Following the conclusion of public hearings by The Gambia’s Truth, Reconciliation, and Reparations Commission (“TRRC”) on 28 May this year, and in light of the anticipated publication of its final report, which is expected to include recommendations for prosecution, amnesties and reparations, The Gambia faces another crossroads in its transition to democracy after the end of Yahya Jammeh’s brutal 22-year reign of oppression. Now, it must now deal with the hard question of ‘what should come next,’ and how the TRRC’s recommendations should be addressed.
Thus far, The Gambia’s transitional justice process has been overwhelmingly manifested and supported through a range of locally designed, owned, and actioned practices (1) and initiatives, of which the TRRC is a flagship achievement. Through its hearings, the TRRC has heard the testimony of almost 400 witnesses, some of them confessed perpetrators. Those hearings have marked the beginning of the nation’s reconciliation in a post-Jammeh era, and exposed the serious and systemic nature of the Jammeh regime’s abuses. (2)
1. For example, the TRRC has a witness protection mechanism in place. See, Mustapha K Darboe, ‘One Year of Truth-Telling in The Gambia’, (JusticeInfo.net, 13 Jan 2020). See also, Truth, Reconciliation and Reparations Commission Act, 2017, Section 35
2. Essa Faal, Lead Counsel of the TRRC, stated in his final speech before the TRRC that even excluding those forcibly disappeared, hearings had uncovered that at least 250 people had been sent to their graves by Jammeh between 1994-2017. See, Mustapha K Darboe, ‘Gambia: When is it Time for Reconciliation?’ (JusticeInfo.net 1 June 2021)
In this context, the answer to the question of ‘what comes next’ is an important one, as choices made now will not only dictate the direction of the country’s transition over the coming years, but can also have an important and positive impact on its national institutions, strengthening respect for human rights and the rule of law. The right choices may also serve as lessons for other nations and new democracies, from which they may draw inspiration for their own transitional processes.
That answer is also increasingly urgent. Criminal justice reform bills which have the potential to determine the viability and effectiveness of any accountability measures relative to Jammeh-era violations passed first and second readings in the National Assembly in 2020. Meanwhile, the country prepares for a Presidential election, the results of which will, either positively or negatively, impact the attention given to these proposed reforms and the means and efficacy with which they are addressed.
Notwithstanding the importance and urgency of the question, however, determining ‘what comes next’ remains difficult. On the one hand, despite a successful programme of judicial reform, gaps in the country’s current criminal justice framework, alongside a critical lack of resources and capacity, make the domestic prosecution of post-TRRC cases in the immediate future (either as domestic or international crimes) a real challenge. On the other hand, pursuing a mechanism based on purely international prosecutions carries a genuine risk of divorcing those cases from the local ownership that has been crucial to the TRRC’s legitimacy, (3) and which reflects the closeness and importance of Gambian community values more generally. Equally important is the fact that purely international prosecutions offer no long-term contribution to a domestic criminal justice system that must be rebuilt and legislatively and practically reinforced if a commitment to human rights and the Rule of Law in a post-Jammeh Gambia is to be effectively realised.
3. See, for example, Dakar Guidelines, at, p. 23.
Ultimately, the answer to ‘what comes next’ will likely be that international assistance is required in order to support Gambian institutions in delivering justice for Jammeh-era crimes and strengthening the capacity of national institutions in the long term. However, any such assistance must extend beyond sending a handful of individuals for trials in The Hague (or indeed another third country), and should instead reflect a holistic, realistic, and locally-owned approach to transitional justice and accountability that is genuinely committed to creating enduring change in The Gambia going forward. The international community must learn from previous missions and recognise that what The Gambia needs is real expertise and not a handful of lawyers that merely hold a different passport to the national colleagues they are there to support.
What can justice for Jammeh-era crimes look like in The Gambia?
Although it is apparent that transitional justice should, at its core, be victim-centred, participatory and inclusive, local ideas of precisely what might constitute ‘justice’ for victims of Jammeh-era violations vary in The Gambia. For example, asked during his TRRC testimony what he expected when asking for ‘justice,’ mass execution survivor Martin Kyere, a Ghanaian, explained:
“We have stages of justice…Others think about having their dead bodies or their remains in Ghana buried properly and honoured as a way of justice. Others think about seeing the perpetrators, including Yahya Jammeh, being appeared before competent court as a process of justice, and others also believe that the families need to be compensated because those who have been killed left wives and children and they have a lot of problems in the families as a result.” (4)
4. TRRC testimony of Martin Kyere, 01 March 2021 (03:25:23)
Whilst some have announced themselves able to forgive perpetrators, (5) others have not, and should not be expected to. In that regard, in his July 2020 report on his visit to the Gambia, the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence noted the concern of many Gambians that “reconciliation will not be possible insofar as there is impunity, and that justice would be essential for any reconciliation effort”, and wrote that:
59. The Special Rapporteur would like to stress that forgiveness is a matter of personal conviction, which cannot, and should not, be imposed on victims or members of society. Whether a person has forgiven a crime or not, the State remains obliged to sanction it. Moreover, reconciliation is not equal to forgiveness, but rather the reconstruction of trust between the State – the guarantor of individual rights – and society, and consequently, among members of society. This trust can only be achieved when the State upholds its legal and institutional obligations. The enforcement of criminal sanctions is a vital tool for the reconciliation of society with the State, and it does not hinder the personal forgiveness of victims.” (6)
5. Abdur Rahman Alfa Shaban, ‘Exiled Yahya Jammeh has my Forgiveness but…Ex-Political Prisoner’ (AfricaNews, 26 January 2017). See, TRRC Facilitates Reconciliation
6. OHCHR, ‘Visit to the Gambia: Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence’ (2020)
A similar sentiment was also expressed Dr. Naffie Ceesay, sister of Koro Ceesay, in a press conference on 24 October 2019, where she made a statement (on behalf of their family), saying:
“Forgiveness is not for the villain or the perpetrator. It is a victim’s way of getting back their strength and power. Forgiveness is not a line you cross after hearing somebody give a superficial or pathetic apology… An apology from somebody or their lack of apology has nothing to do with your path of forgiveness. It’s independent of it.”
In this light, many Gambians still consider ‘justice’ in terms of traditional penal accountability before a court of law. (7) This was expressed well, for example, in the statement of Baba Hydara, son of murdered journalist Deyda Hydara, who, following the release of Malick Jatta, the confessed killer of his father, remarked that “there cannot be reconciliation at the expense of justice. We can prosecute these people.” (8)
7. Al Jazeera English, ‘Gambia Commission to Recommend Punishments for Atrocities’ (Al Jazeera, 13 July 2021)
8. Mustapha K. Darboe, ‘Anger Flares at the Release of Gambia’s Confessed Killers’ (JusticeInfo.net, 27 August, 2019)
It must therefore be accepted that while criminal prosecutions will not necessarily be a panacea for achieving justice and reconciliation for everyone in The Gambian community, they remain a critical part of the processes needed to rebuild a post-Jammeh Gambia, both from a Rule of Law standpoint and to achieve closure, accountability, and the restoration of dignity for victims.
This conclusion does not necessarily answer the question of ‘what comes next,’ but it should impact on understanding where, how, and by whom post-TRRC criminal cases are dealt with. Broadly, there are three options in this regard, which include: (a) purely international prosecutions; (b) purely domestic prosecutions; or (c) through a locally-owned ‘internationalised,’ or ‘hybrid’ mechanism, integrated within The Gambia’s domestic criminal justice system.
The International Criminal Court
It cannot be denied that the International Criminal Court (“ICC”) offers some solutions to many of the local challenges to domestic prosecutions of international crimes in The Gambia. However, despite the ICC’s prima facie viability as a referral option, purely international prosecutions would ultimately be an imperfect solution for victims, their families, and Gambian society more broadly, which would be robbed of the local ownership and engagement that has been paramount in ensuring the success of the TRRC thus far.
Further, any prosecutions at the ICC would concern only those most ‘serious’ and ‘senior’ offences and offenders, which begs the question of where, how and by whom the range of ‘other’ post-TRRC cases against lower and mid-level perpetrators would be handled, including those arising from the public confessions of alleged perpetrators. This is particularly so given that purely international prosecutions would make no contribution to any aspect of the development of The Gambia’s criminal justice system, leaving it unable to effectively deal with those cases not adopted by the ICC and thus denying access to justice for many victims. The ICC has been clear in the past that the principle of complementarity, the foundation of its complementary jurisdiction, does not extend to the strengthening of domestic capacity. It should, and with a new Prosecutor and new judges it may, but at present, it does not.
Domestic prosecutions
As noted above, domestic prosecutions for international crimes in The Gambia are unrealistic in the short term, as without co-ordinated, dedicated, long term support, the domestic criminal justice system simply does not currently have the legislative, institutional or infrastructural capacity to carry them out. Although space precludes an analysis of the true scope of the systemic challenges, some of those encountered by Guernica 37 Members and Consultants during their Gambia-related work in 2020-2021 are highlighted here as illustrative examples.
Legislative limitations
First, while high profile prosecutions should not be the sole focus of post-TRRC accountability efforts, it should be noted that the current (1997) Constitution prohibits the domestic prosecution of Jammeh as a former head of state. This remains so despite efforts to remedy this issue, as a new Draft Constitution which (among other things) did away with head of state immunity was rejected by the National Assembly in September 2020. (9)
9. The Chronicle, ‘Barrow and Jammeh Loyalists Kill the Draft Constitution in Parliament’ (The Chronicle, 22 September, 2020)
Additionally, the Gambian criminal legislative framework does not currently include offences that would be needed to address Jammeh-era criminality, among them enforced disappearance and torture or other cruel, inhuman, and degrading treatment, nor does it contain implementing legislation for the core international crimes derived from the Rome Statute, including in particular crimes against humanity. The Gambia is not alone in this apparent restrictive legal framework. Prior to the commencement of cases before the State Court in Bosnia and Herzegovina, and prior to the referral of cases from the UN-mandated International Criminal Tribunal for the former Yugoslavia, a fundamental reform of the substantive and procedural criminal laws in Bosnia and Herzegovina was required to ensure that core international crimes and modes of liability were included.
Further, and problematically, the current Evidence Act prohibits the admission of hearsay evidence. Despite being rooted in The Gambia’s common-law tradition, this presents a challenge to domestic prosecutions for international crimes, particularly of high-level perpetrators, where key linkage evidence often falls within the category of ‘hearsay’ evidence. What is more, local practice continues to apply the Evidence Act’s strict corroboration requirement (10) in cases of rape or other forms of sexual violence against women, despite it having been superseded by Section 7 of the Sexual Offences Act 2013. This is not in line with international criminal and human rights standards, and without a formal repeal, its continued application will prevent access to justice for women who have been victims of rape or other forms sexual violence, both in Jammeh-era Gambia and as a result of the climate of impunity for sexual violence which endures in The Gambia today. (11) Notwithstanding the TRRC’s commitment to victim centred practices, (12) the question of the admissibility or use of TRRC testimony in domestic courts as a means of avoiding victim re-traumatisation is also not resolved by current legislation. It is likely that new rules of procedure and evidence, that incorporate international human rights and best practice standards, will need to be adopted.
Meanwhile, efforts at criminal legislative reform (including those referred to at the outset of this blog) have been stalled, arguably because of the ongoing impact of Covid-19, and what appears to be a shift in priorities created by the upcoming Presidential election.
10. The Evidence Act, Section 180(2)(a)
11. Louise Hunt, ‘#IamToufah: Breaking the Silence on Sexual Assault in Gambia’ (Aljazeera, 12 November 2019)
12. TRRC, Our Victim Centred Approach
Institutional capacity limitations
Further, even if legislative reform is realised, the Gambian criminal justice system suffers from a lack of institutional capacity which might make domestic prosecutions for international crimes unfeasible, not least because local prosecution and defence counsel, while often highly skilled and trained in international human rights law, generally have no experience in international criminal trials, including in particular the complex modes of liability that will have to be grappled with in order to comprehend the scale of criminality apparent throughout Jammeh’s 22-year rule.
Infrastructural limitations
Related to those capacity issues are further concerns arising from the infrastructural limitations impacting the Gambian criminal justice system. Just one example in this regard is that in the absence of any transcription systems, trial Judges, whose workload is already substantial, often have dual roles of adjudicating and creating a written record of courtroom testimony. Ultimately, courtroom transcripts are therefore generally prepared from their handwritten notes. It is also concerning that as of yet, no dedicated victim and witness support and protection programme exists in The Gambia’s criminal justice system, and existing courtrooms are not yet equipped with the technical means to allow for witnesses who have been victims of serious crimes, such as women who have been victims of rape and other forms of sexual violence, to testify in safety and security, which is a particular concern in the ‘tight-knit’ Gambian society.
International/hybrid mechanism
Purely international or purely domestic prosecutions for Jammeh-era crimes are therefore imperfect solutions for The Gambia going forward. However, a solution lies between these two extremes: the establishment of a temporary ‘internationalised’ or ‘hybrid’ mechanism that exists and operates as a specialist arm of the existing criminal justice system, and which is led by and for Gambians, in The Gambia, with the support of the international community.
In the Gambian context, such an ‘internationalised’ or ‘hybrid’ mechanism can reconcile the competing imperatives of local ownership and international prosecutorial efficacy, by enabling access to justice for victims of Jammeh-era crimes in a system that is intrinsically Gambian, but which benefits from dedicated expertise in areas specific to complex international crimes prosecutions.
In light of the obvious overlap between the needs of a criminal justice mechanism dealing with grave crimes and the domestic criminal justice system more generally, (13) such a mechanism could also help reinforce and strengthen the Gambian criminal justice system as a whole. A critical component of the proposed mechanism would therefore be long-term, targeted, expert mentorship throughout domestic criminal justice institutions. In Bosnia and Herzegovina this model proved highly successful. National prosecutors were partnered and mentored by experienced international prosecutors, allowing for an effective exchange of skills. Further, joint panels of national and international judges allowed for mentoring in the judiciary on the managing of highly complex trials, assessing different forms of evidence and comprehending complex modes of liability. Ultimately, this proposal should therefore be delivered as part of a package of measures that represents a sustained local and international commitment to the justice sector reform and capacity-building in The Gambia. This will require active and early engagement by stakeholders on legacy issues and knowledge sharing objectives, so that community contextualised best practices, developed and perfected with the help of dedicated international expertise, are embedded into the Gambian criminal justice system.
13. Open Society Justice Initiative, ‘Options for Justice : A New Handbook for Designing Accountability Mechanisms for Grave Crimes, Open Society Institute’, (Open Society Fondations, 2018), p. 41
It is accepted that the precise practical requirements and complexities of establishing the mechanism proposed here far exceed the scope of this blog. Nonetheless, it is important to note from the very outset that if that mechanism is to succeed, it must fulfil some basic requirements.
Gambian located and Gambian-led
Firstly, it must be grounded in the local context and community at all levels, meaning that it must be seated in The Gambia, and led, from design to delivery, by Gambians, with any international assistance or mentorship remaining firmly in the background as a secondary means to facilitate relevant processes and actors.
Outreach
Secondly, it must be locally contextualised and perceived as legitimate within local communities, which will require effective and ongoing local outreach and community consultation to give a voice to victims and their families, understand community priorities when establishing institutional objectives and defining case selection criteria, and to foster a perception that the mechanism is an accessible and a safe place for all Gambians.
Timeliness
Thirdly, it must operate with an unwavering commitment to timeliness; many victims have waited decades for justice, and proceedings can no longer be delayed, for example because of the need to wait for legislative reform, or because of legislative deficiencies.
Effective, inclusive, and exhaustive
Finally, it must be effective and inclusive in design, exhaustive in delivery and realistic in its application to ensure that whilst no victim should be left behind in the pursuit of accountability, the approach adopted must recognise limitations on available resources and that victims should not be given unrealistic, and largely unachievable, expectations. In order to do so, the mechanism should have a temporally defined scope (from July 1994 to January 2017), which would allow it to deal with the fullest range of serious crimes committed in Jammeh’s Gambia, including those brought to light before the TRRC and those yet to be discussed, as well as those that may not amount to international crimes. That being said, a balance must be found between attempting to address every crime alleged to have been committed by actors associated with the Jammeh regime and dealing with those crimes and patterns of criminality which have had the greatest impact on the Gambian community. This will require the development of locally grounded, locally informed case selection criteria.
Further, in order to ensure its ability to effectively adjudicate upon this range of crimes, any mechanism should be given the power to design, evaluate, and evolve its own rules of procedure and internal guidelines, which could adapt aspects of domestic legislation and incorporate elements of international best practice to facilitate fair, effective criminal proceedings in these complex cases. It goes without saying that any procedural rules or internal guidelines must be consistent with domestic law and compatible with international human rights obligations.
Effectiveness would also require the mechanism to prioritise inter-institutional cooperation. This would include developing a close relationship with the TRRC, which will be particularly vital in order to effectively transfer evidence, including recorded testimony already given at hearings, and, crucially, to carry over any protective measures already in place for protected witnesses. Such cooperation may even have to include the ICC, which may have to consider adopting the leadership cases, such as those against Jammeh, whose potential criminality involves a vastly complex crime base and modes of liability that exceeds the capacity of most domestic criminal justice systems.
What next for transitional justice in the Gambia?
Ultimately, it must be said that over the course of the last four years, the Gambian community has proved its dedication to, and ability to carry out, effective transitional justice processes. However, if the TRRC’s momentum is to continue, attention must now be devoted to taking purposeful steps toward answering the questions of ‘what comes next’.
Those steps can and should begin as soon as possible with strategic multilateral discourse between relevant stakeholders to establish transparent objectives, criteria and procedures for the handling of post-TRRC cases, which must be dealt with by Gambians, in The Gambia, and should be supported by the international community. Only then will those post-TRRC cases work to foster a culture of accountability, recognise the dignity of the victims, and develop the Rule of Law in The Gambia in the long term, so as to finally give life to the “never again” motto of the TRRC.
Guernica 37’s work in The Gambia
There are significant advantages in developing the aforementioned programme through an institution, such as Guernica 37, which has access to a broad range of specialist practitioners skilled in domestic and international criminal law, international human rights law, sexual violence, investigations, Rule of Law development, and a range of other areas.
Members and Consultants of Guernica 37 also have a significant degree of specific experience in The Gambia, where they have worked on structural reform and institutional capacity building projects, including for and on behalf of both the Ministry of Justice and the Judiciary. This experience echoes Guernica 37’s unparalleled experience in advising and assisting numerous other States, including in particular Bosnia and Herzegovina and Kosovo, as they commence a process of structural reform and transformation following periods of political instability, post-conflict, post-authoritarian regimes or prolonged periods of state institutions controlled by systemic and structurally corrupt practices.
Guernica’s specialist international legal team designs, supports and implements, depending upon the needs of the State, a comprehensive, yet realistic, tailored strategy based on a fundamental understanding of the situation and geopolitical position. In our work, we take into consideration each and every aspect needed for a feasible and successful process by drawing on our experience in a wide and disparate number of situations and past projects, ensuring that specific needs and requirements are catered for, and a bespoke program of training, assistance, and mentorship can be designed and implemented, drawing on the experience of all Members on a needs basis.
For further information, please contact: clerks@guernica37.com