By Janet Sankale in Nairobi, Kenya
The campaign to hold to account former Gambian president Yahya Jammeh and others adversely mentioned by the country’s truth commission is gathering pace, with human rights defenders and victims’ organisations pressing the government to make good its promise to prosecute them contained in its own white paper.
The Campaign to Bring Yahya Jammeh and his Accomplices to Justice, more commonly known as #Jammeh2Justice, voiced the resolve of the stakeholders, asking the government to “…take concrete steps to bring former president Yahya Jammeh and his alleged accomplices to justice”.
Although the Government White Paper on the Report of the Truth, Justice and Reparations Commission (TRRC) was greeted with almost universal acclaim when it was released on May 25, 2022, it does not seem to have offered assurance of the government’s will to enforce accountability. And even with the fact that it accepted all but two of the commission’s 265 recommendations, much to the relief of many Gambians who had been anxiously waiting to see its stand on the TRRC proposals, the people are still harbouring a healthy dose of scepticism about the government’s commitment, and are prepared to continue pressing for justice and accountability.
“We will see whether our government is serious about the transitional justice arrangements it put in place or if it was just playing politics,” was the reaction of Essa Faal, the TRRC’s lead counsel.
But Fatoumatta Sandeng, the founder and president of the Solo Sandeng Foundation, and spokesperson for the #Jammeh2Justice campaign, did not mince her words. “We will do everything [possible] to hold them to account if they fail to do what is right. There has to be justice,” she was quoted as saying. Her father, Solo Sandeng, was tortured and killed by state agents in 2016.
The suspicion has partly been caused by apprehension about President Adama Barrow’s commitment to his promise to ensure justice for victims and accountability for perpetrators. In the months preceding and following the December 2021 elections, the president courted the political party and supporters of his predecessor to help him win a second term in office, even offering jobs to some of Jammeh’s staunchest backers. Naturally, there have been questions whether he is willing to prosecute his newfound partner.
Now that the initial chorus of elation and optimism that greeted the release of the white paper has cooled down considerably and stakeholders have had time to digest the report, they are concerned about the contradictions between the government’s promises and its actions. Victims’ organisations and human rights advocates want the government to demonstrate its commitment to fulfilling its promises by starting the process of bringing back Jammeh from exile in Equatorial Guinea to face trial for crimes he is alleged to have committed.
The fact that Barrow visited that country soon after the release of the white paper to attend an African Union summit but failed to raise the matter of extraditing Jammeh with his host, President Teodoro Obiang Nguema Mbasogo, has served to reinforce their scepticism.
“The issue of Yahya Jammeh was not discussed. However, President Barrow was very grateful to Obiang. He thanked him for assisting The Gambia when we needed it most. During the impasse, President Obiang was the person that was willing to accept Jammeh,” the government spokesperson, Ebrima G. Sankareh, told BBC Focus on Africa.
“We had hoped that the government would provide greater clarity and detail on the judicial framework it intends to create for those prosecutions,” said a press statement released by #Jammeh2Justice at a press conference held at the Sir Dawda Kairaba Jawara Conference Hall in Bijilo on June 8, 2022. The campaign, made up of victims of the former regime and Gambian and international activists, had held a two-day meeting.
While releasing the white paper, Justice Minister Dawda A. Jallow said the government is in the process of setting up a special prosecutor’s office under the Attorney General’s Chambers and Ministry of Justice to carry out investigations and prosecutions.
“The special prosecutor’s office shall be aided by a special investigative unit under the Ministry of Justice, which will consist of local and international experts mandated to carry out criminal investigations geared towards the prosecution of those who bear the greatest responsibility for the human rights abuses and violations more specifically laid out in the white paper,” he said.
He did not specify when this will be done or give details of the offices planned.
The only indication that something might be happening behind the scenes came from Sankareh who, while answering questions about Barrow’s visit to Equatorial Guinea, told the AP news agency that the government had contracted Gambian and foreign legal experts to prepare a report outlining the next steps for a trial
“The report will establish the concept of a Gambian hybrid court that will have both national and international jurisdiction for the subsequent prosecution of Yahya Jammeh and his accomplices,” he said.
He hinted at the possibility of the government seeking the support of the Economic Community of West African States (Ecowas), through Ghana, to secure Jammeh’s extradition.
Minister Jallow said the government would create the necessary judicial framework “within our domestic court system” to try the perpetrators.
“Legislative changes will be effected to give it [special court] jurisdiction over the offence of torture as well as over international crimes,” he said, adding that the court shall be located in The Gambia with the option of holding sittings in other countries “based on the exigencies of each case”.
“President Jammeh will face justice for the atrocities that he committed in this country,” he declared.
However, there is scepticism about the viability of the model the government has proposed.
International human rights lawyer and activist Reed Brody, who is also a member of the #Jammeh2Justice campaign, is convinced that the crimes committed under Jammeh’s rule cannot be tried in The Gambia.
“A domestic court cannot have jurisdiction over crimes that are not yet in the Gambian code, so if laws as they should be are adopted in The Gambia to criminalise torture, crimes against humanity, a domestic court cannot have retroactive jurisdiction over those crimes,” he said at the press conference.
He gave the example of an Ecowas Court of Justice decision in the case of former Chadian president Hissène Habré which said that in order to prosecute crimes retroactively, there needs to be an internationalised tribunal.“
He supported the TRRC’s recommendation of such a court to try Jammeh in another country, not just for justice for retroactive crimes but also for those he is said to have given orders to be committed.
“International law provides that somebody is responsible if their subordinate commits crimes and they do nothing to prevent, stop, or punish those crimes,” Brody explained.
The TRRC also expressed concern about the shortcomings of trying Jammeh in The Gambia. “These include lack of capacity not just from among judicial staff, but also from the necessary support staff as well as lack of the necessary infrastructure and financial constraints,” the commission said.
Ayesha Jammeh, a niece of former president Jammeh, is not convinced that the government has the political will to implement the recommendations because it has made no effort to try to bring Jammeh back home to be prosecuted. The program officer at the Gambia Centre for Victims of Human Rights Violations whose father, Haruna Jammeh, and aunt Masie Jammeh were killed by the Junglers, cautioned victims to be wary of the government’s promises.
In a press statement issued shortly after the release of the white paper, the Gambia Centre for Victims of Human Rights Violations welcomed the government’s acceptance of the TRRC recommendations and urged it to begin their implementation.
#Jammeh2Justice members supported the idea of involving Ecowas in the matter to try to get Jammeh to stand trial. They cited the case of the more than 50 West Africans allegedly killed by Jammeh’s Junglers.
The TRRC has accused Jammeh of enforced disappearance, killing and torture of opposition members and journalists, the shooting of peaceful demonstrators, the murder of about 59 West African migrants, and “witch hunt campaigns” in which hundreds of people were arbitrarily detained and many died as a result.
The commission also found that Jammeh raped and sexually assaulted women, and forced HIV-positive Gambians to give up their medicine and enrol in his sham treatment programme that claimed to offer a cure.