By Yusef Taylor, @FlexDan_YT
The Gambia’s National Assembly is scheduled to consider two Bills today relating to the Transitional Justice process after the President issued a certificate of emergency for an extraordinary session to be convened starting today 1st November 2023.
Bill Description, Objects and Reasons
One of the two Bills which is expected to be considered by Parliament today is the Victims Reparations Bill 2023 which is “AN ACT to establish a fund for the provision of reparations for Victims of the human rights abuses and violations during the period July 1994 and January 2017; to establish a Commission to manage the Fund; and for connected matters”.
According to the Objects and Reasons of the Bill it “seeks to establish a reparations commission whose responsibility is to review reparations paid out by the TRRC and make necessary adjustments; receive, evaluate, process and make a determination as to new victims not identified by TRRC; create and maintain an up-to-date database of victims; and, develop and publish guidelines and procedures for the granting of reparations”.
“This Bill also seeks to establish a Victims Fund which shall consist of, among other sources, monies generated from some of the proceeds of the sale of ex-President Jammeh’s properties. The Bill also seeks to create a point system that will be used by the Commissioners to determine the reparation payable to victims”.
Given that the Bill seeks to ensure victims are compensated, a review of the Bill was conducted with attention to some of the specific clauses and how they can promote the objective of paying victims Reparations. Reparations should not be viewed only in monetary terms, some victims view justice as a form of reparations and in other instances, community-based reparations may be preferable such as building a youth centre or other community-based collective reparations.
Over 1,000 Victims to Receive D205.8 Million
It’s important to note that the Truth Reconciliation and Reparations Commission (TRRC) is a now-defunct commission which investigated the human rights violations of the previous regime of former President Yahya A J J Jammeh. The Commission submitted its report indicating that the former President and his accomplices are responsible for gross human rights violations including killings and enforced disappearances. At the end of the TRRC, the Commission recommended that victims be paid a grand total of over D205.8 million to over 1,000 victims. The Commission started by paying of D13 million in interim payments and D37 million to Victims as Reparations proper at the end of the Commission.
It’s important to note that since 2021 Reparations have not been forthcoming to the victims and a number of them have died. In 2022 the Budget allocated over D163 million to the victims and in 2023 the Budget allocated some D75 million to victims, however, up to date victims have not received a penny from the state in reparations. Since 2018 when the former Minister for Justice Hon Abubacarr Tambedu oversaw the donation of D50 million to the Victims Fund, nothing has been forthcoming from the government.
New Victims and Additional Reparations
There has been an ongoing debate on the need for a commission to pay reparations because the cost of a Commission will certainly consume funds which could have been channelled directly to victims. However, there has been a counterargument that Reparations should be addressed holistically, with the Minister for Justice noting that some of the Reparations are not sufficient and that they could be increased. In addition to that some victims may be identified after the conclusion of the TRRC and could be eligible for reparations.
Part VII of the Bill gives the Commission the mandate to pay off all outstanding victims and other victims who have previously not been identified by the TRRC. Clause 11 subsection 2 of the Bill stipulates that the Commission will be established for a period of 5 years and may be extended for another five-year period meaning that it could operate for a maximum of 10 years.
Composition of the Commission and Independence
Part III of the Bill focuses on the Composition of the Commission which consists of “seven members, four of whom shall be women and (Commissioners) shall possess” some specific qualification including being “of known probity, competence and integrity”. In addition, Commissioners must “have a deep understanding and knowledge of human rights violations committed during the regime of former President Yahya A. J. J. Jammeh; and must be a Gambian Citizen”. There are some additional qualifications for the Chairperson of the Commission.
Clause 13 stipulates how Commissioners are to be appointed starting with a list of names drafted by a Panel after which the names are submitted to the President through the Minister for Justice for appointment. The panel consists of a representative of “the Public Service Commission, The Association of Non-Governmental Organisations, The Gambia Bar Association, the Bankers Association of The Gambia, and the Medical and Dental Council”. In addition to this “a representative of the Government” and “two members from the umbrella body for victims”. However, in the case that there is no umbrella body “the Minister may appoint two victims”. The President is responsible for designating “the Chairperson and Vice-Chairperson from amongst the individuals appointed as members of the Commission”.
Some Thorny Aspects of The Bill
Clause 57 of the Bill mandates the Ministry of Justice to perform oversight of the Commission. Perhaps for administrative purposes, this may suffice, in that the Ministry of Justice will be responsible for their administration and other aspects, however, the National Human Rights Commission (NHRC) is currently tasked to monitor the TRRC’s implementation and the National Assembly’s Human Rights Parliamentary Committee are all other alternatives to perform the function of oversight on the Commission.
In fact, under section 10 Annual Report, the Bill recognises the role of the National Assembly by recommending that “the Commission shall prepare and submit to the National Assembly a comprehensive report of the fund utilisation” — “within three months of each calendar year”.
With regards to reporting to the public, the Bill stipulates that “the Commission shall make public an anonymised version of the report”. In addition to this, the Bill stipulates that “the Commission shall regulate its own procedure, provided that its rules of procedure shall be made public”. With regards to the Final Audit, clause 55 of the Bill demands that “the National Assembly shall make the report public within 1 month of receiving it”.
After perusing the Bill, there appears to be no requirement for the Commission to report to the public via a press conference on an annual basis. In addition to this, the Bill empowering the Commission with a Carte Blanche to determine and regulate its own procedure may be problematic. An alternative to this could be for the Commission to consult or at least notify another oversight institution of its procedures and changes to its procedures.
It’s important to ensure the Commission’s Independence to avoid it being micromanaged as stipulated in clause 14, however, some balance needs to be made between giving the Commission full independence while at least notifying another competent authority of its rules of procedures. This way the Commission will be reporting on an annual basis to the National Assembly while they can make their own rules knowing that they must submit them to another authority. This will avoid the situation where ad hoc rules are being made without any basis.