By Aisha Tamba
Amie Bensouda, a senior legal practitioner and former acting Attorney General under the AFPRC military junta, has said Jammeh indicated his intentions to rule by decrees and instructed her to draft them.
Testifying at the TRRC yesterday, Bensouda said after the coup, she went to see Jammeh as the acting AG, who asked her about decrees.
She said during her meeting, she observed that Jammeh already knew the military governments from Nigeria and Ghana used decrees to entrench themselves in power and the junta had already done some research about the decrees.
“Jammeh asked me how the decree was made. I told them that we have a drafting unit and he told me that he wanted the ministry to draft a decree that reflected the situation. Decree number one, which established the Armed Forces Provisional Ruling Council as announced, suspended the executive.”
She said that was drafted on that very day and presented to the military junta. She admitted decree number one, two, three, four, five, and six were drafted under her watch and were intended to introduce stability in the public service.
“They did their home work and knew that the military ruled by decrees,” she said.
She added whether she was there or not, the military would have come out with decrees. “Saying that the military junta members were stupid and innocent was far from it.”
She denied helping the junta to draft the decrees, arguing that it was her duty as an acting AG to draft them.
She said six decrees were passed under her tenure as an acting AG. She denied that the decrees suspended human rights. “As far as decree number 3 was concerned, the fundamental human rights chapter in the constitution was operative.”
She denied that the decrees paved the way for the military junta’s human rights violations.
She argued: “Decrees did not legitimize the actions of the Armed Forces Provisional Ruling Council; it cannot legitimize torture; it cannot legitimize detention and the Armed Forces Provisional Ruling Council knew that the only legitimacy they can get during the transition period was to have an indemnity in the constitution. That is why they went to the extent of ensuring that we had the second schedule to the constitution indemnifying their actions during the period.”
She furthered that it is the Gambian people in the 1997 constitution which supposedly went to a referendum that legitimized the actions of the AFPRC. “And from 1997 to date, those provisions in the constitution legitimizing and granting indemnity to the AFPRC still remain in our laws. That is why Yankuba Touray was able to raise it and if you look at the judgments of our courts consistently from 1997, they have excluded themselves from having the jurisdiction determining the decrees,” she emphasized.
She denied helping the junta validate their actions through the decrees. “The decrees did not validate anything done by the council; they did not need validation. The decrees provide a framework for them to operate in which they operated. It was created by them; it was enforced by them; it was amended by them when they saw it. In fact, when the decrees said they could not do something, it did not prevent them from doing it because they had the power to do it.”
Asked if she had any regrets about drafting the decrees, she responded: “No, whatsoever none, a framework was needed. The point was to create a framework within which they could operate whether they followed it or not, that was the framework.”
She gave an example that decree number one gives them a structure within which the cabinet members could be appointed and could sit to mediate issues that the country needs to be addressed that have nothing to do with the military. She added that the decree also enabled the government to continue to function under the laws that were in place. “I take no responsibility for the decrees,” she asserted.
She stated that the decrees did not enable Yahya Jammeh and his regime, adding that Jammeh and the junta took power without any decree. “They held power without the decrees, they arrested people without the decrees, they tortured people without decrees. The decrees were intended to introduce an order in the society; to give an understanding to the people as to how the military intends to rule. You will not find in any decree that a person should be tortured, you will not find in any decree they should go to anybody’s home and beat them up. The military did this as a violation even of their own decrees, so I take no responsibility for anything that Yahya Jammeh did. I take no responsibility for any action of the junta.”
She defended the decrees, saying that without decree number one, former ministers would not have been released to go home.
She recalled that a significant research was done by Cherno Jallow on the various military establishment decrees from Nigeria and Ghana. “We agreed that this was too drastic. Cherno provided a draft decree number one, reflecting the dove factor situation. It formally established the AFPRC and council of ministers, suspended executive and parliament and modified provisions which did not comply with the situation.”
She said most of those decrees are still surviving in our laws. “Decree is not a dirty word. We should examine each of the decrees in relation to the context and the situation on the ground to determine whether the decrees in themselves violated the human rights of the people, the situation in which we found ourselves objectively without overlaying with personal opinion. The decrees that were drafted under my watch help the situation and for that, I do take responsibility that I helped instead of allowing anarchy.”
She admitted that she was naïve having met the chairman and his assurance that there will be no witch-hunt. “We thought both Cherno and I that by not suspending the fundamental human rights chapter in the constitution, the junta would actually respect human rights but unfortunately, they did not. That is because they used their power wrongly. There are military governments that have abounded in West Africa, not all of them violated human rights to the extent of our own junta. It was not necessary for them to torture and kill people to remain in power. They tortured and killed people because they wanted to. They wanted people to fear them and they used it as a weapon. It was not enabled by any decree that was drafted under my watch.”
She argued that most of those decrees are still in our constitution now which is supposed to be democratic. “So, Yahya Jammeh and his junta should take responsibility for the tortures and the killings. Nobody in the Ministry of Justice enabled them to do so. The decrees were needed, whether I was there or not.”