Court-martial is governed by military law and meant to prosecute military personnel if they are found to have committed an offense contrary to military law while in army. In fact, court-martial is a different justice system. Court-martial is governed by a uniform code of justice system that lists criminal offenses under military law. In the Gambia, there is an Armed Forces Act that established the code of military discipline. When military personnel commit an offense while serving in the army, they are subjected to a court-martial which is usually decided by military officers.
On the other hand, a civilian trial is conducted using rights and laws established in the Constitution. Defendants in this case are judged by a jury of their peers or a Judge appointed to decide their faith. If a regular citizen commits a crime, they are subjected to a civilian trial. Although the two (court-martial and civilian trail) are similar in the sense that there is a defendant is being tried for an offense, criminal or otherwise, but two different justice systems are being used.
Now that the difference between Court-Martial vs. Civilian Trial has been established, let’s explore Baa Tambedou’s decision to release the Junglers who were still in custody since their arrest by the military police in 2017. Here is the reasoning behind the Justice Ministry’s release of the Junglers, according to the letter that was sent to the army: “Following the appearance and the testimony at the TRRC of Malick Jatta, Omar Jallow and Amadou Badjie, all serving members of the Gambia National Army, during the week of 22-25 July 2019, and in view of their cooperation with the commission regarding several incidents of human rights violations and abuses under the previous administration, the Attorney General recommends that the said soldiers be immediately released from custody.” Then a set of conditions followed.
When these Junguler were arrested in 2017, they were still serving in the army and the arrest was effected by the military police. Since the offenses they committed were done while in uniform, it would be reasonable to assume that their prosecution would be handled through court-martial, right? If so, can Baa Tambadou as the Justice Minister override that? If an army officer is arrested because they have an offense contrary to military law while in the army, should the Minister of Justice be deciding their faith? Should these killers be released just because they told the commission who they killed, when they killed them and how? And if the argument is that these Jungler were held by the army without being charged, should that not be handled through the court-martial process and not a letter from the Ministry of Justice? I am just asking the questions.
Now, even in the event that Baa Tambadou as Justice Minister is able to override all the legal systems in the Gambia, including court-martial, he should not be releasing the Junglers in such a way. He should have sat down with the victim families and have a conversation with them and have their buy in, rather than doing it in such a unilateral manner. This is an abnormal situation and needs to be handled with absolute care and a high degree of empathy. The TRRC is here to seek the truth and make recommendations, but the truth has been elusive in many instances. Regardless of what the TRRC recommend, victims still have the right to seek justice as they see fit, and Baa Tambadou and his ministry cannot stop that. As Baa Tambadou himself has said, the TRRC is not a court of law and handling this entire delicate issue of reconciliation needs to be done with absolute care and caution.