against the Applicant is a violation of his constitutional right to protection from torture, inhumane or derogating treatment as enshrined under Section 21 of the 1997 Constitution of the Republic of The Gambia.
2. An Order directing the 1st respondent to issue a public apology, formal and unreserved apology to the applicant for personal harm inflicted on him by his agents.
3. An Order awarding reasonable monetary compensation to the applicant for violation of his rights under Section 21 of the 1997 Constitution of the Republic of The Gambia, to be paid by the 1st respondent.
4. Legal and Administrative fees of D100,000.
5. Costs.
The Applicant claims that on the 20th of November, an unknown man approached him and informed him that a plastic cone was underneath his vehicle. The man in question was very rude and aggressive towards the applicant which led to a confrontation between the two. In the ensuing arguments, other police officers appeared, joined in and started assaulting the applicant mercilessly on his face until he fell on the ground.
The officers continued kicking the applicant on his face and other parts of the applicant’s body whilst he was still on the ground. The applicant was thereafter arrested and detained at the police post at Farato for about 7 hours or thereabout. As a result of the beating the applicant sustained serious injuries around the face. The applicant was taken to Sheikh Zayed Regional Eye Care Center where he was medically examined and treated. A medical report was issued to the applicant which is exhibited to the supporting affidavit. “That as consequence, the applicant suffered trauma and financial hardship during the period including the cost of receiving timely medical treatment. The applicant claims the treatment meted out to him by the police officers is in violation of his constitutional rights and thus he is entitled to monetary compensation.
The Respondent was duly served with the Originating Summons and in response filed an affidavit in opposition notwithstanding the fact that it did not participate in the hearing of the instant application.
The respondent refuted the claims of the applicant in every material particularly in the averments of the affidavit in opposition. The unknown man referred to by the applicant is a police officer named Omar Bah. The said police officer Omar Bah intercepted the applicant whilst on traffic duties at Farato on a complaint received from a colleague police officer named Sulayman Camara who was on duty at Mingdaw Secondary School on the day in question.
It is deposed that the officers informed the applicant that he had knocked down a traffic refelector cone which was under the applicant’s vehicle at the time. The police officer Omar Bah was neither rude nor aggressive but, merely asked the applicant to follow them to the police station at Farato but the applicant refused. That applicant appeared to be drunk resisted arrest and officer Sulayman Camara assisted his colleague Omar Bah to effect the arrest of the applicant. That as the applicant resisted arrest, officer Sulayman Camara merely attempted to remove the car key from the ignition and the applicant reacted by attacking and assaulted officer Omar Bah by grabbing him by the reflector shirt that the said officer was putting on at that time.
The applicant was arrested and detained during which he was cautioned and charged for assaulting a police officer in the due execution of his duties, and obstruction. As a reult cautionary and voluntary statements were obtained from the applicant herein. The two aforementioned police officers also made witness statements at the police to the effect.
There is clearly factual dispute in terms of what transpired when the applicant and the said police officers had altercations on the day. The court is confronted with two irreconcilable versions of events and it follows logically that one can be true. It is trite learning that when confronted with irreconcilable versions, the court must make findings on:
i. The credibility of the various factual witnesses;
ii. Their reliability, and
iii. The probalilities.
The applicant deposed that he was beaten mercilessly, arrested and detained. That he also sustained serious injuries necessitating urgent medical attention evidenced by the medical report annexed hereto. This corroborates the claims that he indeed suffered injuries. This is not disputed in the affidavit in opposition filed herein on behalf of the respondents. It is a basic principle of law that what one admits needs no further proof; First International Bank V. Gambia Shipping Agencies (2002 -2008) GLR 2.
It is also apparent that the affidavit in opposition was deposed to by one other that the aforementioned police officers whose statements are attached and relied on the respondents in support of the defence to this action.
A careful perusal of copies of the statements allegedly made by the two officers at the scene cearly highlighted material discrepancies of the conduct of the applicant which forms the basis of his arrest.
It is settled that police officers are empowered to detain and or arrest anyone upon reasonable and probable cause that that person has or is about to commit an offence. What remains to be determined is whether the arrest and subsequent detention of the applicant was lawful or not?
The Applicant deposed that when he was arrested, he suffered degrading treatment due to the beatings that was meted out to him. He was released after seven hours. It is the respondent’s version that the arrest of the applicant was lawful and in accordance with practice. I have taken note of the witness statements of the two aforementioned police officers who effected arrest of the applicant herein. It is not disputed that there was an altercation.
The aforementioned police officers justified the arrest and subsequent detention of the applicant on grounds that he hit a traffic reflector cone and refused to stop when requested to do so. Therefore, he resisted arrest and thus committed a crime of obstruction of a police officer in due execution of their duties, as a result of which the applicant was arrested and detained.
From the undisputed facts, the arrest and subsequent detention of the applicant on the grounds of alleged or complained is supposed to be in accordance with the powers under the law and granted by the Constitution.
Section 19 (1) of the Constitution of The Gambia 1997 states:
“Every person shall have the right to liberty and security of peronal liberty 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 ass 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 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 the court.
(b) upon reasonable suspicion of his or her having committed, or 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 event, wiithin seventy-two hours.
The test, as to whether there is reasonable and probable cause is both subjective and objective. The perceived facts must be such as to allow the reasonable third person and actually cause the officer in question to suspect that the person has committed or is about to commit a crime. The reasonable police officer is assumed to know the law and possessed of the information in the possession of the arresting officer would have believed that the claimant was guilty of the offence for which he was arrested. The term ‘reasonable suspicion’ relates to the existence of facts at the time. It does not relate to a perception on the state of the law; see the case of King v Gardner (1980) 71 Cr. App. Rep. 13, Todd v DPP (1996) Crim. LR 344.
No criminal charge can be laid against anyone unless the police ground their suspicion that the person has committed that offence on admissible evidence;
Hussain v Chook Fook kam (1970) A.C. 942.
It was held in the case of Denton v The Director General ,National Intelligence Agency and Others (2006) HC 241/06/MF087/F1(unreported)24/07/2006 that:
“Once a fundamental right under the construction has been shown to be involved, and it has been further shown that this constitutionally protected right has been impaired by the state, then it must come forward and discharge its burden of establishing that the infringement in question was justified by a compelling public interest.“
Therefore, the onus is on the respondents to prove on the balance of probability that the applicant assaulted and or wilfully obstructed the aforementioned police officers in the execution of their duties. The applicant herein claims that on the day in question, he was beaten, arrested and detained for about 7 hours . This fact is not controverted in any way. Curiously, there is no proper record to justify his detention for that length of time.
The respondents by the averments in the affidavit in opposition admitted that the applicant was taken into custody on the day and subsequently released, and pleads that the applicant was lawfully taken into custody in accordance with the provisions of the Constitution of The Gambia 1997. When looking at the undisputed facts of this case and averments contained in the affidavits herein, I find the version of the applicant more plausible. The respondents offered a blank denial of the claims herein and actual involvments of the agents of the 1st respondent which I consider to be unreliable. Thus, I find that the arrest and subsequent detention of the applicant is unjustified, and I hold that it is unlawful.
The plain and fundamental rule is that every individual person is inviolable. Once the arrest or imprisonment has been proved, it is for the defendant to allege and prove the existence of grounds in justification of the infraction. The unlawful arrest and detention of the applicant and subsequent beatings by agents of the 1st respondent is inhumane and degrading in my humble view.
Under Section 19 (6) of The Constitution of The Gambia 1997, the court is clothed with the discretion to grant such redress as is appropriate for the enforcement of the fundamental rights provisions. The general factors which the court should consider in such case will include the loss of liberty, the loss of reputation, himiliation and disgrace, pain and suffering, loss of enjoyment of life, loss of potential normal experiences. Some of these may not be the relevant whilst some may have greater effect and impact than the eventual sum awarded in the end.
In light of foregoing, I am satisfied that the applicant has discharged his onus of proving on the balance of probabilities that he is entitled to the reliefs herein. In the result, the following orders are made:
5. It is hereby declared that the excruciating injuries inflicted by agents of the 1st respondent against the applicant is a violation of his constitutional right to be protected from torture, inhumane or derogating treatment as enshrined under Section 21 of the 1997 Constitution of The Gambia.
6. An Order directing the 1st respondent to issue a public apology, formal and unreserved apology to the applicant for personal harm inflicted on him by agents of the 1st respondent.
7. D350,000 is awarded to the applicant against the 1st respondent for the violation of his rights under section 21 of the Constitution of The Gambia 1997.
8. Legal and amdinistrative cost of D75,000 is awarded.