By Mustapha K Darboe with The Republic/New Narratives
Gambian lawmakers have passed two legal instruments seeking to establish a special court, a criminal division within the country’s court system, and office of a special prosecutor to try human rights violations under the 22-year rule of former dictator Yahya Jammeh.
The 2019 Truth Commission, established by the government which investigated Jammeh’s human rights violations, accused the former leader of close to 200 unlawful killings, mainly carried out by members of a death squad called the Junglers. The Commission recommended Jammeh to be tried for crimes against humanity. Jammeh has been living in self-imposed exile in Equatorial Guinea since he was voted out of office in 2016.
The Junglers were a unit within the State Guards, an elite team that guards the Gambian presidency, according to the Truth Commission whose findings were published in December 2021.
Gambian authorities hope to persuade Equatorial Guinea and other jurisdictions to extradite Jammeh and others. Two Jammeh lieutenants who have been tried in Europe could also be tried on separate charges in a Gambian court. Authorities in a number of West African countries would like to see Jammeh tried for the murders of 59 West African migrants in Gambia in 2005.
“If the SPO (Special Prosecutor’s Office) believes that there is enough evidence, the SPO can charge Jammeh with crimes against humanity. And file that before the hybrid court and ask the court to issue an international arrest warrant,” said the secretary general of the Gambia Bar Association— Abdoulie Fatty— speaking on the significance of the passing of the two legal instruments.
“And this is not only for Jammeh, the court can issue an arrest warrant against any of the Junglers.”
The exact time for the establishment of the hybrid court is unclear but Ida Persson, a special adviser of the Ministry of Justice on Gambia’s transitional justice programs, said they are already working on setting up a special prosecutor’s office.
“The Government and ECOWAS constituted a joint Technical Committee to develop the legal framework necessary to establish a Special Tribunal for The Gambia. This was inaugurated in February this year and the Committee has met monthly to develop three legal instruments- a statute for the Special Tribunal, a decision for consideration by the ECOWAS Heads of State, and a Cooperation Agreement between ECOWAS Commission and the GOTG,” Persson said.
In January, Gambia’s chief justice appointed two judges to preside over the Special Criminal Division of the High Court.
Since 2016, only two Jammeh-era crimes— the 2016 murder of opposition activist Ebrima Solo Sandeng and 1995 killing of former finance minister Ousman Koro Ceesay— have been tried in Gambia. Yankuba Badgie, a former spy chief, and top leadership of the National Intelligence Agency was sentenced to death for participating in the killing of Sandeng in state custody while Yankuba Touray, a former local government minister, , was also sentenced to death for participating in the killing of Ceesay. Neither prosecutions came about as a result of recommendations by the country’s Truth Commission.
Abdoulie Fatty, the secretary general of the Gambia Bar Association, said the passage of two Acts is a “huge step” towards justice.
“The two Acts are very essential,“ said Fatty. “For the victims, this is a huge commitment and it also shows good political will. It also shows to the international community that Gambia is serious.”
Cost yet to be determined
One of the biggest concerns setting up such special courts, according to Reed Brody, a member of the International Commission of Jurists, is the cost. The special court in Sierra Leone which was initially projected to cost $75 million ended up using close to $300 million.
The Gambia is having a number of issues that could impact the lifespan of the court. Many of the defendants including Jammeh and members of his death squad are in other jurisdictions. Brody said Gambia could employ cost cutting measures such as limiting international staff, carefully limiting the number of cases, and hiring judges only at times when the court is active and hearing cases.
The Gambian authorities have not made a determination yet as to the cost of this exercise. “The Joint Technical Committee is gathering data on required budget lines and their cost projections,” said Persson.“The government should be advised on the range of potential costs in a few months. I must emphasize that the government is concerned about keeping costs at a minimum, without compromising on quality of service delivery.”
Both the court and the special prosecutor’s office will be independent from control of Gambia’s Ministry of Justice and the judiciary. The court, depending on its own determination, could hold hearings in any country.
Justice will foster reconciliation
Madi Ceesay, a former journalist, is a chair of the Human Rights Committee at the Gambia’s National Assembly and a member of the opposition United Democratic Party. In the immediate aftermath of a foiled coup in March 2006, several civilians and serving military officers were arrested by the government.
The Independent— where Ceesay was a managing editor— ran a story indicating that Samba Bah, a former deputy director of the NIA, was involved in the foiled coup. The paper had mistaken the identity of Samba with Corporal Samba Bah, a serving soldier who was implicated in the coup—according to an anonymous source.
A few days later, the newspaper ran a correction and an apology. Ceesay and his then editor-in-chief— Musa Saidykhan— both of whom testified against Ousman Sonko, in the former Jammeh interior minister’s crimes against humanity trial in Switzerland in January– were arrested, and allegedly tortured at the NIA for 22 days.
“If you look into the violations that happened in this country, from 1994 to date, a number of victims have died. Some are battling with illnesses that may not allow them to see even the end of the court,” said Ceesay, who described the passing into law of the two Acts as a significant step towards justice. “There cannot be any forgiveness if you don’t have justice. Reconciliation cannot take place if people are aggrieved. And prosecutions will also deter future gross violations of people’s rights.”
