The first prosecution witness in the voire dire trial of the former Inspector General of Police Ensa Badjie, Inspector Ballo K Jobe of the police headquarters, has denied defence accusations that the ex-IGP Ensa Badjie was tortured before he obtained his (Ensa Badjie) 22-page cautionary statement on the 7th of March 2010 during a voire dire ( mini trial) last Friday, 13th of August 2010 before Justice Emmanuel Amadi of the High Court in Banjul.

Ex-IGP Ensa Badjie, Mam Matarr Secka and Kuluteh Manneh, it could be recalled, are standing criminal trial on multiple charges ranging from conspiracy to commit seditious act, sedition, abuse of office, official corruption, obtaining goods by false pretence, economic crime, among others.

The witness, while responding to questions posed to him by defence counsel Borry Touray, told the court that it is not true that he saw blood running down the nose of Ensa Badjie on the 7th of March 2010, prior to obtaining his statement at the NIA headquarters in Banjul. Whilst giving evidence, PW1, Inspector Ballo K Jobe explained how he obtained Ensa Badjie’s cautionary statement in the presence of an independent witness, Babucarr Khan, on the 7th of March 2010.

The witness further said that Badjie was of a sound mind and condition, when the said statement was obtained from him. He added that Ensa Badjie voluntarily made his statement and he never saw any weapon (s) such as gun, handcuff etc in the conference room when Ensa Badjie's statement was obtained.

"As far as I know, nothing was done to the accused before and after his statement was obtained", Inspector Jobe said and pointed out that he was not also aware if the 1st accused, Ensa Badjie was promised any favour prior to obtaining his statement. PW1 said he was also never aware that Ensa Badjie was induced or subjected to any form of abuse before making his statement.He said the independent witness spoke English during the time he obtained Ensa Badjie’s cautionary statement, but that it was the 1st accused, Ensa Badjie that volunteered to make his statement.

However, the said cautionary statement made by ex-IGP Ensa Badjie was tendered and admitted as prosecution mini trial exhibit one. Defence counsel Borry Touray asked Inspector Jobe if Ensa Badjie was under arrest at the time he made the said statement. The witness in his reply disclosed that Ensa Badjie made the said statement whilst he was under arrest and detention. He further stated that Ensa Badjie was detained at the Mile II State Central Prisons, but did not know the exact NIA officers who usually took him from Mile II Central Prisons to the NIA headquarters.

The witness admitted that though he knew that the offence Ensa Badjie was charged with is bailable, the issue of bail was never raised before the panel during his interrogation.He said he did not also know whether Ensa Badjie was arrested on the 2nd of March 2010 or not.Inspector Jobe also told the court that he knew one Omar Cham but he could not remember whether Ensa Badjie was received from Mile II Prisons at about 1:00am, noting that he only reported at work at about 10:00am on the 7th of March 2010 as a member of the panel.

He went on to tell the court that he was never aware that Ensa Badjie was taken from Mile II Central Prisons at about 1:00am and kept until members of the panel arrived, because he (the witness) had never met him (Ensa Badjie) at the conference room. When asked as to whether the panel has a diary of action, the witness replied that he couldn't remember whether the panel had a dairy of action, as he personally could not remember recording anything on any diary of action."You want the court to believe you that the panel acted in vacuum during the investigation of this matter?" Borry Touray asked the witness who replied that the panel never acted in vacuum.

The witness told the court that he was enlisted into The Gambia Police Force in 1989.He said he was not aware that on the 7th of March 2010 Ensa Badjie requested from him to allow him (Ensa Badjie) to see the director general of the NIA. When asked whether he saw blood running down the nose of Ensa Badjie on the 7th of March 2010, the witness however refuted the said claims."I put it to you that it was because the 1st accused was in such a pitiable state that you and Alhaji Morr Jobe were shedding tears", defence counsel quizzed the witness, who replied that he never cried at the NIA because of Ensa Badjie.

"I further put it to you that, that was the reason you wrote his statement and he was on handcuffs." Borry Touray still cross-examined the witness, who replied that if Ensa Badjie were on handcuffs, he wouldn't have been able to sign the 22-page statement. He then denied claims that he removed handcuffs from Ensa Badjie in order to enable him sign the said cautionary statement.

When asked whether he participated in the recently concluded treason trial involving the state against Lang Tombong Tamba and seven others, the witness replied in the negative and also said he was not aware if Babucarr Khan acted as an independent witness in obtaining statements in the recent treason trial of the ex-CDS of The Gambia Armed Forces, Lang Tombong Tamba and seven others.

He further denied claims that he was aware that Babucarr Khan was an undercover agent who was on the payroll of the NIA, noting that the said Babucarr Khan was only called as independent witness. Inspector Jobe told the court that he was never aware that Ensa Badjie was beaten severely before he was brought before the panel. He also denied defence claims that Ensa Badjie was placed in a dark room and severely beaten by unknown persons.

"I am putting it to you that Ensa Badjie was told to narrate the same story as in prosecution mini trial exhibit one," Borry Touray quizzed the witness, who said he was not aware. "I put it to you that you are afraid to speak the truth because of threats by the NIA" defence counsel Touray further posed to the witness, who told the court that he was not under threat, pointing out that he went to the panel as a police officer acting on the instruction of the Inspector General of Police.

The witness told the court that he did not know any Babucarr Sallah at the NIA; neither did he know Korka at the NIA. Inspector Jobe,also denied claims that it was Babucarr Sallah and Korka that were specifically assigned to go to Mile II Central Prisons to take Ensa Badjie from there to the NIA.

He claimed that some panel members used to go to Mile II Prisons to collect the accused persons, noting that he can attest to the fact by producing receipts. At that juncture, defence counsel Borry Touray applied that the prosecution furnish the court with the diary of action in respect of the panel of investigation into the alleged case concerning his client. Borry Touray informed the court that he wished to cross-examine the witness on the said diary of action.

In his reply, the Deputy Director of Public Prosecution, Mikailu Abdulahi opposed the application arguing that there is evidence before the court showing the existence of any diary of action. The DDPP advanced that the witness has categorically stated before the court that he was not aware of the existence of any diary of action. He contended that in order for the court to exercise its discretion, it has to establish the existence of any diary of action.

The DDPP also submitted that since the witness has told the court that he was not aware of the existence of any diary of action, then it is trite law that one cannot ask someone to produce something that someone doesn’t have and therefore urged the court to dismiss the application.In his reply on points of law, Borry Touray advanced that it is irrefutable presumption that in every criminal case there must be a diary of action and that he was aware that the police was in custody of the diary of action.

Touray linked the prosecution stance to a scenario where there was a trial before the court but no case file. He therefore urged the court to order the prosecution to furnish the court with the diary of action. In his ruling, Justice Amadi explained the different kinds of scenarios where irrefutable presumption could be applicable. He further explained that since the witness has told the court that he was not aware of the existence of such diary of action, it would be futile for the court to make orders for the prosecution when there is uncertainty as to the existence of such document.

Justice Amadi pointed out that it is the requirement of the law that such document be brought before the court which may require the court to make further search and investigation. He said that in his view it is unnecessary since the witness has repeatedly told the court that he was not aware of the existence of such diary of action. Justice Emmanuel Amadi therefore dismissed the defence application to tender the diary of action and the case was adjourned to the 17th of August 2010 at 2:30pm.