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Wednesday, September 27, 2023

Accountability for Yahya Jammeh administration: The Gambia-Ecowas court

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By Owiso Owiso & Sharon Nakandha

January 2023 marked six years since former President of The Gambia Yahya Jammeh fled the country for Equatorial Guinea following an unexpected electoral defeat to the opposition coalition led by Adama Barrow. This political transition forced The Gambia to embark on an unprecedented transitional justice process heralded by the establishment of the Truth, Reconciliation and Reparations Commission (TRRC), tasked with “creat[ing] an impartial historical record of violations and abuses of human rights from July 1994 to January 2017.” The TRRC Act mandated the Commission to, among other things, initiate and coordinate investigations into violations and abuses of human rights, gather information and evidence, identify all persons, institutions and organizations involved, and make appropriate recommendations.

After three years of mostly public hearings, the TRRC presented a detailed 16-volume report (TRRC Final Report), which detailed international crimes committed by the Jammeh regime, including acts of torture, cruel, inhumane and degrading treatment, enforced disappearance, extrajudicial killings, arbitrary detentions, and other gross violations of human rights. For the identified crimes, the TRRC recommended the prosecution of members of Jammeh’s administration allegedly responsible for these crimes, including Jammeh himself.

The Gambia has already begun efforts to ensure criminal accountability for those deemed most responsible for the crimes committed under the Jammeh administration between 1994–2017 as identified in the TRRC Final Report. There is now a unique opportunity to continue that work under a proposed criminal mechanism that would operate under the auspices of the Economic Community of West African States (ECOWAS), which would help to mitigate some of the challenges of purely domestic prosecution and allow ECOWAS and the African Union (AU) to live up to their promises to victims of mass atrocities in the AU transitional justice policy framework.

The Gambia’s efforts at holding Jammeh accountable

Over the last two years, The Gambia has taken steps to realize the accountability recommendations of the TRRC. In May 2022, the Ministry of Justice published the Government White Paper on the Report of the Truth, Reconciliation and Reparations Commission (White Paper) in which it accepted, inter alia, the TRRC’s recommendations on justice and (criminal) accountability, including the recommendation to prosecute Jammeh and other members of his administration (para. 35). The government indicated the initial steps it had taken to establish a Special Prosecutor’s Office and a special investigative unit “to carry out criminal investigations geared towards the prosecution of those who bear the greatest responsibility for the human rights abuses and violations” as identified in the TRRC Final Report, and also committed to establish a special court within the domestic judicial system with jurisdiction over the crimes identified in the TRRC Final Report.

In May 2023, the government released an Implementation Plan in which it indicated its intention to establish a special mechanism (“an internationalized judicial framework”) to undertake criminal trials between 2023–2027. This is envisioned as a hybrid-internationalized court established jointly by treaty between The Gambia and ECOWAS. While this judicial mechanism will be part of the domestic judicial system, it will be “internationalized” in the sense that it will be anchored in both domestic and international law (treaty with ECOWAS) and will have international elements including the subject matter (international instruments as the substantive basis of the crimes to be charged) and possible involvement of international personnel.

Legal bases for ECOWAS intervention

Ecowas is an inter-governmental organization which, as a matter of general international law, has international legal personality. This capacity, also expressly recognized in Article 88(1) of the 1993 Revised Treaty of ECOWAS, enables the regional body to engage as a legal subject on the international plane and to interact with other international law subjects.

One of ECOWAS’ fundamental principles as recognized in Article 4(g) of the 1993 Revised Treaty is “recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights”. Furthermore, Article 56(2) of the 1993 Revised Treaty obligates member States who are also States Party to the African Charter on Human and Peoples’ Rights to cooperate to ensure the realization of the Charter’s objectives. Notably, all ECOWAS member States are party to the African Charter. ECOWAS is therefore generally competent to engage on issues related to human and peoples’ rights, which competence is strengthened by ECOWAS member States’ commitment under Article 58 of the 1993 Revised Treaty to establish and strengthen “appropriate mechanisms for the timely prevention and resolution of intra-State and inter-State conflicts.”

Specific to intervention, Article 25 of the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace–Keeping and Security (Lomé Protocol) empowers ECOWAS to intervene, among others, “in the event of serious and massive violation of human rights and the rule of law.” ECOWAS therefore has the mandate to engage with and intervene in member States in the event of massive violations of human rights, either on its own initiative or upon invitation by a member State. Of course, this legal provision does not expressly list criminal accountability mechanisms as an intervention measure. However, the Lomé Protocol does not limit the range of options available to ECOWAS when intervening, but rather empowers the Mediation and Security Council to “consider several options and decide on the most appropriate course of action to take in terms of intervention” (article 27). This provision is therefore open-ended enough to allow the ECOWAS Mediation and Security Council discretion to determine the appropriate intervention method for addressing “serious and massive violation of human rights and the rule of law,” and this could be a criminal accountability mechanism. It would, in any case, be illogical to empower ECOWAS to intervene “in the event of serious and massive violation of human rights and the rule of law” and not envision such intervention as possibly including accountability mechanisms for these violations.

ECOWAS’ intervention powers therefore include a power to establish accountability mechanisms for ensuring redress for “serious and massive violation of human rights and the rule of law” by the Jammeh administration. Relying on the international law doctrine of implied powers, it is therefore possible to determine, from the express and general provisions of the 1993 Revised Treaty and 1999 Lomé Protocol discussed above, the full extent of ECOWAS’ powers, in this case, the power to deploy a criminal accountability mechanism as an intervention “in the event of serious and massive violation of human rights and the rule of law.”

As a sovereign State, The Gambia has an inherent sovereign prerogative to request assistance from an inter-governmental organization such as ECOWAS, including by inviting ECOWAS to intervene through the establishment of a tribunal to investigate and prosecute those who hold the most responsibility for international crimes allegedly committed during Jammeh’s 22-year administration. Empowered by general international law and its legal framework as highlighted above, ECOWAS would be competent to accept an invitation from The Gambia to establish the Special Court under a treaty between both parties.

ECOWAS has played an active role in The Gambia since the 2017 political impasse when it launched  the Military Stabilization Mission in The Gambia (ECOMIG) to ensure the stability of the country during the democratic transition and to protect the country’s fragile democracy. This proposed “internationalized” tribunal therefore provides ECOWAS with the opportunity to continue to live up to its principles of, among others, recognizing, promoting, and protecting human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.

Why an ECOWAS-supported court is necessary

The Gambia’s current legal and political realities may negatively impact a purely domestic accountability process. In an effort to consolidate his political support base, Barrow cozied up to Jammeh’s (former) political party ahead of the December 2021 presidential election, which he won, and even formed an alliance with a faction of the party ahead of the 2022 parliamentary elections. This is a clear sign that political concessions will likely determine the direction Barrow’s government takes on the question of criminal accountability for Jammeh and other high-ranking individuals behind the past atrocities and human rights violations in the country. The internationalized model backed by ECOWAS would therefore enable The Gambia to mitigate certain political, legal, and security challenges.

The backing and support of an assertive regional organization like ECOWAS is critical as The Gambia’s judiciary continues to hold the line even in the face of mounting political pressure. Whereas judges are now relatively independent and assertive, commencing criminal prosecutions domestically against former high-ranking state officials can be exceptionally challenging and requires, at the very least, significant political goodwill and financial and human resources. The support of ECOWAS will motivate the judiciary to continue pushing the accountability ethos and standards as highlighted in recent decisions such as Case No. SC. NO CR/001/2020, in which the Supreme Court declined to recognize a claim of immunity from TRRC testimony by Yankuba Touray, a former senior junta member, who was subsequently prosecuted and convicted by the High Court on July 14, 2021, for the gruesome murder of former Finance Minister Ousman Koro Ceesay, which conviction was upheld on appeal.

The legal complexity of investigating and prosecuting international crimes at the national level cannot be underestimated. As The Gambia’s Ministry of Justice has rightly indicated,  the international crimes in question, namely torture and other cruel, inhuman or degrading treatment or punishment, enforced disappearances and crimes against humanity, have not been domesticated in The Gambia. As such, their prosecution under purely domestic legal processes may lack a procedural legal basis, or at least present some legal hurdles. Since The Gambia is already a State Party to international legal instruments which proscribe the alleged acts of the Jammeh regime, some of which are also considered to be jus cogens norms, these crimes already have a substantive legal basis recognized by The Gambia. Anchoring such prosecutions in a treaty between The Gambia and ECOWAS would therefore be a step towards addressing the procedural challenge presented by lack of domestication.

The fact that some of the crimes allegedly committed by the Jammeh administration had transnational elements may also present its own unique set of legal and political challenges. In particular, Jammeh’s administration is accused of crimes against humanity targeting migrants from Ghana, Senegal, Nigeria, Liberia, Cote d’Ivoire, Sierra Leone, and Togo (TRRC Final Report, vol. 12). These directly affected states could individually establish jurisdiction over the crimes committed against their nationals. However, it is arguably much more effective and in the interests of a coordinated response if they “pool” together their “jurisdictions” and support The Gambia’s request for ECOWAS assistance. The established court would therefore have jurisdiction over a more expansive list of crimes, have transnational legitimacy, galvanize regional political goodwill, and send a more powerful symbolic message that these international crimes are of concern to the entire region.

Further, ECOWAS’ political goodwill and support is important given the high-profile nature of the alleged perpetrators. It could contribute to guaranteeing the Court’s security and independence from influential actors domestically and beyond, who may disrupt the proposed accountability process. As highlighted above, Barrow currently has a standing political alliance with Jammeh’s political party. Additionally, despite the collapse of Jammeh’s administration in 2017, many of his alleged accomplices still work in the security and intelligence services. As such, there still exist political and security risks for the proposed Court, especially if based in The Gambia. Mitigating these risks could even mean locating the Court outside The Gambia but within ECOWAS, a possibility envisioned in the White Paper on the TRRC Report if necessary, “based on the exigencies of each case … [and to] balance the need to prioritize local ownership and victim participation with security concerns and witness protection requirements” (para 20).

Will Equatorial Guinea extradite Jammeh?

The success of the Court would, of course, depend in part on Equatorial Guinea – where Jammeh has been a guest of President Teodoro Obiang Nguema Mbasogo since 2017 – extraditing Jammeh to wherever the Court will be located. Recent media reports indicate that Equatorial Guinea is considering forcing Jammeh out of the country. However, considering the very close relationship between Jammeh and Obiang, one of the world’s longest-serving authoritarian leaders, such reports should be taken with skepticism.

Apart from the political dynamics of Obiang and Jammeh’s close relationship, extradition to The Gambia may be further complicated by the fact that Equatorial Guinea does not have an extradition treaty with The Gambia. However, Article 7 of the Convention against Torture – to which both States are party – imposes an obligation on Equatorial Guinea to either extradite to a State with jurisdiction or prosecute persons suspected of committing the crime of torture. Arguably therefore, as a party to the Convention, Equatorial Guinea cannot rely on the lack of an extradition treaty (which governs procedural aspects) as an excuse for not performing its substantive obligations under the Convention.

In cases concerning torture, as are indeed the alleged crimes of the Jammeh administration, it is also possible for some third States, particularly States Party to the Convention against Torture, to facilitate criminal accountability even where the alleged perpetrators are not present on the territories of these States, specifically by demanding that the States on whose territories alleged perpetrators are present either extradite or prosecute these persons. As the ICJ stated in Questions Relating to the Obligation to Prosecute or Extradite, these are obligations with whose compliance all States Party have a legal interest and in regard to which they may invoke the responsibility of fellow States Party (paras 68–69). Consequently, States Party to the Convention especially those that were parties at the time of the alleged crimes, may invoke Equatorial Guinea’s obligation and demand that it extradites Jammeh. This demand may be made at a diplomatic level or through contentious litigation before the International Court of Justice as provided in article 30 of the Convention against Torture.

One of the realities that must be confronted relates to the fact that Equatorial Guinea is not a member State of ECOWAS. Therefore, if a court solely set up by ECOWAS is established, it will be challenging for the regional body to mandate compliance on the part of Equatorial Guinea. However, since both The Gambia and Equatorial Guinea are member States of the African Union, the most viable approach, despite its challenges, may be to emphasize the Africa Union’s collaboration in the establishment of the proposed court. This will allow for reliance on existing AU legal and policy frameworks to ensure the implementation of the court’s mandate and broaden the forums available for both States to present their perspectives especially in the event of contradicting positions. For example, reliance could be placed on Articles 7 and 9 of the AU Constitutive Act and Article 7 of the Protocol Relating to the Establishment of the Peace and Security Council of the African Union to push both States to respect any AU Assembly resolutions and PSC decisions geared towards ensuring the implementation of the Court’s mandate, orders and requests for assistance. Specifically, under AU law, Equatorial Guinea would not be able to rely on the lack of an extradition treaty as an excuse for not honoring its obligations. In addition, the AU Assembly’s coercive threat of sanctions (article 23 Constitutive Act) would also likely incentivize it to comply with any AU decisions obligating cooperation with the Court.

Way forward?

The international community is already pulling its weight regarding the crimes of the Jammeh administration, largely due to the unwavering efforts of civil society groups. In particular, a number of third States have already commenced criminal proceedings against some alleged perpetrators who are physically present on their territories, relying on the principle of universal jurisdiction. Baboucar “Bai” Lowe, a former member of Jammeh’s hit squad, the “Junglers”, is currently on trial in Germany, while Michael Sang Correa, also a former Jungler, has been indicted in the United States. Ousman Sonko, a former Jammeh-era Interior Minister, is also currently on trial in Switzerland. In its judgment of July 5, 2023, the ECOWAS Court of Justice also decried The Gambia’s delay in undertaking prosecutions as recommended by the TRRC, and directed The Gambia to ensure such prosecutions without further delay. It is also encouraging that some potential donors have already pledged financial support for the Special Court. The European Union has reportedly pledged financial support for the transitional justice process, while the United States had pledged financial support for prosecutions. Hopefully, these will spur commitments from others. These universal jurisdiction prosecutions and the financial commitments should act as impetus for accelerating the prosecution of Jammeh by the Gambia-ECOWAS court.

The Gambia has primary interest in and responsibility for ensuring that the architects of an administration that turned state machinery against its own people are held to account by and on behalf of these very people. However, there are good reasons why it may not be able to comfortably finance such a complex prosecutorial process. In fact, the Implementation Plan (p. 33) has identified limited financial resources as a potential risk in the plan’s implementation. Additionally, while donor funding is very welcome, it is not a sustainable funding model, and the success of this process cannot and should not be hinged upon it. Two inter-governmental organizations are therefore key to the success of the Court: ECOWAS and the AU, both of whom, as regional guardians of human rights, are obligated to assist The Gambia in this journey.

As one of the primary actors involved in the establishment of the Court, it follows that ECOWAS should necessarily commit to financing the Court. ECOWAS can either mandate compulsory assessed contribution of its member States for the specific purpose of the Court or derive necessary funds from its general annual budget.

As the guardian of human rights on the continent, the AU has a primary obligation to support The Gambia and ECOWAS in their quest for criminal accountability for Jammeh-era crimes.  It falls to the African Union to bring its diplomatic and legal force to bear in ensuring that Equatorial Guinea hands Jammeh over to the Court as soon as it is established. The Habré trial is recent testimony of the AU’s capacity to cooperate with governments of African states to realize their commitment to accountability for mass atrocities. With the AU’s support, the Extraordinary African Chambers were established within the courts of Senegal to prosecute international crimes committed in Chad between 1982–1990. The AU, therefore, has good precedent for its involvement. The accountability process also requires the AU to make a solid financial commitment to the Court, either by sourcing its contribution from its general annual budget as approved by the AU Assembly or by drawing from the AU Peace Fund.

The government of The Gambia, ECOWAS, and the AU have a responsibility to action the decades-long justice and accountability demands of the victims and survivors of the Jammeh-era crimes, from The Gambia and beyond. Whereas the political context has significantly evolved and resulted in political concessions which could impact future accountability processes, key national and continental commitments to implement a holistic transitional justice process which includes the prosecution of those most responsible for committing these atrocities remain. Taking this important step of bringing these individuals to trial will not only provide the opportunity for their victims to seek redress, but also demonstrate the continent’s commitment to realizing respect for human rights, justice and the rule of law as embedded in continental legal instruments and in the AU’s Agenda 2063.

Just Security

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