The Gambian Drugs Court
The English and Welsh pilot scheme of dedicated drugs courts has been running since December 2005. The six Magistrates Courts taking part in the pilot are West London, Leeds, Cardiff, Salford, Bristol and Barnsley . In these courts, the same district judge or magistrates sentence offenders and review their progress on community orders with drug rehabilitation requirements. District Judge Justin Phillips, who sits at West London is a passionate proponent of the scheme. He has been photographed at court wearing a yellow and black striped rugby shirt with the words “HUGS NOT DRUGS” printed on the back.
In the Gambia , there is one dedicated drugs court – court 3 in the Banjul Magistrates Court. The drugs court sits every Thursday and hears prosecutions for drugs offences from all parts of The Gambia. On the morning of the day that we visited, the magistrate heard a succession of prosecutions for possession or trafficking of cannabis.
Immediately after lunch, the prosecution of two officers of the National Drug Enforcement Agency, was called on. In January, they had been charged with possession of a prohibited drug (cannabis) and conspiracy to commit a felony – breaking into the Agency's exhibit store and stealing an astonishing 940 kilos of cannabis.
Prosecuting counsel rose and called her principal witness, the Commissioner of the NDEA. A tall, imposing man, with a shaved head and scarred nose, wearing a bottle green knee length robe, strode up to the witness box. Using the Holy Koran, which was lying on the ledge of the witness box, he took the oath, to “tell the truth, the whole truth and nothing but the truth, so help me God.”
“Tell us, Commissioner, where were you after you left your office on June 26th last year?” “I was at home.” he answered. “What happened next?” “I told my wife I had to return to the office to get some money I had left there. I had forgotten to buy a ram. I was so tired, I phoned my nephew, so that he could drive me there. He drove and parked. I went upstairs, when, to my surprise, I found the two accused, on permanent duty, using sticks to remove cannabis from the exhibits store through a broken window. Some drugs had already been removed and were lying by the door on a towel. It was a really shocking situation. As a result, I remained quiet for two minutes. I looked at them. They looked at me. I did not expect officers to behave in such a manner. I said “Why, as narcotics officers, do you have to break in?” They responded “It was a mistake” and started begging me for forgiveness. I said “I cannot condone such a thing.” I used my mobile phone to get my nephew to come up and witness what I had seen. I went to my office and phoned the director of the NDEA to ask him what to do. He authorised me to arrest them. When I returned, the first accused was nowhere to be seen. Later he reported himself.”
The exhibits were produced. A hoe, or gardening implement, and a stick were carried into the court room. The commissioner recognised them. The pieces of paper which were the exhibits labels were torn off and thrown onto the floor. New pieces of paper were stapled to them. Then an officer brought in a dirty towel, tied up like Dick Whittington’s bundle. It was loose – not wrapped in any kind of exhibits bag. He put it on the floor of the court room and opened it up, revealing six black plastic bags, some brown paper and perhaps a kilo of herbal cannabis. Some of the cannabis blew onto the floor. Defence counsel, wearing dark, pin striped suits, picked up the towel and put it on their bench. As they poked around, examining the contents, more cannabis fell out. One barrister started to cross-examine, while counsel for the other defendant tied up the towel and blew cannabis stalks and leaves from the bench onto the floor. The commissioner was shown his statement. He was asked if he had included in it everything that had happened that day. He said that he had. Counsel then turned to the magistrate and said “Is it a convenient moment?” The Magistrate said that it was and adjourned to the following Thursday.
The accused, who were both on bail, left court, and the magistrate moved on to next case, involving a National Assembly Member (NAM) and an ex-soldier, both charged with drugs trafficking. At an earlier hearing, the court had heard that, after receiving a phone call, officers stopped a Mitsubishi Pajero at a police check point. Inside, they found the NAM, the ex-soldier and thirteen big bundles of cannabis, weighing nine kilos. When cross-examined, the arresting officer said he could not disclose the source of his information or the name of his informants. Today’s evidence was limited to brief cross-examination of the officer in charge of the exhibits store. “Can you say who the drugs in the vehicle belonged to?” “Yes, the accused.” “How do you know?” “From the arresting officer.” “He told you?” “Yes.” The officer then answered some questions about who was present when the accused were brought to the police station, even though he was not present at the time. The case was then adjourned, but not before the magistrate, who was clearly riled by the late arrival of the barristers in the case, lectured them about how the High Court was not more important than the magistrates court. Defence counsel responded by saying “of course the High Court is not more important than the magistrates court” but then explained that he had been instructed in a capital case. “I had to deal with it.”
In the final case, a senior officer described how he had heard that there were drugs in the accused’s compound and so called up other officers to carry out a raid. Inside the premises, they found a black bag, containing 19 parcels of cannabis. Outside, he spotted a large quantity of cannabis stored in rice bags, high in a mango tree. He instructed a junior officer to climb the tree to retrieve the drugs. The officer said that the accused was present and admitted that the drugs were his. The prosecutor called for the drugs to be produced from the court exhibit store. Several boxes were produced, but not the bags from the mango tree or any of the drugs. No one seemed perturbed by the prosecution’s inability to find the drugs. Like many of the accused, the defendant was unrepresented. The clerk helped him cross examine, by putting just two questions to the officer. He suggested that the accused was not at the compound at the time of the raid and that he did not admit that the drugs were his. Predictably, the officer said he was and he did. This case was also adjourned for a week, to enable the accused to call witnesses. He was remanded in custody. He told the magistrate that his only witness was his wife, but she was dead. The magistrate commented “So how can you call her?”
This, we were told, was a typical day in the Gambian Drugs Court. The evidence may have been striking, but there were aspects of the proceedings which were familiar to English observers. Proceedings were in English, but often interpreted to and from the local language, Wolof, either by the clerk or an interpreter. Several cases were adjourned because there was no interpreter. The court sits in a concrete and glass building, officially opened in February 2002 by President Wade of neighbouring Senegal. The professional magistrate sat alone on a raised bench in a ply-wood panelled court room, beneath a coat of arms with the words “PROGRESS, PROSPERITY, PEACE.” He took long hand notes, while a junior clerk slept. There were witness boxes on either side of the room and ten rows of hard, wooden benches, like those in English Magistrates Courts of old. There was though no dock and apparently no cells for defendants remanded in custody. They sat on the left hand side of the public benches, separated from the aisle by plain clothes guards. Indeed, it was impossible to distinguish the guards and the narcotics officers from the defendants – most were similarly dressed in jeans and t-shirts or football shirts. Photocopied sheets of paper, sellotaped to walls stated “SWITCH OFF YOUR MOBILES PHONES” with the “S” in “MOBILES” crossed out. The notices were often ignored. As one mobile phone rang, all in court, including the magistrate smiled at the ring tone, as the owner rushed out to take the call.
The magistrate, a member of the Commonwealth Magistrates and Judges Association, welcomed us into his private room and spoke freely. He is an admirer of the English Judicial System and had Jeremy Thorpe: A Secret Life on his desk. He pulled out Mike Mansfield’s Presumed Innocent and David Rose’s In The Name of the Law from his briefcase. He sat the Bar exams at Lincolns Inn, but failed them twice. He later passed the Bar exams in Sierra Leone. (Failing law exams does not seem to be an impediment to a legal career in The Gambia – last month it was reported that the recently demoted Solicitor-General had failed his LLB exams twice before being graded “Allowed To Pass”.).
The magistrate referred to the abolition of jury trials some years ago, a reform which he welcomed. However, he seemed less happy with the mandatory minimum penalties for drug offences which were introduced in 2003. For possession of cannabis, however small the quantity, the minimum sentence is a 100,000 fine (equivalent to £2,500) and three years imprisonment. For trafficking (i.e. any offence involving over 2 kilos of cannabis), the minimum sentence is a one million dulasi fine (equivalent to over £25,000) and 10 years imprisonment. Those who cannot pay the million dulasi fine must serve an additional five years imprisonment. Time spent on remand does not count towards sentence. In view of the numerous adjournments, the accused are often remanded for many months. The magistrate also talked about a new system of plea bargaining. It operates in chambers, “so that the press don’t know about it.” In open court, he complained about the lack of civilian witnesses. He said that people were smoking cannabis in the street, “just like in Jamaica”, but that witnesses would not come to give evidence about it.
Sometimes, visits to other countries and their courts put the problems that we face into perspective. Our criminal justice system has a sophisticated our sophisticated system of checks and balances. We take the integrity of our judges and (with few exceptions) police officers for granted. Although bribery of judges and magistrates was common in eighteenth century England and Wales, such a possibility is now unthinkable. We may complain about inadequate resources, but in comparison, our courts are well funded. Modern forensic science techniques are widely available. The continuity and preservation of exhibits is routine. The taping of interviews and the exclusionary provisions of the Police and Criminal Evidence Act are important safeguards against the fabrication of confessions. Despite the current issues surrounding legal aid, the overwhelming majority of our defendants are legally represented. Active case management and sensible listing practices ensure that defendants do not attend court week after week for trials. Finally, and perhaps most importantly, juries ensure fair trials in most serious cases. One should never be complacent, but there is much for which we should be grateful.
Nic Madge