By Patience Loum
Six months after the submission of the Truth Reconciliation and Reparations Commission’s (TRRC) Final Report, the Gambia Government published its White Paper highlighting three options it would pursue to prosecute perpetrators that bear the most responsibility for human rights violations committed under the two-decade-long regime of President Yahya Jammeh.
Former President Jammeh seized power in 1994 from the country’s first President, Sir Dawda Jawara whose reign lasted for over 30 years. Current President Adama Barrow campaigned on a promise to set up a Truth and Reconciliation Commission and upon his defeat of former President Jammeh in the 2016 polls, the government established the TRRC to investigate the human rights violations that took place under President Jammeh between July 1994 and January 2017.
According to the TRRC Report, former President Jammeh and his co-perpetrators bear the most responsibility for unlawful killings, sexual violence, torture, enforced disappearances, and persecution including through arbitrary arrests and unlawful detentions.
The TRRC report highlights how President Jammeh’s regime and his co-perpetrators violated the human rights of Gambians and non-Gambians alike, resulting in 1,010 victims. In one mass killing that occurred in 2005, the former President is alleged to have ordered the killing of some 44 West African migrants from Ghana, Nigeria, Senegal, Ivory Coast and Togo.
After losing Presidential Elections in December 2016, former President Jammeh fled to Equatorial Guinea where he is currently in exile. Equatorial Guinea is not a signatory to the Rome Statute which complicates his potential extradition to face trial before the International Criminal Court as set out in option D below. From a review of the White Paper, the government has stated their preference on the TRRC options to pursue prosecution.
This article presents the various options recommended by the TRRC for Prosecution and highlights which options the Government is considering as most suitable for the prosecution of those who bear the most responsibility for human rights violations perpetrated under the Jammeh regime.
TRRC Options Recommended for Prosecution
In Volume (1) Compendium (Part B) of the TRRC report titled ‘Recommendations for Prosecution’, the TRRC recommended four potential avenues for prosecution under section (6) of the report which focuses on Jurisdiction and admissibility. Below is a short summary of the four options recommended by the TRRC.
Option A – Using Gambian laws to prosecute those who bear the most responsibility for human rights violations under Jammeh’s regime. However, some of the crimes that the TRRC Recommended for prosecution like torture may be challenging to pursue under the current Gambian Legislative Framework.
Option B – Prosecution in the Gambia with an established internationalized tribunal which will allow the participation of Gambians and non-Gambians alike. However, there are security concerns around prosecuting former President Jammeh in The Gambia.
Option C – Prosecution in neighbouring countries similar to option B such as in the case of Hissène Habre before the Extraordinary African Chambers in Senegal. Possible countries for prosecution include Senegal, Ghana, and Sierra Leone.
Option D – Prosecution at the International Criminal Court (ICC) for crimes against humanity. However, there are a number of challenges with this option such as the admissibility of the case before the ICC would require a high threshold for crimes against humanity and the fact that the ICC’s Jurisdiction starts from June 2002 meaning that this would exclude serious crimes that occurred from 1994 to June 2002.
Government’s Preferred Option for Prosecution
In the White Paper issued on 25th May 2022 the government presented a synopsis of its preferred mode of prosecution which appears to be a mixture of A, B and C with certain variations. Paragraph 19 of the Government’s TRRC White Paper states that “the Government is in the process of setting up a Special Prosecutor’s Office under the Attorney General’s Chambers and Ministry of Justice with a mandate to carry out investigations and prosecutions as laid out in this White Paper.”
Paragraph 20 adds that “the Government intends to create a special judicial framework within our domestic Court system for the prosecution of perpetrators of Human Rights abuses and violations. Legislative changes will be effected to give it jurisdiction over the offence of torture as well as over international crimes. The Court shall be located within The Gambia with the option of holding sittings in other countries based on the exigencies of each case.”
Our enquiries with the Ministry of Justice Legal Team revealed that prosecutions will be carried out under Gambian laws and before Gambian Judges or a mix of Gambian and International Judges depending on the nature of the case. Our reporter was also informed that there are plans to hold court sittings in other countries, thereby balancing the need to prioritize local ownership and victim participation with security concerns and witness protection requirements.
During the press conference held on the same day of the Launch of the White Paper, the Minister of Justice Hon Dawda Jallow told members of the press that the Government will consider entering into a bilateral agreement with a regional body such as ECOWAS for the creation of a special judicial framework. This will make it possible for the Gambia to utilize international law in the prosecution of human rights violations, and overcome the hurdle of prosecuting offences such as torture which is not currently criminalized in The Gambia
Based on paragraphs 19 and 20 and comments emanating from the Ministry of Justice, it appears that the government will be pursuing the hybrid route. A mix of the domestic (A) and international option (C), after implementing Legal Reforms to be able to pursue cases on torture and other violations which are currently not in the Gambia’s Legal Framework.
According to the TRRC Report, Domestic Options A and B are similar in that they would be done in the Gambia with the difference being the use of the Local Legal Framework for Option A and the use of an Internationalised Tribunal for Option B. The pros and cons and are listed below.
Paragraph 20 of the White Paper notes that cases may not only be pursued in the Gambia but that there would be “the option of holding sittings in other countries based on the exigencies of each case”. This appears very similar to option C which involves prosecuting perpetrators in other countries with an Internationalized Tribunal using Gambian laws.
According to the TRRC Report, Option C will see Prosecutions held abroad in neighbouring countries with an internationalized tribunal in countries like Senegal, Ghana and Sierra Leone. Here are some of the pros and cons of this option as indicated in the TRRC Report.
Speaking to Lawyers from the Ministry of Justice it was brought to our attention that the Supreme Court in the case of The State v Yankuba Touray affirmed that International Law was applicable in The Gambia. As such, international Conventions such as the Convention against Torture to which The Gambia is a signatory will be applicable in The Gambia. However, the only downside of this is that the Convention falls short of prescribing penalties for offenders. As highlighted above, however, collaboration with regional organizations such as ECOWAs could pave the way for the application of International Criminal Law.
This article is supported by the International Center for Transitional Justice (ICTJ).