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Monday, September 21, 2020

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By Yanks Dabo

The Gambia’s Justice Minister and Attorney General, Baa Tambadou, will abuse his powers and authority if he refuses to prosecute the former henchmen of the former Gambian dictator Yahya Jammeh, who were accused by the country’s military of perpetrating human rights crimes and are being detained.

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The men further confessed to committing such crimes at the Truth and Reconciliation Commission and therefore any decision by the Justice Minister to release such mass murderers will lack both legal standing and good reasoning.

Under the Gambian laws a person accused of murder is only freed upon an acquittal by a competent court or Presidential prerogative of mercy, but the latter is only exercisable upon the conviction and sentencing of the pardoned! The Minister of Justice is neither a court nor a President.

He is only a Minister, and to give that a bit of colour, an adviser to the President.

As such the Minister does not have powers to acquit anyone or grant pardon or grant what seems like an amnesty to the Junglers, to walk free in our societies with victims of their horrendous atrocities.

If the Minister ought to have any such powers, it would have been in the TRRC Statute, which is the TRRC Act of 2017 masterminded and passed into law by the same Minister.

This is the statutory legislation that established the Truth, Reconciliation and Reparations Commission and further set out the parameters of their mandate.

Section 15 of that Act sets out the powers of the commission among which include powers to summon witnesses, powers to interview, powers to request evidence, powers to request police escorts, etc.

as well as powers to recommend amnesty.

It is a power to recommend Amnesty, but not to grant it.

There is a subtle nuance between the two that ought to be appreciated.

Section 19 of the Act further spells out the Commission’s powers with regard to the issue of Amnesty.

I will reproduce that Section here for clarity:

“19. Amnesty
(1) The Commission may recommend Amnesty under the terms and conditions established by the Commission upon application by a person making full disclosures of their involvement in human rights violations or abuses and expressing remorse for their acts or conduct.

(2) Where the Commission has refused an application for amnesty, it shall as soon as reasonably practicable give reasons for its refusal in writing to the applicant and to any other person who in relation to the offence is a victim.

(3) Amnesty shall not apply to acts, which form part of a crime against humanity”
It is clear from that Section that the TRRC Commission is not mandated to grant Amnesty, but has the discretion to recommend such, if and when it is applied for.

However, the statute prevents the Commission from recommending such for those who commit “acts, which form part of a crime against humanity”.

Unfortunately, the interpretations section of the Act failed or eschewed itself from providing the definition of what ought to constitute crimes against humanity.

This is compelling us to look somewhere else. Thankfully, the Rome Statute of 1998, an international legislation that gave birth to the International Criminal Court (ICC) – which The Gambia is a signatory to – provides an indispensable assistance to that quest for a definition.

Article 7 of The Rome Statute has listed a number of acts, which is defined to constitute Crimes Against Humanity.

For clarity the Rome Statute defined the following acts as constituting Crimes Against Humanity:

“Article 7
Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means 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:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons”
Thus the TRRC Act 2017 makes it abundantly obvious that if any person engaged in an act, which forms part of crimes against humanity, Amnesty should not be considered for such a person.

From the definition of the Rome Statute: murder, torture, rape, and enforced disappearances amounted to crimes against humanity.

These are the very acts the Junglers have confessed to perpetrating against unarmed civilians.

Their acts were further systematic, for it was sanctioned by the head of state at the time and formed part of their modus operandi.

From the above, it is further reasonable to deduct that, the Minister has no statutory power to grant amnesty or release the Junglers.

In fact, if anything, his legislation that he gave birth to and christened, being the statute of TRRC, prohibits him from granting amnesty to the Junglers, due to their perpetration of crimes against humanity.

Minister’s power
The Minister however has one predisposed discretion, which seems to be the power he may be planning exercise andwhich I am inclined to say will tantamount to an abuse of power by the Minister to justify any decision to release the Junglers.

This is his constitutional discretion to dictate, who gets to be prosecuted by the Director of Public Prosecutions and who does not.

This is the lamentable provision provided under Section 88 of the constitution of The Gambia 1997, which requires the approval of the Minister for any decision to prosecute or discontinue prosecution.

However, an exercise of that discretion ought to align with good reasoning! It would otherwise be improper and yield to travesty if abused.

It is along that line one deducts the Justice Minister’s decision not to prosecute.

Otherwise, it makes little sense that the Minister would waste Parliament’s time into passing the TRRC Act, which prohibits amnesty to the Junglers; but only for the Minister to give them amnesty by simply refusing to prosecute or through the back door, when the evidence is glaringly obvious that they have committed crimes against humanity.

It is further reasonable to deduct that the supposed reasons presented by the Minister for any decision to release the Junglers lacks logic or cogency, being that the Junglers have been cooperative and truthful to the TRRC commission.

This is because under our legal traditions, it is not the Minister who determine what benefits or discounts of sentence ought to be awarded or accorded to an accused or convict for their cooperation and assistance to prosecution.

That is a decision of a judge of a competent court. The prosecution can recommend lenient sentence to the Judge, due to that person’s cooperation and assistance to the prosecution, but cannot determine his sentence or pass the same.

Only the Judge in his sentencing powers has that discretion.

Thus the Minister’s justification amounts to his admission of usurpation of powers not falling within his jurisdiction.

Secondly, the TRRC statute specifically excludes amnesty for acts of crimes against humanity.

Thus if the Minister of Justice to refuses to prosecute the Junglers it will be a wrong and unreasonable decision.

He may be exercising his powers to refuse prosecution, but he is doing it inappropriately, which could not be reasoned to have had the blessings of the drafters of our constitution neither the Gambian public that voted the same.

The only alternative, to look on the brighter side of things, is that the victims and their loved ones still have the option of private prosecutions, which is the least desirable option in the circumstances, for they will be putting up a fight against professional killers and assassins, who are unrestrained in the same small Gambian societies with them.

The other alternative would be a Judicial Review challenge to the Supreme Court on the grounds of the Minister’s abuse of constitutional discretion!

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