By Foday Samateh
Ever known for his histrionics and theatrics as a loquacious minister in Yahya Jammeh’s military-turned-civilian dictatorship, Yankuba Touray was in full character when he appeared as a witness before the Truth, Reconciliation and Reparation Commission (TRRC) to testify to human rights violations from 1994-1996 (the first two years of the twenty-two-year-atrocious regime). He pulled a Botha. Like the Apartheid-era South African president, he refused to testify before the truth and reconciliation commission. Never mind that a stream of witnesses including household names had already appeared before the TRRC to give sworn testimonies to the crimes they inflicted or suffered. Never mind that victims and violators alike mentioned Yankuba Touray, among other regime enablers and enforcers, for participating in extra-judicial executions and other heinous, degrading treatments of people who found themselves at the wrong end of lawless power. And never mind that violators who are presumed to have committed far more and far worse crimes than him came forward in open hearing to tell the Commission and the nation at large their roles in the regime’s criminal past.
His appearance at the TRRC provided a moment of national jaw-dropping. To Yankuba, though, he scored something worthy of a standing ovation. The air of defiance and the self-indulgence he betrayed left little doubt he was at heart a showman who was thrilled with putting on the biggest performance of his life. Whether his act was motivated by a villain’s misplaced sense of a hero’s daring conviction, this piece will leave that to those better qualified — psychologists and other human behaviorists — to determine.
His refusal to testify on the claim that the 1997 Constitution grants him immunity not to do so predictably provoked a firestorm of outrage. What was less predictable was the general misunderstanding about the Constitution, not just among the public, but also some media outlets and some lawyers who, instead of helping to clarity the confusion, added to it by making up stuff about the Constitution. The public’s want of civic understanding of the Constitution renders useless the National Civic Education Council that was billed to “sensitize” the populace into a nation of Aristotles. It exposes the futilities of the utopian pretensions in the current Constitution and many more that are being considered for the new Constitution that’s being drafted. The country’s education system, too.
Back to the scene at the TRRC. After Yankuba took the oath but refused to answer the Lead Counsel’s questions by invoking constitutional immunity, the exchange they had revealed a few things. First, the Commission wasn’t taken off guard Yankuba might do what he did. The Commission Chairman’s prepared statement in which he ordered Yankuba’s arrest proved that. Still, the Commission did itself a world of good by subpoenaing an unwilling witness who is credibly accused of taking part in unlawful executions, among other shocking deeds, to state on the record and to a live national audience his refusal to own up to his alleged crimes.
That said, the rest of the proceeding became murkier from then on. Both the Chairman and the Lead Counsel advanced no argument that Yankuba’s claim of constitutional immunity was a total figment of his imagination. The essence of their dispute of Yankuba’s claim was three-fold. First, the immunity he claimed didn’t apply to his testifying before the TRRC. Second, even if they were to accept his claim, the immunity didn’t cover all the human rights violations from 1994 to 1996 in which he had been implicated. And third, he was legally bound by the subpoena to answer the Commission’s questions that didn’t directly impinge on the immunity he claimed.
In attempting to substantiate the Commission’s case for the record against Yankuba, the Lead Counsel made two very weak arguments. When Yankuba initially stormed out of the session to the witness room, the Lead Counsel cited Section 125 of the Criminal Code, Vol. 3, of the Laws of The Gambia, thus: “When a person appearing either in obedience to a summons or by virtue of a warrant or being present in court and being verbally required by the court to give evidence: (a) refuses to be sworn or affirmed; (b) having being sworn or affirmed, refuses to answer a question put to him or her; (c) refuses or neglects to produce a document or thing which he or she is required to produce; or when lawfully required to do so refuses to sign his or deposition, without any such case offering any lawful or reasonably sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days and may in the meantime commit the person in prison unless he or she sooner consents to do what is required of him or her.”
The Lead Counsel was correct to point out “The Commission has powers that are akin to the High Court,” thanks to section 202 subsection (2) of the Constitution. But there is the small matter of section 205 of the Constitution: “A witness before a Commission of Inquiry shall be entitled to the same immunities and privileges as if he or she were witness in proceedings before the High Court.” If Yankuba can claim immunities before the High Court, then the Constitution confers on him the same right to do so before the Commission.
The second weak argument occurred after Yankuba returned to the hearing room and took his oath but refused to testify by insisting on constitutional immunity.
Lead Counsel: “Mr. Touray, I warn you that this is not the place to raise the issue of immunity. If you want to raise immunity claim, you take it to the High Court. [Yankuba attempting to interject.] Let me just finish. This is a truth commission. Is not a civil or criminal proceeding. It is in fact not a legal proceeding. So, the claimed immunity doesn’t apply to a fact-finding mission by the Commission of Enquiry.”
Yankuba: “Counsel, I still stand by my position that I invoke the constitutional immunity. The Constitution is the supreme law of this country. Any proceeding that is against the 1997 Constitution I’m not going to testify, and I will not answer any questions.”
Lead Counsel: “You may want to hide behind that Mr. Touray. [Yankuba interjecting, resulting in overlapping voices and the Lead Counsel reigning in the witness.] I will not enter into a legal debate with you as to whether immunity applies here or not. I would proceed to ask my questions and would remind you that it is an offense under the laws of the Commission under the TRRC Act for failing to answer questions by the Commission. You understand?”
Yankuba: “I understand.”
Lead Counsel: “Thank you.”
Yankuba: “I have gone through your laws and your rules of procedure. [Lead Counsel interjecting] Counsel, please let us not prolong this issue in the sense that I have appeared. When you asked me whether I’m going to appear and testify, I made it clear that I’m going to appear. So, the issue of testimony before this Commission is out. And I don’t recognize the legitimacy of this Commission when I have constitutional immunity. [The Lead Counsel interjecting.] I’m not going to continue further. [The Lead Counsel interjecting.] You may also use all your legal tools and then we will proceed and see. I thank you.”
Lead Counsel: “Mr. Touray, [Yankuba rises from the witness chair] Mr. Touray, may I inform you that under section 125…”
Yankuba stormed out a second time to the witness room and was put under arrest on the order of the Commission Chairman.
As many people have said, Yankuba should have done the honorable thing. He should have emulated the example of his former junta colleague Sana Sabally and fessed up to any crimes and human rights violations he had facilitated and participated in before the Commission and asked for forgiveness. He chose not to do so. That was his prerogative. In invoking a claim of constitutional immunity, he had, intentionally or not, put our Due Process and rule of law on trial. How does a country that claims to be democratic treat an apparently unrepentant individual who is credibly accused of gross human rights violations when he claims immunity from answering to the law thanks to the most obnoxious and repugnant section of the supreme law — namely, section 13 of Schedule 2 of the 1997 Constitution? Does he have rights and immunities the judicial system must recognize when the public is screaming for his blood?
At this stage, it is pointless to engage those who are still asserting that the Supreme Court had rule the Indemnity Clause unconstitutional in 2001 and that it therefore no longer exists. At the risk of buttressing the obvious, the Supreme Court has no power to rule a constitutional provision unconstitutional. Those who still maintained that the Indemnity Clause was never in the Constitution when the public voted for it in 1996 should take a look at the draft copy that was put up for referendum that year. All the Supreme Court did in 2001 was rule against the National Assembly’s amendment to section 13, and not the original section 13 itself.
The TRRC’s objection to Yankuba’s claim of immunity is unsustainable. The Commission cannot on the one hand say it is not a legal proceeding, only a fact-finding mission; and on the other hand, contend that it has the powers of a High Court and can avail itself of the injunctions of the criminal code and other punitive laws as courts do. If the Commission wants to have it both ways under its constitutional authority, are witnesses not entitled to invoke rights and immunities before the Commission as they would in a court proceeding? Furthermore, the facts the Commission is investigating potentially expose witnesses who are implicated in human rights violations to legal consequences down the line. Violators’ testimonies to the Commission are not dissimilar to criminal suspects speaking to the police. Neither is a court proceeding, but the evidence and facts that lawfully result from these investigations are admissible in court in the absence of immunity for giving such evidence and facts.
The Yankuba Touray episode was little of the TRRC’s making. The Commission had to play the hand it was dealt — the TRRC Act. If the finger must be pointed, it must be directed at those responsible: The Ministry of Justice that drafted the Act, the National Assembly that passed the Act, and the President who signed it into law. All three knew about the Indemnity Clause in the Constitution prohibiting any investigation into the military takeover and rule, and still went ahead mandating the TRRC to investigate that period. The Commission had largely succeeded in its investigation into that period only because many of the witnesses had not done what Yankuba Touray did.
The proper thing — the constitutional thing — to do would have been setting up the TRRC to begin investigating human rights abuses from 1997 to 2016 while a new Constitution is drafted. Once a new Constitution comes into being abrogating the 1997 Constitution, and with it the Indemnity Clause for the treasonous military takeover and rule, the TRRC Act can simply be amended to include that period. Better still, launch a criminal investigation into that period. A year was enough to draft a new Constitution. Why three whole years? The Americans took only three months and theirs still works like magic after two centuries and counting.
Yankuba fired the first salvo, if you will, at not just the TRRC but also the justice system. Irrespective of the validity of his claim, he was bound to incur some form of legal response. And as a top official of the former regime, he should know the enormous power at the disposal of a government to retaliate or settle scores under the cover of law.
The suspense ended with a murder charge. The particulars of offense state: “Yankuba Touray…with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with a pestle-like object and other dangerous weapons thereby committing an offense.” The Attorney General and Minister of Justice delivered on his vow to vehemently make an example of Yankuba. The general reaction, as usual in things of this nature, was excitement. Once upon a time, the former regime had perfected the art of stoking public emotions and passions in the name of the public good when they were in fact pursuing narrow, partisan agenda. And it wasn’t too long ago when the regime’s commissars and mandarins were showered with confettis, laurels and rose petals of patriotism. Now they are seen for what they truly had always been. Power is the ultimate optical illusion.
The Attorney General’s move should, on close scrutiny, invite more skepticism than enthusiasm. Of all the alleged crimes Yankuba had been adversely mentioned in as a participant, why did the Attorney General charge him with the only thing that cannot plausibly be covered by the claimed constitutional immunity? Is that a tacit acknowledgement on the part of the Attorney General that the immunity claim isn’t unfounded?
All that aside, the murder charge itself raises grave questions. If the Attorney General had the facts and the evidence to file charges regarding the former finance minister’s murder all along, why hadn’t he done so until now? The whole world knows a number of people were implicated in Koro’s murder, and Yankuba wasn’t even the principal culprit. One of the culprits testified as much before the TRRC. If the prime objective here is bringing to book those culpable in Koro’s murder, rather than the plainly petty motive of bringing to heel a defiant witness in an unrelated matter, all the culprits would have been charged in accordance with their roles in the capital offense. Those who cooperated with the prosecution would be considered for lenient sentences while those who refused to cooperate and are found guilty would receive the maximum penalty. In this case, the Attorney General didn’t just charge Yankuba with being an accessory or an accomplice to the murder, but the sole accused who caused the death of Koro. In other words, Yankuba struck the fatal blow at Koro.
It’s no accident that no mention was made of accomplices. God knows, had Yankuba agreed to testify before the TRRC, the Attorney General wouldn’t have dashed off to the High Court to charge him with Koro’s murder. And the Attorney General’s key witnesses against him will be none other than accomplices. Why are they also not answering for their roles in Koro’s murder?
To use Koro’s murder for prosecutorial vendetta is an utter travesty. It’s a cynical cheapening of his death, a cavalier debasement of the sanctity of justice, and an ignoble use of the authority of the Attorney General.
In the name of prosecutorial discretion, the Attorney General embarks on a malicious prosecution. This is not how a democracy that boasts of its rule of law should conduct itself. Until the charge sheet is amended to include all those responsible for Koro’s murder, call the singling out for prosecution of Yankuba Touray what you want. But not justice. Not for Koro Ceesay. And not for The Gambia.
Ends