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Is The Gambia a step closer to moving on with trials and reparations?

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By Mariam Sankanu

On May 12, the Gambian president Adama Barrow issued an implementation plan of the 2021 recommendations of the Truth, Reconciliation and Reparations Commission. He announced a 9-million euro pledge by the European Union. After it stalled, some hope Gambia’s transitional justice process can get back on track.

Since the Truth, Reconciliation and Reparations Commission (TRRC), a three-year fact-finding body that looked into the human rights violations and abuses committed under former president Yahya Jammeh’s regime (1994-2017), released its recommendations in November 2021, there have been lingering hopes for its implementation. Less than a year later, the Gambian government issued its White Paper, accepting most of the commission’s recommendations. However, the government said it lacked the financial resources to implement them, even though some require very little or no funds: persons recommended to be banned from public office have only been sent on administrative leave; institutional reforms are yet to be done; the Victims Reparations Bill which was submitted to cabinet earlier this year is yet to be approved.

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On May 12, at a stakeholder and donor conference where the government released its long-awaited White Paper implementation plan, the presidency announced that the European Union has committed 9 million euros to the process. Could this mean that post-TRRC transitional justice is finally on its way?

In its final report, the TRRC made 265 recommendations on prosecutions, reparations, reconciliation and reforms. The government implementation plan addresses the 22 thematic areas of the TRRC report. The process is supposed to run from 2023 2027 for a total budget plan of US148,850,555 US dollars distributed as follows:

The question is: where would the rest of such ambitious budget come from?

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“I think in 2021 [the government] said they [would] put in D115 million (1.8 million euros) in the budget, which I’m not sure if it was spent or if it was even put there,” said Gambian human rights defender, Madi Jobarteh.

“It means they have to get into a robust fundraising drive. They can have a fundraising strategy that would also include what civil society would contribute in cash or kind because there are certain recommendations they may rely on civil society for implementation – for example, peace-building initiatives, raising awareness, reconciliation activities – but also, the private sector.”

But for Jobarteh, “The Gambia government should be the primary funder for the truth commission recommendations because this goes to the very soul of the nation: it’s about our people doing things to each other, and the state being basically the vehicle to damage those lives.”

The European Union and The Gambia government have agreed on a set of objectives to ensure the successful use of the funds on the transitional justice process. “In other words, to get 100% of a given variable tranche the government will have to achieve 100% of the related performance indicators,” Raphaël Brigandi, political officer of the Delegation of the European Union to The Gambia, told Justice Info without clarifying details.

In the view of the EU, however, a new constitution is the “mother of all reforms,” says Brigandi. The Gambia’s hopes of getting a new constitution fell flat in September 2020, when lawmakers rejected the draft constitution that was supposed to replace the 1997 Constitution. As it stands, the repressive laws that enabled Yahya Jammeh to perpetuate himself in power are still in the Gambian law books. Legislations such as archaic prison laws, which the TRRC had recommended be repealed, are yet to be changed.

Plans for a hybrid court

There has been continuous debate on the issue of post-TRRC prosecutions of Jammeh-era crimes. In February, the Ministry of Justice announced hiring a special prosecutor for an “internationalised court” that would be set up in The Gambia to try crimes committed under Yahya Jammeh’s regime. “After the powerful public proceedings at the TRRC which deeply impacted Gambians, there was a strong expectation, both at home and abroad, that the government would deliver justice – including criminal trials – without further delay for victims who had already waited for so many years. It took the government a long time, way too long, but it now seems fully committed to a very promising plan with the creation of a Special Prosecutor’s Office and hybrid court with Ecowas. The Ecowas hybrid court model has many strengths. It will allow the use of international law and international experts. It could allow trials to be held outside The Gambia when necessary, as perhaps for Jammeh himself. It could give a greater role for victims than in the Gambian system,” said Reed Brody, an American human rights lawyer and one of the leading promoters of the “Jammeh 2 Justice Campaign”, aimed at bringing Jammeh – currently in exile in Equatorial Guinea – and other alleged perpetrators to justice.

“Most importantly,” Brody added, “an Ecowas court will harness the support of the entire region, including countries like Ghana, Nigeria and Senegal whose citizens were killed under Jammeh, making it more difficult for Equatorial Guinea to refuse to hand Jammeh over when the time comes. But it’s still going to take years to put all this together so it’s important to move forward quickly.”

will the government stick to its plan?

“My government is fully committed to ensuring a comprehensive and effective implementation process. We will tirelessly make sure that justice is served and that rights and dignity of the victims are upheld,” President Barrow said at the donor conference this month. But despite the government’s numerous reassurances that it would fully implement the TRRC recommendations, political will remains an issue as “it is subject to change with new governments or shifts in political priorities,” warns the implementation plan itself.

The political alliance between the ruling National People’s Party and a faction of Jammeh’s former party, the Alliance for Patriotic Reorientation and Construction (APRC), was further strengthened when President Barrow elected Fabakary Tombong Jatta, the APRC leader, as Speaker of the National Assembly – making him the third most powerful man in the country. Both he and his deputy’s appointments were welcomed with heavy criticisms and condemnations.

“It is on record that Fabakary has led the APRC since 2016 to actively and vigorously reject, discredit and ridicule the TRRC and every other effort, institution or individual including your former minister, Abubacarr Tambadou, who seek to bring justice for victims of Yahya Jammeh,” the Gambia Centre for Victims of Human Rights Violations wrote in a letter addressed to the President following the appointment. “How therefore, could you nominate such a person to lead the main body that ultimately bears the primary responsibility of making laws, approving budgets, and scrutinising institutions that are responsible for the implementation of the TRRC Report?”, the letter asked.

Yahya Jammeh still enjoys popularity in The Gambia and it is expected that the implementation of the TRRC recommendations would be met with resistance.

“I was at the donor conference and I’ve heard representatives of the government speak, and I don’t think they will speak just for the purpose of speaking. I am optimistic that they are going to stick to their promise. The president himself said his government is committed. So let’s just take that as a word from him and see what’s going to happen,” said Isatou Jammeh, a human rights activist.

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