Proposal for the Creation of a Special Tribunal for the Prosecution of Gross Human Rights Violations and Acts of Corruption Committed Between 22 July 1994 and 19 January 2017 in the Gambia

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Building The New Gambia

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Open Letter to:

1. Chief Servant Adama Barrow
2. Speaker Mariam Denton
3. Chief Justice Hassan Jallow
4. Minister of Justice Aboubacarr Tambadou

Proposal for the Creation of a Special Tribunal for the Prosecution of Gross Human Rights Violations and Acts of Corruption Committed Between 22 July 1994 and 19 January 2017 in the Gambia.

At the end of the Second Imperialist War (aka WWII) in 1945, the Allied Powers created a special court, the International Military Tribunal through a charter to prosecute German war criminals at Nuremburg. A similar court was also created in Tokyo for Japanese war criminals. Many years later, at the end of the Yugoslavia War, the UN Security Council through a resolution created the International Criminal Tribunal for the Former Yugoslavia in 1993 to prosecute those who bear the greatest responsibility for the gross human rights violations in that war. A similar court was also created for Rwanda in 1994 after the genocide to try those who were responsibility for those crimes. The court was set up in Arusha in Tanzania where our current Chief Justice Hassan Jallow was the Chief Prosecutor, and our current Minister of Justice was an employee of that court. We also recall the Khmer Rouge tribunal in Cambodia for the prosecution of human rights violations under the oppressive Pol Pot regime. Yet again, we saw the same kind of special tribunal created in Sierra Leone following their civil war even though they also had a truth and reconciliation commission.

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The Gambia did not experience the kind of conflict these countries encountered. However serious violation of human rights and severe acts of plunder of public resources did occur in our country over the past 22 years that require accountability. I submit that prosecuting these violations ad corruption through the normal court system would not serve the purpose of justice well enough because of many challenges.

In the first place, it was a good idea that the Minister of Justice appointed a Special Prosecutor to try the NIA 9. But given the whole scenario of the 22 years of dictatorship, I am of the view that the Government needs to go the full length to establish a more viable mechanism to bring those who bear the greatest responsibility for human rights violations and corruption to book. For this matter, the Gambia needs a special court to be able to ensure that justice is dispensed in the most thorough, cost effective and credible manner.

I made reference to the international and regional scene to show that such measures were once undertaken in various parts of the world hence it is possible to also carry them out at the national level. This could be done and it will be legal, fair and just. Apart from that there are other reasons for which the creation of such a tribunal is also necessary and justifiable.

First. The Gambia’s current Criminal Code does not explicitly contain such offences as torture, sexual violence, enforced disappearances and summary executions within the context of a tyrannical regime. Where such offences exist they are not as explicit as to carry the same or exact definitions and elements as in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Even while the Sexual Offences Act addresses rape, yet it does not fully capture this crime in terms of a crime perpetrated from a standpoint of a political objective. Given that these are international crimes and which were committed in a widespread and systematic manner during the reign of terror of an oppressive regime, it is therefore necessary that special measures be taken to address them. Otherwise, the prosecution of perpetrators of these crimes will become difficult and cumbersome in the hands of our Justice ministry and the Judiciary leading to potential delays and derailment.

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Second. Without a special tribunal to focus specifically on this period and the crimes committed therein, it would mean that both the Ministry of Justice and the Judiciary would be adding additional work onto their existing workload to handle these cases. Such capacity does not exist. In fact this is one of the reasons the Ministry of Justice exercised good sense to appoint a Special Prosecutor. But then this Special Prosecutor is only half the solution because his mandate is only focused on the NIA 9 case. What about crimes committed on 11 November 1994 and the many others that followed until 14 April 2016 when Solo Sandeng was killed, including the 3 million US dollars donated by Taiwan that disappeared between Yaya Jammeh and former AFPRC Spokesman Ebou Jallow. Thus this means the role of this Special Prosecutor itself needs to expand and better situated. Thus given this scenario it makes sense that the State restructures the justice delivery system to allow a new tribunal in which the role and position of the Special Prosecutor will also be reviewed accordingly.

Third. Since the arrest and beginning of the trial of the NIA 9 and the arrest of several henchmen of the ancien regime, there has been minimal progress for a number of reasons. One of them is the lack of cooperation by the defense in relation to the appointment of a Special Prosecutor. Even though such a position is quite disingenuous on their part as the appointment of the Special Prosecutor is legally justifiable, such obstacles could however be avoided if a special court were created instead.

For that matter I submit to all of you honourable trustees of the Gambia that the Government drafts a bill for the setting up of a Criminal Tribunal for the prosecution of those responsibility for the gross human rights violations and perpetration of the international crimes of torture, rape, enforced disappearance and summary executions as well as corruption during the period 22 July 1994 to 19 January 2017. The tribunal will have its own judges, prosecutor and defense lawyers. It will operate as an open and just court that bears all the hallmarks of a competent court with the necessary jurisdiction and to conduct fair trials and dispense justice. The Special Prosecutor will then be the Chief Prosecutor of the new tribunal. All accused persons will have their defense lawyers to defend them, as they should.

Failure to create this mechanism but to rely on the usual court system could create potential risks for the country. In the first place, it could cause long pre-trial detentions as well as delays and even derailment in the ongoing and future trials that would translate into justice being denied. For many weeks now, many ‘Junglers’ and NIA agents are under detention yet as human beings they have the same rights as anyone else. Therefore if they remain under detention up to a certain time, then their status may change from alleged perpetrators to victims. In that case human rights activists and organizations will have no choice but to defend their rights. This will further put pressure on the government, which can also lead to some agitation in the country.

But to ensure effective investigations and dispensation of justice, it is also urgent hat the NIA be closed immediately. The NIA is a crime scene. The premises and agents of the NIA were part of that system that unleashed heinous crimes on our people. Hence leaving the NIA open with the same old agents potentially interferes with evidence to the detriment of justice. For that matter, the NIA must be closed and all staffs put under suspension. The Government must then create a caretaker taskforce to conduct an audit of the agency in all respects. By leaving the NIA open as it is means we would be making the search for truth and delivery of justice extremely difficult, if not impossible.

Similarly other agencies such as the National Drug Law Enforcement Agency, Operation Bulldozer and all official and unofficial detention centres that they have must be put under the purview of this caretaker audit taskforce just to make sure that evidence is not tampered and obstructions are removed in the way of the truth and justice. The fact is that the NIA and NDLEA are directly and deeply intertwined with the crimes of the Yaya Jammeh Dictatorship.

Finally, I want to emphasize that the Gambia is at a very critical moment and it requires bold and decisive leadership to recover, redirect and rebuild this country. There is no better starting point than to ensure accountability for the gross human rights violations and acts of corruption of the past. That is what will heal and stabilize this country so we can better focus on rebuilding our institutions and economy to give relief to our society. I wish to kindly submit this urgent suggestions and I hope you will consider them in the supreme interest of the Gambia.
In The Service of the Gambia
Signed: Madi Jobarteh

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