The Gov’t.Of The Gambia Taken To
Task In Geneva.
On 18th and 19th June 2015, Mr. Christof Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions, participate in the 29th session of the United Nations Human Rights Council. He address the Council to present his latest activities and country-specific and thematic reports and conduct an interactive dialogue with State Delegations and NGOs.
The Special Rapporteur conducted an official visit to the Gambia from 3 to 7 November 2014.We here by reproduce his report on The Gambia, as well as comments on his report that have been provided by the Government of The Gambia.
The report presents his main findings, including with regard to the imposition of the death penalty, the resumption of executions, the use of force by law enforcement agencies, impunity for extrajudicial executions, the use of force during demonstrations, lack of accountability for human rights violations, groups at risk and fear of reprisals. It proposes recommendations to the Government, the international community and civil society to prevent unlawful killings and ensure better protection of the right to life.
We are reproducing excerpt from the report and comments by kaironews:
And Our Comments
On The Legal Framework
The report stated:
“The Constitution of the Gambia, approved by referendum, entered into force on 16 January 1997. Chapter IV of the Constitution provides for the protection of fundamental rights and freedoms. The right to life is established therein as a fundamental human right from which no derogation is permitted, even at a time of public emergency that threatens the life of the nation. Despite these constitutional guarantees, compliance is deficient and many fundamental rights are routinely violated.
Moreover, in recent years, the Government has adopted legislation that infringes international human rights standards, such as (a) the Indemnity Act of 2001, which gives the President the power to indemnify law enforcement officials for abuse of force during situations of public emergency, unlawful assembly, public disturbance or rioting; (b) the Information and Communication Act of 2013, which creates several new offences and imposes harsher penalties for online activity deemed critical of the Government; (c) a series of amendments to the Criminal Code, which broaden definitions and impose harsher penalties for various offences, such as sedition, libel, public disorder, or giving false information; and (d) the Criminal Code (Amendment) Acts of 2005 and of 2014, sections 144 and 147, on “carnal knowledge of any person against the order of nature… and any other homosexual act” and on “aggravated homosexuality”, which criminalize sexual activities between consenting adults.”
These four infringements are far from being the only or the main ones. Since the July 1994 coup and even after the 1997 constitution came to be law President Jammeh has been ruling the country more by decree than what is based on the constitution. Gambia’s constitution has been assumed by all to be the by-law for governance in the country but everyone knows what prevails is a parallel system of rule alternately and even contradictorily by decree and by the constitution. When the constitution is against a matter that is expedient to the autocrat, he simply ignores it and issues a fresh decree that will be endorsed later by the puppet parliament or even ignored completely. Recent cases attest to this, the autonomy of the Central Bank of the Gambia is guaranteed in the 1997 constitution, for instance, and they, not the Office of the President is to determine the official exchange rates, but jammeh regularly flouts this rule, with even the IMF left looking bewildered and helpless.
After his landslide at the last presidential polls Jammeh got the National Assembly purge out of the constitution all the check s and balances he sees as impediments to totalitarian grip on the ship of state and public affairs. In the regions he emasculated the powers of the regional councils and the authority of the chairmen; in the National Assemblies he left individual members of parties so weakened and subjected to the parties that , using it, he can sack any APRC member, not only out of the party but out of the Assembly as well. In short constitutional provisions, the rule of law and administrative regulations are all allergic to President Jammeh.
Now that he is ready slashing out all these checks and balances, Jammeh can now have time to impose new Acts, laws, and decrees just for the sadistic love of it or according to his mercurial whims and caprices; that can be ranging, all from witchcraft, homosexual practices or of Islamist inspirations.
But let us hear more from the report:
“The legal system of the Gambia requires the domestication of international treaties before they can be enforced by national courts. At the international and regional level, the Gambia has ratified several human rights treaties, including the International Covenant on Civil and Political Rights and its First Optional Protocol, and the African Charter on Human and Peoples’ Rights. However, the country is yet to ratify a number of international human rights instruments, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention for the Protection of All Persons from Enforced Disappearance, the Convention on the Rights of Persons with Disabilities, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. According to information provided by the United Nations country team, the Government has indicated that some of those treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities have been ratified by the National Assembly but the instruments have not been deposited with the Secretary-General of the United Nations. When asked about such ratifications, the Special Rapporteur encountered confusing answers from State authorities, who seemed to be unaware of or insufficiently informed about the process and the current status of ratifications. Along with inadequate information management processes, Cabinet shuffles are arguably responsible for this, as the heads of key ministries such as justice and foreign affairs have changed continuously in recent years, resulting in a lack of institutional memory. The Special Rapporteur would like to take this opportunity to repeat the question to the Government: have these treaties been ratified?”
Interesting that the Rapporteur finds it necessary to ask such a question, but let us hear him on the 2012 resumption of executions:
“After 27 years of no executions, Mr. Jammeh announced in August 2012 that all existing death sentences would be carried out. On 23 August 2012, nine death row prisoners held at Mile 2 Prison were executed, allegedly by a firing squad. At the time of the executions, there were 47 inmates on death row. According to the available evidence, the death sentences were imposed in violation of major international fair trial standards, including the “most serious crimes” provisions. The following week the executions were halted, and the remaining prisoners on death row were spared. The only difference between those who lived and those who died seems to be pure luck. The killings were, in other words, arbitrary and thus unlawful.
“This callous treatment of human life shocked the international community and was met with global condemnation, including by the United Nations High Commissioner for Human Rights, the African Commission on Human and Peoples’ Rights and the European Union. The Special Rapporteur sent an urgent appeal to the Government and expressed publicly his outrage over the resumption of executions, but did not receive a substantive response from the Government.”
“Reports that were brought to the attention of the Special Rapporteur indicate that Malang Sonko, Tabara Samba, Buba Yarboe, Gebe Bah, Lamin Jarju, Alieu Bah and Lamin Jammeh were executed without exhaustion of their legal appeals. Another person who was executed, Dawda Bojang, had been sentenced to life imprisonment in 2007 but had had his sentence altered to capital punishment in 2010 after he appealed to the High Court. At the time of the execution, he had not exhausted his appeal to the Supreme Court. The death sentence of another prisoner, Lamin Darboe, had been commuted to life imprisonment in 1991 and was then reinstated by the Armed Forces Provisional Council in 1995 when Gambia restored the death penalty, in violation of the principles of non-retroactivity of the law and the right to benefit from a lighter penalty. He had not exhausted his legal appeals. “
“The Government denies that the nine prisoners were executed pending exhaustion of their appeals, According to information from other sources, none of the cases were brought to the Supreme Court before the executions were carried out, and some did not reach the Court of Appeal. As the Constitution provides that appeals in death penalty cases are automatic, the onus was on the authorities to ensure that appeals reached a higher tribunal. If the information obtained is correct, these incidents are in violation of national and international norms prescribing that procedural guarantees must be observed before the death penalty can be imposed, including the right to review by a higher tribunal. The Government could easily prove their version by making records of the court proceedings available. So far they have elected not to do so. The Government is again requested to provide the records.”
“Reports further indicate that the trials did not meet other due process safeguards, such as the right to consular assistance. Two Senegalese prisoners — Tabara Samba and Gebe Bah — were among those executed, however the Senegalese authorities were not informed prior to the executions.”
The Special Rapporteur was also informed that one of those executed, Mr. Yarboe, may have had a mental disability, an allegation denied by the Government. International law provisions prohibit the imposition or execution of the death penalty on a person who has any form of intellectual or psychosocial disability.”
“Furthermore, the Special Rapporteur expresses concern that the executions were carried out in secrecy and without prior notification being provided to the prisoners, their families or their lawyers. According to reports, the Gambian authorities only confirmed the executions several days after they had taken place. This practice runs counter to the general obligation of States not to practice the death penalty in secrecy.”
“In addition, the bodies of those executed were not returned to their families and they were not informed of the place of burial.”
The Prison Visiting Committee, comprised mainly of serving or former government officials, reportedly visited Mile 2 Prison only three months after the executions.
“In September 2012, a renewed conditional moratorium was put in place, dependent on the rise or fall of the crime rate in the country. The moratorium is obviously to be welcomed, but the precondition is problematic — the question of whether those on death row will live or die is made contingent upon external developments that are far outside their control.”
However there have been some developments on that front, the death sentences meted out to two or three allegedly involved in the failed December 20th 2014 coup attempt in Banjul. Are we sure those men have already not been executed? The Special Rapporteur would not be able to tell
(To Be Continued).