6. In line with article 43 of the Court’s Rules of Procedure, the Court demanded that evidence should be introduced to
prove the facts, notwithstanding the absence of the defendant.
Evidence of witnesses
7. On 26 November 2007 during the hearing the plaintiff called in three witnesses who testified on his behalf. The first
witness, (PW1) Mr Usman S Darboe, a native of the Republic of The Gambia and the news editor of the Daily
Observer newspaper said he was present at the time the plaintiff was arrested. He stated that he has personally
known the plaintiff for well over 17 years and has worked with him for seven years. According to him, on 11 July
2006, while they were in the office, the Gambian police came and arrested the plaintiff. He further stated that he has
not seen the plaintiff since his arrest, but as a journalist he made investigations about him in the course of his work
and was informed that the plaintiff was detained at Mile 2 Central Prison, Banjul . PW1 also said that to the best of his
knowledge the plaintiff has not been charged with any criminal offence. PW1 stated that sometime during the latter
part of July 2006 it came to his knowledge that the plaintiff had been moved from the National Intelligence Agency
(NIA) to Fatoto police station.
8. The second witness (PW2), Mr Yaya Dampha, is a journalist with the Foroyaa newspaper based in The Gambia.
He stated that he knew the plaintiff as both of them worked as journalists in The Gambia. He mentioned that he does
not know the whereabouts of the plaintiff presently but that he was informed of his arrest in July 2006. PW2 continued
that he last saw the plaintiff in December 2006 after his office had a tip off that the plaintiff had been moved from the
Central Prison in Banjul to an unknown location. He then embarked on a search mission and visited several prisons.
He eventually saw the plaintiff in Fatoto police station when the plaintiff was being escorted back to his cell after a
meal. Mr Yaya Dampha further testified that the Foroyaa newspaper published the arrest and detention of the
plaintiff. This was tendered as exhibit ‘A’. The publication did not elicit any reaction from either the police or National
Intelligence Agency.
9. The third witness (PW3), Professor Kwame Karikari, is a native of the Republic of Ghana and a professor with the
University of Ghana , Legon. He is the executive director of an organization called the Media Foundation for West
Africa which has correspondents in each of the fifteen countries of ECOWAS. They monitor issues that concern the
media and press freedom. Professor Kwame Karikari does not know the plaintiff in person, but as a journalist, who
was working with the Daily Observer in The Gambia. The organization received information that the plaintiff had been
arrested and detained without any criminal charge(s) preferred against him in July 2006. This information was
confirmed when they contacted other media men in The Gambia. The Media Foundation contacted lawyers in The
Gambia to facilitate the release of the plaintiff but they were advised that they could not obtain justice in The Gambia
so they should pursue the matter before the Community Court of Justice, ECOWAS.
10. The evidence of these witnesses stood uncontroverted. Even after the evidence of these witnesses, the Court by
a ruling, gave another opportunity to the defendant to attend the next session to cross-examine the witnesses, and to
present their side of the story, if they so desired, but they still failed or refused to attend. It is manifestly clear the
defendant does not desire to be heard, so the trial proceeded in default.
11. The facts to the Court for determination are in respect of the violation of articles 2, 6 and 7(1) of the ACHPR,
related to individual freedom, fair hearing and the prohibition of all forms of arbitrary detention.
Issues for determination
Issue 1: Whether the arrest and detention of the plaintiff is justified under the African Charter on Human and
Peoples’ Rights
12. The competence of the Community court of Justice in applications filed by individuals arises from articles 9(4) of
the 1991 Protocol and 10(d) of the Supplementary Protocol on the Court of Justice. They provide:
Article 9(4) The Court has jurisdiction to determine cases of violation of human rights that occur in any member state.
Article 10(d) Access to the Court is open to individuals on application for relief for violation of their human rights.
These provisions enable an individual to access the Court directly in human rights issues, and to give the Court the
competence to entertain such applications.
13. The application of the plaintiff was primarily premised on article 6 of the African Charter on Human and Peoples’
Rights which reads as follows: