Article: By Lamin Gagigo LLB (Hons) Law with Criminology LLM Public International Law
Friday the 2nd of December 2016, was a remarkable day in the history of The Gambia, it was a day of joy and happiness for all patriotic Gambians both at home and those in the diaspora. This day shows us that as Gambians we are one family, one country that was built on shared values, mutual respect for one another and common interest for a peaceful, prosperous and free and democratic Gambia for all. For the past two decades minority of people have been inciting hatred and tribal difference among us but we stood shoulder to shoulder with each on this historical day despite our religious beliefs and tribes and show the entire world that Gambians are a tolerant and diverse people who cannot be divided .
All Gambians leading to the campaign and the election process anticipated the fear of violence, intimidation of political opponents and obsessive use of force by the security services and agents of the state, to prevent people from exercising their basic fundamental rights. This was to stop people supporting the political party of their choice and vote for whoever they want to other than the incumbent, but thanks to Allah the Almighty everything went well and smoothly.
Therefore, we must show our sincere appreciation and gratitude to the Chairman of the Independent Electoral Commission (IEC) – Alieu Momarr Njie for his refusal to rig the votes. To our patriotic military services men and women, police officers and paramilitary officers who defended us and stood firm against the directives of the tyrannical Jammeh to use deadly force against innocence civilians and political opponents at any course. These services men and women including the IEC Chairman understood that the democratic will of the Gambian people demand for change and better life had to be respected and honoured.
Our struggle for change for a better future, for democracy, justice, and freedom for all, wouldn’t have been achieved today without the immense sacrifices endured by people like Lawyer Ousainou Darboe of United Democratic Party (UDP) and hundreds of opposition’s figures, services men and women in exiled and those incarcerated in prisons across the country and those who have sadly lost their lives in the hands of the oppressive regime of President Jammeh and his government. All Gambians owe their freedom to these people and we should always have them in our thoughts and prayers. Besides, it is our duty now to ensure that these people are free from incarceration the very day the people’s government takes over power from the incumbent.
Moreover, this victorious day was also down to the sacrifices made by the future young people of our beloved country, who perish at sea sacrificing their lives making horrendous journey to the shores of Europe and those who make it are often treated as ‘slaves’, ‘poor wretches’, or subhuman beings,1 all in search of greener pasture to better their lives and that of their families and loved ones. In addition, study found that most of these young people are medium skilled-secondary education 9-12 years of schooling (Cf.OECD, 2006).2 Sadly, these young people died needlessly because they felt alienated by Jammeh’s dictatorship government off 22 years that failed to address the extreme poverty, desolate economic conditions and unemployment and political persecution. Furthermore, the wider desolate economic conditions of the Gambia and the wider continent of West African in particular and Africa in general was the failure of Jammeh’s dictatorship government not coming together with other leaders to fight against industrialised Western countries selfish external trade policy with the World Trade Organisation (WTO).
We must also not forget to recognise the contributions of all the Gambians Online Radios and media organisations in the diaspora, who spearheaded our struggle for liberation from the tyrannical dictator and also worked tirelessly day in day out to give voice to the voiceless Gambian people both at home and abroad.
Now moving on to address the way forward achieving justice for the victims and their families in order to bring about reconciliation.
Gambian people have lived under the umbrella of fear, oppression, and had their freedom of speech, expression heavily restricted for two decades, therefore, it is vital that the security and safety of the people are addressed first because without which victims and their perpetrators cannot engage in any meaningful discussion and that may hamper reconciliation.
The Government of Yahya Jammeh and some of his security agents and militia men have committed heinous crimes and engaged in serious human rights violations, such as rape, execution of hundreds of civilians and political prisoners, the students’ massacre of 2000, discrimination against a particular tribe (violating 1966 Convention on the Elimination of All Forms of Racial Discrimination (CERD),3 and inhuman treatment, arbitrary detention of civilians and opposition figures, torture against those who opposed his government(violating 1984 Convention against Torture and other cruel, inhuman or degrading Treatment or Punishment(CAT),4 and enforced disappearance. Sadly, these people cannot be tried by the International Criminal Court (ICC) because Gambia is no longer a signatory to the Rome Statute of the international Criminal Court (“the Rome Statute”),5 therefore the court lack the jurisdiction to indict and prosecute for the violations of international and human rights laws.
In the meantime the Coalition Government should move swiftly without hesitation in collaborating with international partnerships to seek for the freezing of all the assets and finances of anybody who took part in the incitement, instigation and the violations of international and human rights laws during the past two decades of Jammeh’s rule. Secondly, it should make sure that no individual enjoys impunity for such heinous crimes and human rights violations on the account that they are Head of state or senior members of the Government because that will seriously undermine reconciliation in the country.
In order to heal the wounds of the families and victims of the students killed and tortured during the 2000 peaceful demonstration, who have lost loved ones, and whose loved ones have disappeared into thin air and the families of the young people who perished at sea fleeing the adverse poverty and desolate economic conditions of the country.
Furthermore, to also address the deep seated division within the country, the Coalition Government should facilitate a full conflict settlement and not only stop at only halting direct violence as suggested by some commentators because that will shift it to indirect violence in the form of social exclusion of certain tribe(s) or people, who might have allegedly committed crimes, discrimination and inequality. This might lead to it becoming covert for a while and then reappear as an overt conflict in the future, and reason would be because the person who had experienced the suffering has not been properly addressed.6
In support, Des Forges (1999, pp.568; 575)7 argue that the exercising of justice in the aftermath of long period of commission of serious crimes like in the Gambia for 2 decades, is not only morally and legally right, it is essential for peace.
Therefore to achieve peace, unity and true reconciliation in the country corrective justice seems to be a better option.8 However, this approach may not be a perfect way to achieve restoration of the country but it will respond better to the needs of victims than justice only based on retribution and deterrence.9 Corrective justice requires that the perpetrator compensate the victims for the wrong that he or she has inflicted.
In a way it places both the victim and the perpetrator back in their original position. Compensation could be either material or financial.10
There are two ways to go about this; firstly, the Coalition Government to ratified the Rome Statute of the International Criminal without any delay and request from the Secretary General of the UN the creation of a Special Tribunal or Court similar to the Special Tribunal for Lebanon and Special Court for Sierra Leone all established by the United Nations. These institutions are similar in many ways to the earlier institutions of International Criminal Tribunal for the former Yugoslavia (ICTY)11 and the International Criminal Tribunal for Rwanda (ICTR),12 established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter. Further, to also request that those charged with any involvement in the commission of the alleged heinous crimes and human rights violations be tried by a tribunal or special court that is of an “international character”, and help in identifying the nature and scope of the international assistance needed in this area.
Secondly, to establish a “Commission of Inquiry and Tribunal”, whose task would be to investigate violations of human rights and heinous crimes committed for the past two decades and prosecute the persons responsible for them. We have to ensure that the people who will head the commission of inquiry and tribunal are people of integrity, and have the support of the victims in particular and the public at large. They must be show impartiality and professionalism in their facts finding and proceedings, and the inquiry must not elicit empathy for the perpetrators or be sympathetic. The inquiry must ensure not to engage in unilateral approach because that’s what led to the criticism of the Rwandan Government in 2003 for only investigating crimes committed by Hutus during the 1994 genocide but not the Tutsis rebel revenge killings.13
The inquiry in delivering justice can adopt the model system devised by the Rwandan government in the aftermath of the 1994 genocide, for trying genocide cases, although the crimes committed in the Gambia are human rights violations, by using both conventional domestic courts and Gacaca (literally meaning “grass”) – a community based dispute resolution model but which drew heavily on a more conventional model of punitive justice.14 Its objectives included not only delivering justice but also strengthening reconciliation, revealing the truth about the genocide (in this case revealing the truth about heinous crimes and human rights violations committed in the Gambia).15These domestic judicial systems were concurrently operating alongside the ICTR.
Human Rights Watch in 201116 carried out a study on the progress of justice in Rwanda after 20 years, the study found that the gacaca courts did galvanised local communities participation and gave victims the opportunity to learn what had happened to their relatives. Also, the study found that the Gacaca courts did helped some victims find a way of living peacefully alongside perpetrators and that reconciliation is taking hold in Rwanda today.17 However, critics argued that despite the achievements of the gacaca courts, in its early years lack the safeguards against abusive prosecutions in a weak judicial system which resulted in unfair trials, and also the inability of the accused to effectively defend themselves, intimidation and corruption of defence witnesses, judges and other parties; flawed decision making due to inadequate trained judges to handle complex cases.18
To prevent the Gambia from such criticism leveled against the Rwandan government Gacaca and domestics courts, the Coalition Government should ensure that they rebuild the crumbled judiciary and justice systems, including having adequate good lawyers, judges to mention a few, and also have safeguards and laws that are able to prosecute such alleged crimes and human rights violations.
1 Cf. Simon, C. (2006): Le Maghreb, espace d’immigration. Le Monde, December 15, 2006
2 Cf. OECD 2006:142‐43; Gubert 2005; Sall 2005; Haas 2005: 1274‐78
3 660 UNT 195
4 1465 UNT 85
5 United Nations: Rome Statute of the International Criminal Court, U.N. Doc. No. A/CONF.189/9 (July 17, 1998)
6 Kelman, H., 2010. Conflict Resolution and Reconciliation: A social psychological perspective on ending violent conflict between identity groups. Landscapes of Violence, 1(1), 1-9)
7 Des Forges (1999). Leave None to Tell the Story. Genocide in Rwanda. Human Rights Watch
8 Lea Brilmayer, International Justice and International Law, 98 w. VA.L.Rev.611
9 Ibid. at 618
10 Lea Brilmayer, International Justice and International Law, 98 w. VA.L.Rev.611
11 Resolutions 808 and 827(1993)
12 Resolution 995(1994), S/RES/955(1994),November 8, 1994 Available at: http:www.unictr.org/portals/O/English%5CLegal%5CResolutions%5CEnglish%5C955e.pdf.[Accessed 03/12/2016]
1313 Penal Reform International, 2010. Eight years on….A Record of Gacca Monitoring in Rwanda. London: Bell and Bain p.43
1412 Richters, et al., 2005. Reconciliation in the aftermath of violent conflict in Rwanda. Intervention, 3 203-221, p.206.
15 See Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda, 2008. Available at: http://www.hrw.org/report/2008/07/25/law-and-reality. [Accessed 02/12/2016]
16 Law and Reality: Progress in Judicial Reform in Rwanda, July 26, 2008. Available at:http://www.hrw.org/report/2008/07/25/law-and-reality, and Justice Compromised: the Legacy of Rwanda’s Community – Based Gacaca Courts, May 31, 2011. Available at: http://www.hrw.org/reports/2011/05/31/justice -compromised-0. [Both Accessed on 5/12/2016]
17 Law and Reality: Progress in Judicial Reform in Rwanda, July 26, 2008. Available at:http://www.hrw.org/report/2008/07/25/law-and-reality, and Justice Compromised: the Legacy of Rwanda’s Community – Based Gacaca Courts, May 31, 2011. Available at: http://www.hrw.org/reports/2011/05/31/justice -compromised-0. [Both Accessed on 5/12/2016]
That is absolutely a well written article.The peoples power won, but right now at the moment as I am writing this, news from the state house has it that yaya jammeh is reluctant to step down come January. He is having a meeting with his security personnels.The Gambian peoples have spoken, but one man, one man is still toying with their emotions as well as their intelligence.We must warn and we are warning yaya jammeh that if he can go with his sinister plot of defrauding and hijacking the WILL of the Gambian peoples, he will do so at his own peril.The WILL of the peoples MUST be respected.We are ready and have been ready to counter any force with equal or more brute.We have listened to the Gambian peoples in terms not throwing the country into any chaos, but yaya jammeh has an understanding tonight seems to be heading to that direction.We will humiliate him in front of the whole world again,AND THIS TIME HE WILL BE BEGGING FOR HIS LIFE…STANDBY GAMBIANS AND THE REST OF THE WORLD.WASALAM