The Government Of The Gambia Taken To Task In Geneva
Recommendations On The Armed And Other Forces Of Repression
Third & Final Part
On 18th and 19th June 2015, Mr. Christof Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions, participated in the 29th session of the United Nations Human Rights Council. He addressed 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 3rd to 7th November 2014. In a series of two articles Kaironews last month published excerpts of the report and comments, and is here concluding series wih excerpts from the lengthy recommendations.
A. To the Government of the Gambia
Ratify the human rights treaties to which it is not yet a party, particularly the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and the International Convention for the Protection of All Persons from Enforced Disappearance.
Deposit with the Secretary-General of the United Nations the instruments of ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and other instruments as applicable.
Harmonize domestic law with the Gambia’s international treaty obligations.
Repeal or amend all national legislation that is incompatible with international human rights standards, including:
(a)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 “aggravated homosexuality”;
(b)The Indemnity Act of 2001;
(c)The Information and Communication Act of 2013;
(d)The amendments to the Criminal Code which broaden definitions and impose harsher penalties for various offences, such as sedition, libel, public disorder, and giving false information;
(e)Section 18 (4) of the Constitution, which sets the threshold for the use of force excessively low. “
Our comments: We welcome and do strongly support the call for the repeal of the above itemized pieces of law and legislation but we have a slight concern wit the way the items were rank with item “a,”a fascistic piece of homophobia, because it is presented as the most urgent or important to be dealt with. As noted in part two of this presentation, while we strongly condemn all homophobia, we do not consider the matter an issue in The Gambia given its extremely low incidence and prevalence. The controversy over homophobia is just a decoy used by the mercurial Gambian leader to distract international critics away from the real crimes he is permanently engaged in.
Ensure that all norms and regulations on the use of force by law enforcement officials comply with international standards, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials.
Ensure that any use of force by law enforcement officials is proportionate and necessary in view of the threat posed, and that lethal force is only used when absolutely necessary in order to protect life against an immediate threat.
Provide regular human rights training to law enforcement officials (including those of the National Intelligence Agency and the National Drug Enforcement Agency), correctional service officers and military personnel, and ensure that human rights are an integral part of the curricula of their academies or training programs.”
One example of such bestiality after Mr. Christof Heyns’ November 2014 visit is the March 2015 fatal shooting of one Binta Jarjue in the Serrekunda suburb of Manjai over suspected traffic violation by the taxi cab driver in whose cab she and her boy-friend were in. No charges were brought against the soldiers responsible.
Ensure that the National Assembly complies with the requirements under the 1997 Constitution to review the desirability of the death penalty, with a view to its abolition.
Pending abolition of the death penalty, declare an absolute moratorium on executions, excluding any conditionalities; remove from the law any mandatory imposition of the death penalty; commute all outstanding death sentences to term sentences; and ensure better conditions of detention for death row prisoners, as well as visits from their lawyers and family members.”
Our Comment: Use of force by law enforcement agencies paramilitary groups and thugs like the Green Boys & Girls is the order of the day in Gambia.
“A repressive State apparatus in the hands of the security forces appears to reign in the Gambia. There is widespread fear in civil society about the unchecked use of force by law enforcement agencies. The security forces, over which the President retains a strong grip, actively repress any sign of discontent, terrorizing civil society and instilling a climate of fear and mistrust via routine arrests, enforced disappearances and extrajudicial executions carried out against anyone considered to be critical of or threatening to the regime. The security forces are also widely perceived to be corrupt and inefficient.”
“The Constitution of the Gambia does not require the existence of an imminent threat of death or serious injury for the use of lethal force, nor does it require that it only be used when it is strictly unavoidable in order to protect life, as prescribed by international law. Conversely, under article 18 (4) of the Constitution, the use of such force is allowed when “reasonably justifiable” for the defence of property, “to effect lawful arrest or prevent the escape of a lawfully detained person”, “to prevent criminal offences”, or in cases of “riots, insurrection or mutiny”. Under this provision, deprivation of life for such offences may not be regarded as arbitrary, if reasonably justifiable in the circumstances of the case. This gives law enforcement officials unrestricted power to use lethal force at will, including for minor offences against property, without fearing administrative or legal sanctions. The Special Rapporteur notes with concern that this provision sets the threshold for the use of force excessively low and is incompatible with international law norms.”
“The Special Rapporteur is concerned that the Gambian legislation setting out the constraints and requirements for the use of force by the police is insufficient. The only instrument setting certain conditions for the use of force is the aforementioned manual, which provides a set of guidelines on “the reasonable” use of force, reporting structures and responsibilities for cases involving force, and directives for situations requiring medical attention. Although reference is made to an immediate threat to life or serious injuries as one of the factors determining such reasonableness, concern is raised that much emphasis is placed on the officer’s discretion at the time of the events. While the manual provides for the use of restraining techniques and deadly force in such situations of threat, it does not include directives defining the circumstances, conditions, degree and manner in which such force may be used.”
“On the other hand, the new draft code of conduct is addressed to all officials under the authority of the Ministry, not only law enforcement officials. As a result, the code is vague and focuses on internal management and performance issues, rather than on standards for the use of force, except for reference to the obligation to prevent death in custody and to use force that is lawful and proportionate to the threat. More specific guidelines on the conditions for the use of force, training requirements, and internal accountability mechanisms remain to be integrated into the code.”
“The existing police training manual does not include human rights issues. The Inspector General of the Police has noted the force’s aspiration to integrate such training into its curricula. The Special Rapporteur has been informed of discussions with international organizations on the provision of technical assistance in this matter and encourages such an initiative.”
“According to Gambian law, the police are required to obtain a warrant before arresting a person,36 and the suspect must be informed of the reason for the arrest within three hours, and be either charged or released within 72 hours.37 However, the Special Rapporteur has received reports that the police sometimes extend the 72-hour limit on detention without charge and seldom conduct arrests pursuant to a warrant. Other deficient arrest procedures include delays in informing detainees of the charges being laid against them, and delays in facilitating access to lawyers and to family members. Several allegations were made about the police using excessive force against suspects during arrest, interrogation and pretrial detention. With regard to the practice of torture or ill-treatment, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has indicated that, while in some individual cases ill-treatment does occur in police stations and during arrest or transfer to police stations, he has not found evidence that such abuses are part of a widespread pattern or systemic practice.38 The Special Rapporteur on extrajudicial, summary or arbitrary executions recalls that States are held to a heightened level of diligence in protecting the lives of detainees and must take adequate measures to protect their lives.”
“The Inspector General of the Police confirmed the existence of paramilitary units, which are established as armed wings of the police and are mandated to conduct crowd control during public events, riots or other civil disruptions, as well as to perform other general policing duties for which they are only armed with a truncheon and handcuffs. Likewise, he noted the existence of an anti-terror unit, consisting generally of police officers who perform their duties unarmed.”
“The Inspector General also confirmed the existence of a unit within the security forces called the “Bulldozers”, which reports to the Inspector General and is headed by the Deputy of the Gambian Police Force. It is an operational task force consisting of agents from different security forces who come together, when required by a particular situation, to perform special tasks, which often entail patrolling and arresting suspects who are later rendered to the relevant departments. It has been criticized for abuses in the conduct of its operations. When launching “Operation Bulldozer” in 2012, Mr. Jammeh instructed security forces to “shoot first and ask questions later” to rid the country of all criminals.40 This message gives security officers the idea that it is permissible to use lethal force as a first resort, which is in stark violation of international standards on the use of force.”
2.National Intelligence Agency and National Drug Enforcement Agency
“The legal constraints on the use of force by the National Intelligence Agency and the National Drug Enforcement Agency are even less clear than those on the police. These agencies fall under the responsibility of the President’s Office and report directly to him. The National Intelligence Agency is mandated to guard State security, conduct intelligence work and collect intelligence data. Although the Constitution does not provide for the establishment of this agency, the Special Rapporteur was informed that military decrees enacted prior to the adoption of the 1997 Constitution give the National Intelligence Agency broad powers to carry out arrests without charges and to detain individuals indefinitely in the interest of national security. The Special Rapporteur was not able to get hold of a copy of the decrees, and their enforcement was not confirmed or denied by State authorities. Officials interviewed by the Special Rapporteur denied that the National Intelligence Agency assumed police functions of arrest, detention and interrogation, and indicated that such incidents occurred in exceptional cases and until the police could take custody of the suspects. However, the Special Rapporteur received numerous reports to the contrary.”
“The aforementioned code of conduct will not govern the conduct of agents of the National Intelligence Agency or the National Drug Enforcement Agency, as these agencies are not under the authority of the Ministry of Interior. Although officials informed of the existence of a code of conduct for the National Intelligence Agency, the Special Rapporteur was unable to obtain a copy. The Drug Control Act mandates the National Drug Enforcement Agency to investigate drug trafficking and related crimes, and provides some guidelines on their activities. It seems, however, that the National Drug Enforcement Agency is also de facto invested with broad powers to protect State security, and it is not clear what the constraints are on their powers to use force.”
“The Special Rapporteur received alarming reports of persons being detained, tortured, and even disappeared or executed at the hands of the National Intelligence Agency. The reports also indicate that the National Intelligence Agency places arrested suspects in detention facilities within its premises, where persons are held incommunicado without charge for weeks or months before being brought before a judge or the police, are subjected to intense interrogations which routinely include ill-treatment and sometimes torture,41 and are denied access to a lawyer or to their families. In most cases, family members are not informed of the detention or the whereabouts of the person concerned. Many of those interviewed told the Special Rapporteur of a place called “Bambadinka” in the National Intelligence Agency headquarters, which they say is used for these purposes. In interviews with high-ranking officials of the Agency, the existence of places of detention under Agency jurisdiction was profusely denied.42 Cases of abuse of power, including death in custody, by agents of the National Drug Enforcement Agency have also been reported to the Special Rapporteur.”
“The Special Rapporteur expresses serious concern about the unchecked and broad powers afforded to the National Intelligence Agency, the National Drug Enforcement Agency and the special units that operate under the umbrella of the Gambian Police Force. The lack of clarity on the rules governing the use of force by law enforcement agencies performing arrest and detention duties provides fertile ground for abuses to take place and is in stark violation of the requirements of international law. In order for abuses not to take place, it is the responsibility of the authorities to establish clear rules, rights and duties for the conduct of all State agents that have law enforcement powers.”
“ 3.Prison services
The Special Rapporteur received reports of cases of excessive use of force and cases of denial of medical care by prison officials that had occasionally led to deaths in custody, which were not adequately examined by forensic experts due to negligence and a lack of in-house forensic expertise.44 The Government did not provide statistics but advised that all deaths in custody were from natural causes.”
“The Special Rapporteur received diverse reports and testimonies about the existence of paramilitary groups in the country associated with the security forces and operating under direct orders of the President. A group reportedly called the “Jungullars” or “Junglers” was associated in those reports with arbitrary arrests, detention, torture, enforced disappearances and extrajudicial killings, of persons opposed to the regime, journalists and ordinary civilians. Such a unit, if it exists, will clearly be unlawful under international law and expose anyone involved in it to criminal prosecution. A judicial commission should investigate the very serious allegations in this regard.”
“The Special Rapporteur has also received reports about another group called the “Green Boys”, made up of young activists supporting the ruling party and accused, among other things, of taking part in a witch-hunting campaign against hundreds of villagers in 2009. In its discussions with the Special Rapporteur, State officials denied the armed character of the Green Boys, indicating that they were a political group.”
“The Special Rapporteur recalls that there is a positive obligation on the State of the Gambia to ensure the protection of persons under its jurisdiction against violations by private persons or entities. The authorities must exercise due diligence to prevent, investigate, punish and redress the harm caused by non-State actors, and to bring the perpetrators to justice (CCPR/C/21/Rev.1/Add.13, paras. 8 and 18).”