The story of Bakary Cham

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In the by-now creased photocopy of a photograph, Bakary Cham is wearing a dark blazer over a white shirt. Standing to his right are two other young men. All three stare into the camera, open-faced and serious, hands at their sides, in front of a wall of simple shelves full of binders labelled in marker on their spines. They are in the headmaster’s office at the Wonder Years Centre of Excellence, a school and social services centre in southern Gambia.

In blue ink Cham has written the words ‘Myself, Bakary Cham’ like a tie down the front of his starched button-down shirt.

Back in April 2017, a young man in Palermo, Sicily, had dictated a letter to Cham, his former teacher, who was now in prison. He said: ‘This is Musa. I am in Palermo and I am thinking of you. I am praying every day for you to leave, because what they are doing to you is too much. I am not forgetting you.’

Cham is a teacher from a rural village in the Gambia, the small West African nation and former British colony which recently cast off a decades-long dictatorship. He was convicted of organising and facilitating the passage of migrants from Libya to Italy, becoming one of the thousands of boat operators in Italian prisons accused of smuggling offences.

Critics say these prosecutions do little to combat smuggling networks: the actual smugglers remain in Libya, and regular migrants are coerced into operating the boats, often at gunpoint, and then criminalised. One Palermo judge has started to dismiss these cases due to the ‘state of necessity’ that boat operators find themselves in. For his part, Cham denies operating a boat at all and believes himself to be the victim of a highly questionable legal process, fraught with language issues, lack of evidence and improper legal counsel.

From near the crease where Italy’s stiletto meets its sole, Cham sent a reply to his former pupil.

In his meticulous, teacherly script, he listed the names, emails, phone numbers and addresses for his lawyer, the Consul-General of the Gambia in Italy, an Italian journalist interested in his case, and a man in Holland named Albert Cohen, his ‘Dutch dad’. The two met when Cohen was on vacation in the Gambia with his family many years ago; Cohen has since sponsored Cham’s schooling.

In a letter to Cohen, Cham began: ‘This is how the story started. I left my home on the 8th September 2015.’ He described passing through Senegal, Mali, Burkina Faso, Niger, the Sahara desert, Libya and finally the Mediterranean, to come to Italy. ‘I sacrifice my life to come to Europe to find a better future. My main purpose is to come in Europe to study and work to change my family situation. I didn’t come here to fight or kill anyone.’ He says he suffered throughout his journey and ‘still now I’m suffering the most for something I don’t know nothing about.’

On the night Cham left Libya, departing the night of 17 October 2015, he said there were four rubber dinghies. While they were waiting on the beach, it was so cold that he and others fell asleep. ‘Suddenly, the Arabs came and everybody stood up to make line to the boats.’ He said the boats left the shore one by one, about 40 minutes apart.

Once at sea, a wooden beam snapped in one of the overcrowded dinghies, the one Cham says he was on, leaving eight people dead. The passengers were rescued by Médecins Sans Frontières and then transferred onto a larger rescue ship called Rio Segura (Safe River). Cham described having his photo taken with a sheet of white paper. He was assigned the number 44. ‘All the people with white papers show that they are from the same boat. When they transfer us to Rio Segura in the evening, that’s where we meet other immigrants with different colours of papers on their hands. The colours of the papers were white, green, yellow and red. We were all happy and thank God for saving our lives.’

When they reached Taranto, Italy, on 20 October, there were 633 immigrants on board and eight corpses.

In detention

At the port everyone was put onto buses to travel to different migrant reception centres. For reasons that were unclear to him, Cham was taken off the bus and brought to a small room with four other men. Cham recognised one from his boat who gave him his shirt to sit on when his skin got irritated from the spilled petrol. He thanked him. ‘I greet the rest too but I don’t know any of them.’

They were moved to another small room. Cham’s questions about why they were there went unanswered. Finally, a woman came and told them they were being accused of bringing immigrants to Italy. ‘We told them that we are not the ones,’ he says, ‘but they cannot understand our language.’ Cham and the others were put in police cars and taken to prison.

Cham and another man, Alaji Diouf, from Senegal, were accused of organising and facilitating the passage ‘for reasons of profit’ of the migrants on all four dinghies.

According to the court documents, two siblings from Nigeria had been travelling together but ended up in different boats on the night of the crossing. Juliet Chimyene Duru was one of those who died, along with six other women and one man. Her brother, Blessing Favour Chimezie Duru, accused Cham of operating the boat he was on, and Diouf of steering a different boat. He says that the four boats left the shore at 11pm at night, simultaneously, and that he was able to keep his eyes on the boat operators, not only of his own boat, but also of the others.

Duru’s was the only testimony.

Cham was assigned a public defence lawyer who did not speak English, leading to immediate communication problems about the facts of the case.

Serena Romano, a criminal and immigration attorney with the University of Palermo’s Human Rights Legal Clinic, says that one of the primary issues in these cases is language. She says there are issues from the get-go when testimony is collected at the ship landings: ‘The declaration of a witness against a boat operator is a weak one because of issues with translation, but it is admitted as evidence in the trial.’

‘You have to deconstruct it,’ she continued, ‘and make judges understand how severe the communication problem really is.’ Romano says that the European Court of Human Rights has put out a very strong decision against the use of these ‘first declarations’, but prosecutors argue that they must be used anyway because the testimony is an ‘act that cannot be repeated’ – an argument usually invoked when a witness has died, not when they’ve moved to another city. Furthermore, witnesses like Duru may be incentivised to offer testimonies because the police offer them permits to remain while reminding them that they too are under investigation for ‘illegal entry.’ Romano says she observed a case in the city of Siracusa where the witness was offered humanitarian status in exchange for collaboration.

Another challenge is that defence lawyers cannot directly collect evidence from outside of Italy, despite the fact that witnesses may have moved on to other countries. Judges too, may have little experience and act prejudicially against immigrant defendants. Romano says these cases should not be tried in Italy at all: ‘All of the actors are in Libya, not in Italy. So the way the law works is wrong. This is an international crime…you cannot fight it through national means.’

First trial

In December 2016, Cham and Diouf went to their first trial. They swore on the Quran and testified. The records show that Diouf asked for a Wolof interpreter because he didn’t speak French well, but ended up giving his testimony in French anyway because no Wolof interpreter was available. Cham affirmed his innocence in English – he said he was a teacher, and doesn’t know how to operate a boat; someone else paid for his journey who he would have to pay back; he travelled crouched over, because they were all told not to look up.

Then came the results: 12 years in prison and a €33,333.34 fine each.

The court sentence says that Duru picked out Cham, Diouf and two others (one who kept the people on the boat in order, another who read the compass) from a series of photographs. Duru says Cham operated the boat he was in. Cham says he was in the boat where the people died (the boat with Duru’s sister), and asked how anyone could recognise a person in the middle of the night on the sea, in a boat a distance away.

Cham and Diouf went to the Appeals Court with the same lawyer in June 2017. Their sentences were reduced to eight years and €12,000 each.

Francesco Cristina, the Honorary Consul-General of the Gambia in Italy, has been following Cham’s case. He says that the outcomes of the case don’t make sense to him. ‘It’s illogical if I think about it. The Tribunal and Appeals Court sentenced Bakary just based on the testimony of one Nigerian man. One testimony is not enough. It’s not enough. But that’s what happened.’

Cristina notes that ‘Bakary did not have a chance to present his own witnesses’ and that there were about 92 other passengers on the same boat. They would have been moved to different regions but could have been traced by using the ‘transfer lists’ kept by local government of all of the landed migrants entering the reception system.

Cham has been transferred to another prison; has taken on a new lawyer and currently awaits a hearing in the Supreme Court. His current lawyer says that this hearing will only look at procedural issues and that no new evidence can be admitted. He says he will focus on whether Duru’s testimony should have been accepted as evidence. If they are successful in demonstrating flaws in the legal procedure, Cham may be eligible for another trial.

In the meantime, he remains in prison: having come to Italy to start a new life and support his family, he has ended up in a cell unable to communicate with the outside world, except for his letters and occasional visits from his lawyer. He writes to Cohen: ‘It’s really driving me crazy, I’m losing my memory here. We are suffering in this prison, only begging and my friend picking cigarettes on the ground to smoke…If the Italians are interested in the truth, this case is finish since from that moment…If they are not interested in the truth is better they send me back to my country, I’m ready to go back than to serve prison for injustice.’

In another photocopy of a photograph enclosed in one of his letters, Cham sits at a desk, the battered keyboard of a heavy laptop visible from the right-hand side of the frame. One of his hands crosses his lap and the other hugs the side of his face. In the cheap high-contrast image, his features blur. You can only see the white of his eyes, his teeth and the shine on the tip of his nose. The paper has been folded into four and the wear of the crease over his dark jacket and skin burns a faded white cross over his heart.

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Originally published at https://mondediplo.com/outsidein/what-justice-for-coerced-migrants on 2018-06-23