The preliminary terms of reference for the planned Truth, Reconciliation and Reparation
Commission are quite encouraging. The government has set out some laudable goals.
The commission might not be the ideal mechanism to investigate and address the many
crimes of the Jammeh regime, but if administered properly, it could yield valuable
evidence for any future prosecutions. It could also help to heal the society, which in my
opinion is not as broken as it is being made out to be. I am yet to be convinced that
holding the criminals accountable for the crimes committed during the Jammeh regime
is going to bring chaos in the country.
It is our hope that the launching of the consultations on the commission is part of a
comprehensive legal strategy to prosecute, in a proper court, the heinous crimes
committed in the past 22 years and end impunity in our society. Even though we
appreciate the fact that the commissions will only be empowered to investigate
wrongdoing and make recommendations for the government to take further actions, we
must recognize that criminals can also use these commissions to their advantage.
There is a legitimate concern that the real culprits, who are still working in sensitive
positions in the government, will not participate in the inquiries in good faith. Worse,
they will seek to undermine the commissions by withholding and destroying evidence.
The findings of the commissions, or lack thereof, can also be used by any savvy
defense counsel to protect criminals the state may wish to prosecute in future.
We understand that the government has to highlight the commission’s power to
“recommend the granting of amnesty to persons in appropriate cases,” in order to
encourage criminals to come forward and participate. A corollary to this objective
should be a clear mandate for the commission to make recommendations to the
government to prosecute egregious violators.
Even if it is not widely publicized, the government must articulate a clear vision, spelling
out what it would regard as extraordinary cooperation warranting leniency or outright
amnesty. We must remember that we are a society of laws and we have international
obligations to ensure that crimes (especially human rights abuses) are properly
investigated, prosecuted, and criminals are appropriately punished.
We suggest that the government stipulate the different factors the commission should
take into consideration when determining whether to recommend amnesty. Surely,
mere participation in the commission should not guarantee one’s amnesty. Ordinarily,
criminals should only be rewarded for voluntary actions beyond compliance with the
laws of the land. It is trite that Gambians have a right to not incriminate themselves.
Therefore, if someone was to appear before the commission and testify against oneself,
and that evidence was the sole or critical evidence that could have been used to convict
that person, it would be understandable if that person is credited for his testimony. But
if the evidence can be obtained from someone else, the person should not be credited
for the testimony. The commission can still use other factors to credit that individual for
participating in the inquiries. But we have to be upfront about these factors from the
onset. The commission can also look into the nature and root causes of the violations:
whether there were repeat violations, whether the criminals acted under duress, or
directed, tolerated or remained willfully blind to the violative conduct.
If over the years or after the demise of the dictatorship the criminals have taken
corrective actions to assuage their crimes, they can be given credit for that. If through
their testimony at the commission the criminals help the government successfully
prosecute more culpable criminals, they can be given credit. But we should not
willy-nilly grant amnesty to a criminal just because the criminal appeared before a
commission and admitted to a cold-blooded murder like the April 10 and 11, 2000
massacre that was committed in broad daylight.
If we do that, we would have failed the victims, because no amount of truth-telling and
reparations, without more, can lift the burden society should impose on murderers. We
will also be in breach of our international obligations to ensure that crimes such as the
April 10 and 11, 2000 massacre do not go unpunished.
We recognize the sincerity of the government and its desire to fulfill a campaign
promise. There clearly exists a tension between that desire and the society’s interest in
holding criminals accountable for their crimes. In order to balance that tension, the
government must ensure that the commission is not used as a tool to unfairly reward
criminals.
We look forward to the day when African politicians, governments, and international civil
servants will lose their fixation on commissions and other mechanisms whose net effect
is to absolve criminals of wrongdoing. It is very easy for politicians to build a narrative
that says that vigorous prosecution of crimes committed by a former regime will
destabilize the society; and therefore criminals should not be held accountable. We
should not easily ignore our laws for political expediency. Those laws are in place to,
among other things, deter criminals from committing crimes and making the society
ungovernable. In a civilized society, when someone’s child is murdered in broad
daylight, the government should investigate the matter and prosecute the criminal
appropriately. The government does not allow that murderer to hold society ransom
and deny the victims and society at large the right to hold the criminal accountable.
Finally, we hope that since one of the proposed objectives of the commission is to
“create an impartial historical record of violations and abuses of human rights” by the
Jammeh regime, the commission’s report will be made public in its entirety. That should
help Gambians assess the dispensation of justice under this government.
Muhamad Sosseh, Esq.
Washington, DC
August 7, 2017
