Let me go straight to the point: TRRC was set up simply because we endured an autocratic rule which was notorious for massive violations of human rights. The foremost instrument of violations was the Junglers. The Junglers were terrorists of the most notorious degree. Until now each and every Gambian feared that the Junglers posed a clear and present danger if they are not contained. While the Junglers must and will face justice the Government on its part must be seen to be in line with the idea, the process and the objective of the transitional justice process.
TRRC is the foremost institution at the top of the transitional justice process to ensure truth telling as a right of victims and the basis for justice. Therefore, so long as the TRRC is going on it means other inquiries, detentions and prosecutions of the human rights abuses between 1994 – 2017 would have to be suspended until the truth commission is done. If they are done, then they must be in support of the TRRC process. This is because the whole idea of the TRRC is to expose the truth about that Yaya Jammeh Regime as a first step in order to bring about justice, reparations and reconciliation. Hence so long as TRRC hearings are ongoing we cannot at the same time arrest, detain and prosecute people for the crimes they committed when those same crimes are the subject of the TRRC enquiry.
In light of this no one should have been arrested in the first place. Rather everyone should be encouraged to come forward to speak the truth about one’s experience, commissions and omissions. The TRRC Act has stated that it can even order any individual to testify and it is a criminal offense to refuse to testify or give false testimony for which one is liable for prosecution. Therefore, so long as one has not refused to testify or provided false testimony then it will be difficult to justify arresting or detaining such a person regardless of his crime.
From that perspective I think the Minster of Justice is right that these Junglers be released. Failure to release them means holding them beyond what the law provides which is 72 hours maximum. By holding them without trial for more than the constitutionally required time limit means the rights of these people are being violated. In that case we would have succeeded to make perpetrators become victims since their rights are damaged due to prolonged detention without trial. We should avoid such violation in the new Gambia ever again. Human rights must prevail at all times regardless of who is involved. We cannot do to Junglers what they did to us. We must only make them face justice.
Much as the Junglers had indeed committed heinous crimes it will be difficult to justify their continued detention unless if we can prove that they indeed pose actual danger to society. Therefore, where the authorities decide to keep them under custody then it means the Government should prosecute them since these people cannot be held under detention indefinitely. But then the Government cannot prosecute them at the same time as the TRRC process is also ongoing. We expect that at the end of the truth telling process the TRRC will make recommendations to determine the fate of all witnesses including the Junglers. If the TRRC came to recommend that Junglers be prosecuted when the Government had already prosecuted them then how will we address that situation? Remember that an individual cannot be prosecuted twice for the same crime.
In one sense, one may argue that if there was any error on the part of the Government was to have arrested these Junglers in the first place. But on the other hand, given the circumstances at the time one could also argue that it made sense to arrest these Junglers immediately because they could be considered ‘enemy combatants’ given nature and association with Jammeh. Secondly and very importantly it is because they were arrested first that we have succeeded to get some of them testify.
The question now is for how long will they be detained or will they be prosecuted before TRRC concludes. Certainly, since there is a TRRC process it will not make sense to prosecute them before that process is complete. Secondly given that the existing law in regard to detention, whether in the Constitution or the Army Forces Act is not favourable, it meant the only solution would have been to create a new piece of legislation to legalise and legitimise their continued detention. But could the creation of such a new law be legitimate and necessary?
Usually such piece of legislation is used in situations of warfare so that enemy combatants or prisoners of war could be detained for indefinite periods. The Geneva Conventions provide for such conditions of detention but even there prisoners of war have rights including fair trial. But we are not in a state of war. Secondly I do not think we should take the path of the US where they detain people at Guantanamo indefinitely without trial and defend that by claiming that they are ‘enemy combatants. We have seen how the US is under severe pressure for that action. It appears the continued detention of the Junglers would look like the Guantanamo situation. That is not a tenable position.
The part of the argument I do not buy is to say that by releasing these Junglers who testified will encourage others to also come forward. The testimony of Ismaila Jammeh clearly shows that not even all those under custody would testify the truth much less those who have never been captured. I think there are some Junglers who are prepared to face firing squad than to testify or testify truthfully. Hence what is important is for the Government to seek other means to get these Junglers to either testify or seek their capture and prosecution when the TRRC has finished its work.
While their arrest indeed turned out to be beneficial given their testimonies so far yet having kept them for almost three years also means Junglers posed no more threat to society. We are yet to see any assault on the Gambia by the Junglers at large. Furthermore, the testimonies of Malick Jatta, Omar Oya Jallow and Amadou Badji have in fact further weakened the Junglers and put more pressure on them. In that case releasing these Junglers becomes necessary and critical in obtaining more truth and closure.
I think what we need to monitor more closely is that the Government puts in place all necessary safeguards to ensure that these Junglers do not escape or pose any more danger to society when they are released. But even where they escape, we should bear in mind that there is no safe haven for international crimes such that anywhere they go in this world they will be on the run and hiding. In most countries of the world they will be arrested and extradited back to the Gambia or tried in that country as we see with Ousman Sonko in Switzerland. This is the obligation that international law imposes on all countries of the world. Therefore, in the final analysis Junglers will have to face justice.
Looking at this very sensitive issue from another perspective is that failure to release these Junglers means the Government will now have to justify why it should therefore not also arrest, detain and prosecute Alagie Kanyi, Pa Senghore, JCB or Alagie Martin among other torturers and killers who are free in their homes and offices when they have also testified in committing international crimes. Even though the Junglers had indeed tortured and killed many more people yet those who also killed even one life cannot be left off the hook.
In conclusion, I think citizens need to do lot of reflection and analysis of the big picture as to how to go forward. We must agree that so long as the TRRC process is unfolding there cannot be detention and prosecution of people for the same crimes they are confessing before the TRRC. It is either we stop the TRRC process and prosecute all perpetrators or we let all perpetrators first testify without detention so that TRRC determines, at the end of the day, who will be prosecuted or given amnesty among other forms of justice. But we cannot have both processes going on at the same time.
In that case I think we must all trust the TRRC to deliver as per the very objective of the transitional justice process. For that matter what is required of citizens is to become eternally vigilant to ensure that when the TRRC provides its recommendations to the Gambia Government those recommendations are implemented on time and in full. We must bear in mind that the very future of the Gambia rests on the TRRC process hence we must take a position that facilitates truth telling and prevents undermining the integrity and credibility of the process. Truth commissions are mechanisms of bringing out the truth in order to not only ensure justice but also restore rights and dignity of individuals and help a society to reform and rebuild after having undergone a violent conflict or authoritarian rule.
Victims and the rest of citizens must have confidence in TRRC and the transitional justice process. The fact that we have received such highly truthful testimonies from the first three Junglers at least should serve as a significant achievement for justice and closure. It is indeed a painful idea that angels of death such as these Junglers could live in our society freely and openly even for a short period while victims are crying and grieving. But if we recognise and appreciate where our society came from and what it needs to do in order to be better and ensure justice then we must massage our hearts and reflect deeply to realise that it will take lot of painful decisions before we reach the desired destination.
In light of these issues highlighted above I wish to stand with Minister Aboubacarr Tambadou that it is a right decision to release these Junglers now.
For the Gambia Our Homeland
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Madi Jobarteh
Ends