Justice Emmanuel Nkea of the Special Criminal Court in Banjul last Tuesday, 24th April 2012 convicted and sentenced one Aja Suwareh, a 25-year-old woman to 10 years imprisonment after being found guilty of the offence of manslaughter.

The accused was indicted for the offence of manslaughter contrary to Section 186 and punishable under Section 189 of the Criminal Code, Cap 10:01 Volume III, Revised Laws of The Gambia 2009.

The particulars of the charge stated that the convict, Aja Suwareh, on the 24th August 2011 at Fajikunda, unlawfully caused the death of one Fatou Touray by stabbing her with a knife on the chest, a charge the accused denied.

The case of the prosecution was led through four witnesses and three exhibits were tendered and the convict testified as the lone witness in her defence but tendered no exhibit.

Delivering judgement, Justice Nkea disclosed that in a charge of manslaughter, the prosecution must prove the following constituent elements: that there was death and that the death was unlawfully caused by gross negligence.

Justice Nkea further disclosed that in the instant case, the convict expressly raised the defence of accident. He disclosed that in her testimony before the court, the convict stated that she sent the deceased to get her some hot coal for cooking, but the deceased did not go, and she picked up a piece of firewood to beat her up for failing to take instructions.

The convict said she had a knife on the other hand, the child suddenly rushed towards her and injured herself by the chest on the knife. The accused rushed her to the hospital, where she was pronounced dead.

The presiding judge asserted that it is trite law that once a cautionary or voluntary statement has been admitted in evidence, it becomes part of the case for the prosecution, which the judge is bound to consider for its probative value.

Justice Nkea cited the case of Edet Offiong Expe Versus the State (1994) 9 NWLR (pt 368) 273, and Nwachuku Versus the State (2007) 31 NSCQR 312-359) and disclosed that the later evidence of the convict in court as an afterthought calculated to cloud the vision of the court.

The judge noted that the court would not believe any bit of the evidence of the convictin court and would therefore not rely on it. The presiding judge read Section 7(1) of the Criminal Code and remarked that the said Section is ex-facie, an exonerating and exculpatory provision.

Justice Nkea further remarked that if the defence of accident is fairly raised on the evidence at trial and not excluded beyond reasonable doubt by the prosecution, the court must discharge ad acquit the accused.

Justice Nkea disclosed that in the instant case, the beating of the child with a knife in hand which slips and injured her to death did not seem to him to have answered the description of an event which occurred by accident, adding that it is impossible to say that that grievous bodily harm was so unlikely a consequence.

Justice Nkea pointed out that he was satisfied that the prosecution had negate the defence of accident and in doing so established the second element of the offence of manslaughter beyond reasonable doubt. He further pointed out that he was satisfied that the prosecution had sufficiently proved their case with the degree of certainty required by law.

In her allocutus, defence counsel Amina Saho-Ceesay drew the court’s attention to Section 29(2) of the Criminal Code and urged the court to exercise the powers conferred under the said Section. Defence counsel Ceesay remarked that the convict is a young woman with her whole life in front of her. “A life that she intends to spend with her husband and a life she intended to spend with the deceased,” she asserted and then urged the court to temper justice with mercy.

Passing the sentence, Justice Nkea disclosed that the current trend in the administration of criminal justice is for the courts to give the offender the punishment which is proportional to the offence, taking into consideration such factors as offence seriousness, protection of the public and mitigating circumstances.

“I have considered the fact that the convict is a first time offender, the particular circumstances of this case she has shown sufficient remorse throughout this trial. I find that the convict is truly sorry for her negligent act and the fact that she collaborated with the police from the very onset further demonstrates her remorse. I hold all these as compelling extenuating circumstances in favour of the convict. These are very strong reasons for me to temper with mercy,” he said.

Justice Emmanuel Nkea stated that he found it fit and proper in the particular circumstances to invoke and rely on the provisions of Section 29(2) of the Criminal Code in favour of the convict. Justice Nkea remarked that in leaning backwards, he must consider the fact the life of a young Gambian girl has been taken away by the negligent acts of her guardian mother. The convict, Aja Suwareh, was therefore sentenced to serve 10 years imprisonment.