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Sunday, April 11, 2021

3 Senegalese fathers sentenced for inciting their 3 sons, to embark on a perilous/dangerous back-way journey to Europe

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The Wednesday 9th December 2020 publication, of the widely-read The Standard Newspaper, contained an eye – catching article titled: – “3 Senegalese fathers sentenced after pushing sons to migrate to Europe.” The term: “Migrate” means, moving from one country to another. and “Immigrate” means: moving from an outside Country, into another Country, to permanently stay there. The Monday 14th December 2020 publication of The Standard, contained an article in page 2, authored by Omar Bah, and titled: “Immigration investigates man who allegedly obtained passports to get migrants deported.” This is linguistically wrong, because “migrants”, are Gambian citizens, who travel out of The Gambia to another country. Therefore, “migrants” in this context, should have been “immigrants.”

Paragraph 1 of the article reads: “A Senegalese court on Tuesday, handed down jail terms to three fathers, accused of pushing their sons to migrate to Europe by sea, sending them on a trip, that left one of them dead, a defence lawyer said.”

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Under English Law, the two appropriate criminal charges, that may be rightly preferred, against these three foolish Senegalese fathers are: COUNT 1: Conspiracy to commit a crime, COUNT 2: “Inciting their three sons, to embark on a perilous / dangerous back-way trip to Europe.” In English Law, there are 3 “Inchoate” or “Incomplete” criminal offences namely: (1) Incitement, which is allegedly committed, when one urges another to commit a Crime, (2) Conspiracy, which is allegedly committed, when two or more people, agree to commit a Crime. There must be “concensus ad idem” (Latin: ie a meeting or a convergence of minds), among the alleged conspirators, and (3) Attempt, which is allegedly committed, when a culprit has taken concrete steps, that are more than being preparatory, towards the commission of the full Offence in question.  A “locus classicus” (Latin: ie best known) British Criminal Law Case for “Attempt” is: R Vs Gullefer (1990). In this criminal case, the accused, Mr. Gullefer, was convicted of “Attempted Theft”, in the court of first instance. When he rightly appealed on the legal ground, that his acts were not sufficiently proximate, to the completed Offence of Theft, to be capable of comprising “an attempt to commit theft”, the Appellate Court, rightly quashed his conviction, and he became a free man, with a clean slate.

Paragraph 2 of the inspirational article reads: “In a high-profile case, the trio were given two-year jail terms, 23 months of which were suspended, on a charge of: “Placing the lives of others in danger”, Attorney Assane Dioma Ndiaye, said. ”In both English and French Law, “A Suspended or Deferred Sentence” means, technically there is ample evidence before a Court of competent jurisdiction, that the accused is indeed guilty of the criminal charge/offence, which has been preferred by either the state or a private prosecutor, against him or her, but since a court has the Judicial discretion, “To temper Justice with mercy”, it may rightly hand down on the convict, “a suspended or deferred sentence.” This in Criminal Law, simply means, that the sentence or punishment, which has been legally prescribed for a certain charge/criminal offence, will not be handed down by the court on the convict immediately. On the contrary, it will be suspended or deferred, until sometime in the near future, and if in the interim, the convict has not allegedly committed another crime, then he / she will not have any Criminal liability. But if in the interim, he/she allegedly commits another crime, then he/she will be punished cumulatively, for both the previous Offence, and the latter one. This will clearly, not be any violation, of what is called in The Law Of Evidence: “ The Rules Against Double Jeopardy”, that are encapsulated in these two famous Latin maxims, namely :- (1) “ Nemo Debet Bis  Puniri, Pro  Uno Delicto”  (ie No person, must be punished twice, for the same Offence) and (2) “Nemo Debet Bis Vexari, Pro  Eadem Causa” (ie  No person, must be tried twice, for the same matter).

This Senegalese charge/criminal offence, is very similar to the criminal offence, encapsulated in Section 225 of The Gambia Criminal Code, which creates The Criminal Offence of :- “ Conveying persons by  water for hire in unsafe, overloaded vessel”, and it reads:- “ A person who knowingly or negligently conveys or causes to be conveyed for hire, a person by water, in any vessel, when that vessel is in such a state or so loaded, as to be unsafe, commits a misdemeanor.”  This criminal offence, is a very appropriate one, for so-called “connection men”, who accept money from simple-minded people, to transport them to Europe, via the notorious “ Back-way to Europe”, in old, rickety and poorly constructed boats or vessels.

In 2002, “M.V. Le Joola”, officially named after the Jola people of Southern Senegal and a Senegalese Government – Owned ferry, unfortunately capsized off the Coast of the political and resource history of Senegambia. This was one of the worst maritime disasters in modern times, which claimed many dear lives, more than the sinking of “The Titanic” in 1912, in which more than 1,863 people died. R.M.S. Titanic, was a British passenger liner, operated by The White Star Line, that sank in The Atlantic Ocean, (the terminus of the River Gambia, a valuable National resource of The Gambia, and an International watercourse), on 15th April 1912, after striking an Iceburg, during her maiden or prototype voyage, from Southampton to New York City. Rescue Ships or Save Our Lives Ships, quickly sailed from neighboring The Gambia’s territorial waters on Saturday, looking for survivors, in the spirit of Senegambian Solidarity and Co-operation, which is indeed a stepping stone, for Continental Unity in Africa. At midnight 5th /6th March 1957, The Gold Coast (now Ghana), became the first African British Colony, to attain Political Independence from Britain, and in his powerful Independence Speech, the late His Excellency DR Kwame Nkrumah (Osagefo), said: “…. The Independence of Ghana is meaningless, unless it is linked up, with the total liberation, of the whole of The African Continent.”  

Paragraph 4 of the article reads: “The sons were with other migrants, who boarded a canoe to make the crossing from Senegal to Spain’s Canary Islands. The first step in a plan to reach Continental Europe. But one of them, a lad about 15, nick-named Dodou, felt ill and died during the trip.” As far as Chapter 4 of The Gambia’s 1997 Constitution, which is titled: “Protection of Fundamental Human Rights and Freedoms”, is concerned, the appropriate fundamental Human Rights, which one of the 3 Senegalese fathers has violated is: “The Right To Life”, which is expressly protected by Section 18 of the said Constitution, by an Entrenched Clause. I am conceptually and evidentially certain, that the current Senegalese Constitution, also has an identical provision. Most of these fundamental Human Rights, emanated from The United Nations 1948 Universal Declaration of Human Rights, which was adopted in Paris on 10th December 1948, by the U.N. General Assembly, and rightly  Universally regarded as :- “ The mother of all human rights Conventions”, and of course both The Gambia and neighboring Senegal,  have signed and ratified, this very important Convention, therefore they cannot now claim the Contract Law Defence of :- “ Non Est Factum” (Latin:- ie not my deed). This is why today every 10th of December, is Universally celebrated as: “International Human Rights Day.” The National Human Rights Commission (N.H.R.C.), under the able Chairmanship of my learned friend, Mr Emmanuel Joof, must be warmly congratulated, for successfully organizing the finals of the prototype Sir Dawda Kairaba Jawara Human Rights Moot Court Competition, at The Sir Dawda Kairaba Jawara Conference Hall, within the O.I.C. Secretariat, in collaboration with the Faculty of Law of the University of The Gambia and the U.N.D.P., in observance of and celebrating “International Human Rights Day”, and I was privileged to be present, as a Founder Adjunct U.T.G. Law Lecturer, from 2007 to date. The Keynote Speech, was excellently delivered, by my learned friend, the Honourable Attorney General & Minister of Justice, Mr Dawda Jallow.   

Part of paragraph 6 of the article reads: “…… Dodou’s fate triggered uproar in Senegal, prompting anguished debate about poverty, parental pressure and the allure of life in wealthy, but distant Europe.”

Paragraph 7 of the article reads: “His father had paid 250,000 C.F.A. Francs ($460/380 Euros) to a smuggler, who was to take the boy to Spain. His destination after that was Italy, where he hoped to sign up for a football training Academy.” “Dum spiro spero” (Latin: ie while I live/ breathe, I hope). Unfortunately, the cherished hope of the late young Dodou, never materialized. “Man proposes, and God disposes”, as the adage goes. Under English Law, a minor (ie a person under 18 years of age), generally lacks legal capacity to sign a Contract, and secondly, illegal / immoral contracts are not legally enforceable, because they are: “Contra Bonos Mores” (Latin: ie contrary to good morals). The leading Contract Case for this legal principle in English Law is: PERCY Vs BROOKS (1919). Therefore, the late Dodou’s father, from the English Law perspective, will not be able to hire a Lawyer, to legally recover the aforesaid amount of money, from the said smuggler. “He who comes to Equity, must come with clean hands”, as the Equity maxim goes. Also under English law “Minors are legally bound where a Contract supplies them with “necessaries”, or goods and services, which are deemed necessary or beneficial to them ….. The definition of “ necessaries”, includes obvious purchases, such as food and clothes, but also services or goods, which are in furtherance of education or apprenticeship.” When a minor enters “a Contract of Necessaries”, this special contract, is not legally binding on him/her, when he/she is a minor. But upon attaining the age of maturity (ie 18 years and above ),  he/she can ratify that Contract,  which thereafter, will become legally binding on him/her. A leading Contact Case for “a contract of necessaries” in English Law is: NASH Vs INMAN (1908).

Two main legal exceptions to “contracts of necessaries”

 (1) GUARDIAN AD LITEM: A “guardian” is a person who acts to protect or help someone. “Ad litem” means “for the lawsuit.” “Guardian ad Litem” otherwise calls “Child Advocate”, is someone appointed by a Court, to represent “the best interest of the child”, in proceedings in a Family Court, and he/she is appointed in contested custody and visitation cases, name changes, adoptions, abuse cases, neglect cases, termination of parental right cases, for “Contracts of Necessaries” etc.

(2)TRUSTEE: Google defines “Trustee” as: “An individual person, or member of a Board given control or powers of administration of  property in trust, with a legal obligation to administer it solely, for the purposes specified.” A “Trustee” can also help a minor, in drafting “a Contract of necessaries.” The leading English Equity and Trust Case, for a trust is: KNIGHT Vs KNIGHT (1840), which laid down “the three certainties”, that must be fully complied with, before a Court of competent jurisdiction, can legally enforce a proposed trust (ie (1) certainty of intention, (2) certainty of subject matter, and (3) certainty of beneficiary/ beneficiaries).

Paragraph 8 of the article reads: “A source close to the investigation said Doudou “died after having problems of eating” during the trip.

 Paragraph 9 of the article reads: “further details are unclear as according to local media his body was tipped overboard after he died.” We are not told, who tipped the corpse of young Doudou overboard into the sea, in order to dispose of it, to prevent it from decomposing and polluting the canoe. Depending on how far they were from the nearest land, perhaps they could have waited patiently until they reached that land, so that a postmortem would be conducted on the corpse by a pathologist, so that the full medical causes of Dodou’s death, would be discovered, by the Senegalese investigating authorities. Those who tipped the corpse of Dodou overboard the canoe, can rightly be Charged, with the Criminal Offence of: “Destroying Evidence”, that is found in The Gambia Criminal Code, The Senegalese Criminal Code, may have a similar or an identical provision.

Paragraph 10 of the article reads: “the children of the two other fathers, survived the attempted crossing and returned home …”. The very fact that, these two sons survived the abortive perilous back-way journey by sea to Europe, this should be an important mitigating factor, which the Presiding Judge or Magistrate, should have taken “Judicial Notice” of, and consequently, hand down a lenient sentence on the accused fathers, of these two survivors.

 Paragraph 11 of the article reads: “I took him to see the marabouts (witch doctors), so that they would pray for him. If I knew that he wasn’t going to come back I would never have taken the risk, he told the Court. I am here before you today, but my spirit has left me.” This is a statement of the guilty father of deceased Dodou, to the Senegalese Court. The marabouts (witch doctors), who prayed for the late Doudou, to have a safe trip to Europe, should all be arrested by the police, and rightly charged: COUNT(1) “For inciting Dodou’s father, to force his late son, to embark on this perilous back – way journey to Europe.” The father cannot hire a lawyer, to take the marabouts to Court, to recover the money he paid to them (marabout fees), because this was an illegal/ immoral contract, and therefore it was not legally enforceable, as clearly explained earlier. COUNT(2): The aforesaid marabouts,  can also be rightly Charged, for “ obtaining money by false pretences.”

Paragraph 12 of the article reads: “The Prosecution had called for two- years terms against the three, while The Defence, had urged their acquittal”. The submission of The Prosecution in Court, was a valid one, it was indeed even-handed Justice”, (William Shakespeare), from his masterpiece Play/Tragedy titled: “Macbeth.” But for the submission of The Defence, this was a very unjust and unreasonable one, if The Presiding Judge / Magistrate had accepted it, this Judgement, will never be a deterrent, to other parents in the future, who will like to follow the footsteps, of these three fathers, and it will also clearly be, “a miscarriage / travesty of Justice.”

Paragraph 13 of the article reads: “The Canaries lie more than 100 Kilometers (62 miles), from the Coast of Africa, at their closest point, and many boats – big canoes also called pirogues, are overcrowded, under powered and in poor shape.” This is a perennial problem in Africa, which has increased the statistics of maritime disasters which have claimed so many dear lives. The Port Authorities of African Member States of the African Union (A.U.), must impose a stiff penalty, for all canoe and boat owners of overcrowded vessels. This will protect dear lives, and reduce the unfortunate incidences of maritime disasters.

Paragraph 14 of the article reads: “Over 500 people have died this year, mostly in October and November, according to the U.N.’s International Office for Migration (I.O.M.), compared to 210 fatalities for the whole year.”

Finally, Paragraph 15 of the article reads: “The pressure to migrate is especially strong among fishing communities. Coastal Villages in Senegal, have been badly hit, by dwindling catches, allegedly inflicted, by foreign factory ships, and by the impact of the Corona Virus Pandemic.”

Conclusion

 The alarming rate of increase, of maritime disasters, should be urgently checked by all Member States of the African Union (A.U.), so that many dear lives would be saved, for the multiple sectors of our national development. On 31st July 2019, the European Union and The Gambia signed a new, 6-year fishing contract, which will bring about €275 000 (ie millions of Dalasis), into The Gambia Government coffers, which The Government of His Excellency President Adama Barrow, will use for the betterment of the livelihood of all Gambians. I immediately sent a congratulatory text from my Smart Phone, to Honourable Mr. James Furmus Gomez, Minister of Fisheries & Water Resources, and Lord Mayor Emeritus of the Banjul City, and he immediately replied to my text, and he thanked me profusely, for my solidarity message and good wishes for his Ministry.

The end

P.S: This online environmental and natural resources law lecture, was delivered by DR. Henry D.R. Carrol (M.R.G.), to senior University of The Gambia L.L.B. degree law students, on Thursday 17th December 2020. DR. Carrol is a fellow of the Hague Academy of International Law, and he holds a Master of Laws (L.L.M) Degree in Environmental Law & Management, from the University of Wales, Aberystwyth, U.K., the Royal Alma Mater of His Royal Highness, Prince Charles, The Prince of Wales & The Heir Presumptive/Apparent of the British Throne. 

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