In the Attorney General’s attempt to rationalize the recommendation to release confessed killers to the society, he gave the victims and Gambians a false choice between on the one hand releasing the killers or on the other hand keeping them in custody without trial in contravention of the laws of the country. He went further to suggest that people, including the victims, who do not agree with his decision to release the killers condone the violation of the human rights of the killers. Nothing could be further from the truth.
We respect the human rights of everyone, including confessed killers. Which is why I would submit that there is a third option the Attorney General should have pursued. The Attorney General should have charged these people a long time ago and sought guilty pleas from them. Even if that means they will not cooperate with the TRRC, so be it. We have to understand that the TRRC is not the ultimate goal here. Justice for the victims is the ultimate goal. Call it transitional justice or any other fancy characterization. The TRRC is just a mechanism for getting to justice. And in my opinion, it’s a poor mechanism compared to a functioning court system.
The Attorney General’s claim that the criminal justice system cannot run parallel with the TRRC is neither based on sound legal reasoning nor on solid strategic grounds.
Legally, the Constitution mandates the Attorney General, through the Director of Public Prosecutions, to charge people who violate our laws. The Constitution does not say that he should only bring charges when he gets a referral from a body such as the TRRC. Not even the TRRC Act contemplates that reading of the law. On the contrary, according to the Act the commission can only make recommendations and the Attorney General is free to ignore the recommendations. Judging by what they did to the recommendations from the Faraba Commission, it is highly likely that this government is not going to act on recommendations to prosecute from the TRRC if those recommendations do not align with their political benefits.
Strategically too, it takes nothing away from the TRRC process if witnesses such as the confessed killers under discussion are charged and punished before they appear at the commission. Matter of fact, their testimony before the commission will be more credible if they give it after they have been sentenced and without the expectation of leniency. But as things stand now, detractors of the TRRC can claim that these witnesses are being induced to give false testimony in exchange for amnesty. You avoid that accusation by sentencing them before they appear at the commission.
Finally, to show that not even the Attorney General believes in the notion that Gambians who committed crimes during the Jammeh dictatorship should not be charged while the TRRC is ongoing, just witness what the government did in the case of Yankuba Touray. Is Yankuba Touray not being charged with crimes committed during the dictatorship? Is this government telling us that it is more offensive to refuse to testify before the TRRC than to slaughter innocent Gambians? So if Yankuba Touray came to the commission and lie to the Gambian people, we should reward him by not holding him accountable? This is precisely why some of us have argued against commissions of inquiries for the past two decades. It doesn’t work. It’s a mockery to our African justice systems. I understand the Attorney General when he says that it’s practically impossible to charge everyone. True. But no one is asking him to charge everyone. We want him to charge confessed killers. It doesn’t get worse than these people. Or is the threshold that everyone below Yaya Jammeh should go free because they do not bear the ‘greatest responsibility?’ If the Attorney General is working on that premise, he needs to articulate that to the Gambian people and see if people buy that.
Muhamad Sosseh, Esq.
August 7, 2019