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Of the TRRC final report, its Recommendations, the Government White Paper

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Implementation, and Crimes Against Humanity

By Lamin J. Darbo

It was dramatic and captivating, and in hindsight, a development as profound as any in the public affairs of The Gambia. More than a quarter century later, a nation negotiates the fallout of 22 July 1994. That it took the trajectory it did was not completely surprising but nevertheless enmeshed with great regret, sorrow and sadness.

Writing as a first-year law student from the Knoxville Campus of the University of Tennessee, and as published on the 1st August 1994 edition of the Daily Observer, I warned the country’s new leaders:

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“Without doubt, you are the men of the hour, symbols of heroism to at least 90 percent of all Gambians. The question mark is over the future. And the future is what we must address because therein lies our collective destiny.

In light of the track record of military regimes in other African countries, the near unanimous but qualified support is understandable. We would hate to see our parents, families, friends, and any Gambian for that matter flee the country in fear for their lives. Death would be preferable to countenancing such a spectacle.

To solidify your position and keep the country together, you must avoid the adoption of the modus operandi of military governments in Africa.

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More fundamentally, you cannot afford to create martyrs. And vindictiveness must not be a part of the new order of national affairs. Memories last forever, and if bitter, they become a factor in the calculus of daily events, escalating the potential for tragedy on a constant basis. Ordinary Gambians, especially the unlettered bulk whose support for Jawara’s government had no rational basis, must be left alone. Only those public servants whose conduct clearly triggers the response of our laws may be fair targets for investigation.

We are not nostalgic for an era and a government that visited executive vandalism on the Gambian people. But we also refuse to be sentimental and complacent about the present. Your place in history will entirely depend on how you utilise the awe-inspiring instruments of government at your disposal.

After a fraud lasting three decades, the populace may be prone to the syndrome of unrealistic expectations that are almost always integral to forceful government transitions in Africa. Your task is to communicate in effective but realistic terms, and to refuse to feed the frenzy of utopian sentimentalism during your honeymoon with the Gambian people. This, however, is not to suggest that you shy away from engaging the practical challenge of nation building.

And nation building necessarily involves national reconciliation.

In light of the manner you ascended power, certain constituencies may feel alienated. Your task is to reassure everyone, and not make anyone desperate through fear for personal safety. And even if private property is seized pending further investigation, I strongly recommend that a final determination of forfeiture be adjudicated before the tribunals of justice in The Gambia.

In similar vein, and notwithstanding the suspension of the Constitution, the Cabinet members of the overthrown government must be accorded due process commensurate with the basic tenets of justice.

The families of those former cabinet members, whether among the Jawara asylum party in Senegal, or other parts of the world, must not be used as bargaining chips. They are not even vicariously responsible for the untoward conduct of their spouses and/or parents. Although our first successful national encounter with a forceful displacement of government, the experience of other countries should provide cogent instruction in our attempt to fashion a strategy of national unity in the aftermath of such an earthshaking event. The overthrow of the Jawara government was bloodless and we challenge you to keep your administration bloodless. This means no hostages, no summary trials, and absolutely no executions.

A watcher of the Gambian political scene said that we should approach events in our homeland with “cautions optimism”. For now, we salute you, albeit cautiously, for ending a three-decade fraud that emasculated the Gambia. Everyone I contacted simultaneously endorsed the overthrow of the Jawara government, and expressed uneasiness with a permanent military regime in The Gambia. I strongly recommend that you seriously consider and communicate to the Gambian people a timetable for a return to civilian rule in the country.

Excuse my concern but my civic duties dictate that I express my thoughts on a condition of first impression in my country. The stakes are too high, and sink or swim, we are in it together as Gambians.

For 17 years, I have followed every major political event in Africa and the world. I have seen governments, civilian and military, engineer and nurture atrocities of mind-boggling dimensions on the people whose welfare they are supposed to protect. I have also seen the silent killers, the governmental equivalents of high blood pressure, arrest the hopes, and drown the dreams of generations of their youthful citizens. Jawara belongs in the latter.

May God bless The Gambia and Gambians in this hour of trial!”

From plain Lieutenant Jammeh in 1994 to Sheikh Professor Alhajie Dr. Yahya A. J. J. Jammeh, the intervening years to January 2017 came in all shades of sorrow.

Witness the TRRC, its final report and the questions over recommendations and implementation.

Its final report triggered a Government White Paper and a lively public conversation on section 30(3) of the TRRC Act. According to this section, “the Government shall, within six months following the submission of the report, issue a white paper containing its proposed plan on the implementation of the recommendations in the gazette”. This is interpreted in some quarters as meaning that the Government cannot add or subtract anything from the TRRC final report.

Although a respectable position, section 30(3) must not be read in isolation especially considering the Act provides no explicit nexus between the recommendations and how they are to be implemented. I propose that in the arguable absence of an implementation framework, the more pragmatic view is that the Government, i.e., the President, can review the recommendations as long as that is done in a manner not repugnant to the general objects of the TRRC.

On the face of it, the President’s presence in the Act is quite pervasive. From appointments, to resignations, removals, the interim and final reports, the white paper and dissolution, all roads lead to the Presidency. Absent a specific body designated for implementation of the recommendations, the Presidency is the logical destination considering the TRRC is dissolved and a lot still needs doing and law is incapable of self implementation.

In the larger scheme of things, there are Constitutional provisions implicated in the TRRC Act. The prosecuting function lies in the Executive, and so is the prerogative of mercy. These provisions have logical linkage to contemplated prosecutions and unless the State Law Office is satisfied an allegation is provable, it has the mandate to decline progressing it further, and this neatly fits within the ambit of the Constitution’s self-donating supremacy power.

As for the proposed legal framework, I am unsure what particular efficacy a torture legislation has for TRRC prosecutions. And so too crimes against humanity when there appears to be no one who can be successfully charged for this crime.

The preamble to the Rome Statute setting up the International Criminal Court expresses an explicit goal to punish perpetrators of “the most serious crimes of concern to the international community as a whole”. It would assert its jurisdiction over individuals, albeit in a theoretically residual capacity pursuant to its stated principle of complementarity, a principle that in itself presents no difficulties in the right substantive climate.

The logic of combating the “unimaginable atrocities that deeply shock the conscience of humanity” in “this century” appears unassailable. For present purposes, I limit my consideration of the ‘international legal angle’ to our crisis of governance on whether there is a realistic chance of successfully prosecuting anyone for alleged “crimes against humanity” in The Gambia with charges arising out of the TRRC report.

In the Rome Statute, ‘crimes against humanity’ is defined as any of “the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”: murder, torture, rape, sexual slavery, persecution and other inhumane acts, in acertain context: they must be part of a widespread or systematic attack directed against a civilian population.

It is the context that elevates crimes that might otherwise fall exclusively under national jurisdiction to crimes of concern to the international community as a whole.  An individual may be liable for crimes against humanity if he or she commits one or more inhumane acts within the broader context.

The two elements common to all acts designable as ‘crimes against humanity’ are that “the conduct was committed as part of a widespread or systematic attack directed against a civilian population”, and that “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population”. In so far as ‘any civilian population’ is concerned, the law makes no distinction as to whether affected civilians are “enemy nationals” or a state’s “own subjects”, and the prohibited conduct must neither be “single” nor “isolated acts against civilians”.

On the requirement of “widespread or systematic attack”, the circumstances appear to be fact-sensitive: The term ‘widespread’ has been defined in various ways, and generally connotes the large-scale nature of the attack and the number of victims … While ‘widespread’ typically refers to the cumulative effect of numerous inhumane acts, it could also be satisfied by a singular massive act of extraordinary magnitude …

The term ‘systematic’ has also been defined in various ways … Consistent with the ordinary meaning of the term, it may be that the hallmark of ‘systematic’ is the high degree of organization …

In its Elements of Crimes, the Rome Statute defines ‘attack’ as a “course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such attack”. It is a requirement that the “accused committed a prohibited act, that the act objectively falls within the broader attack, and that the accused was aware of the broader context”. To be liable, the accused must have “the requisite mental elements for his or her particular offences”, as well as “be aware of the ‘broader context in which his actions occur’, namely the attack directed against a civilian population”.

As a ‘crime against humanity’, murder is defined as “unlawfully and intentionally causing the death of a human being”. In similar vein, “extermination involves killing by the accused within a context of mass killing”. There is no need for the perpetrator to be the architect of the mass killing, “he only needs to know the context of the mass killing”. According to Article 7 (2) (b) of the Rome Statute, it includes “the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”.

Even a casual analysis of the forgoing cannot but suggest that for a successful prosecution of crimes against humanity, widespread atrocities must first be committed in the context of major national and, or, international conflict. This is the clear teaching of the precedents, i.e., the ad hoc international criminal tribunals predating the ICC.

From the Nuremburg, and Tokyo military tribunals, to the International Criminal Tribunals for Yugoslavia, and Rwanda, and the Special Courts for East Timor, Sierra Leone, and Cambodia, there was no precedent for crimes against prosecutions arising out of political conditions as existed in The Gambia between 1994 and January 2017.

In World War II, tens of millions were killed in internal brutality and international militarism. In the former Yugoslavia, tens, maybe hundreds of thousands were killed and injured, and in Rwanda over 800,000 were reportedly slaughtered. Sierra Leone recorded the slaughter of at least 50, 000, and in Cambodia, close to 1.7 million. In all these cases, only a handful of alleged perpetrators and or ‘principal’ participants were prosecuted!

Even under the now consolidated system of the ICC with jurisdiction commencing only from 01 July 2002, nothing short of major violence is likely to trigger international judicial interest in a country’s internal affairs.

Witness Darfur, the Kenyan election crisis, and the protracted conflicts in Uganda, and the Democratic Republic of the Congo. We must never forget that the international system has a high tolerance for state violence, and absent exceptional conditions in the form of massive killings in the context of real conflict, there is no prospect of global intervention with a view to holding the Professor judicially accountable for crimes against humanity in The Gambia.

I suggest targets of prosecution arising out of the TRRC report be charged with crimes available under the Criminal Code of The Gambia.

And since the Government white paper closely approximates the TRRC recommendations, what harm is there to proceed with the widely acclaimed white paper.

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