By Omar Bah
Reed Brody, the American human rights lawyer and activist, has said crimes committed under former president Yahya Jammeh cannot be tried in Gambian courts.
The TRRC has recommended Jammeh and 69 others to be prosecuted for the crimes committed between 1994 to 2017. The commission suggested for an internationalised tribunal and rejected the possibility of a purely domestic process, arguing that the country’s legal framework is not adequate in addition to the capacity issues. It also suggested that bringing Jammeh back, detained and prosecuted will be destabilising for the country. However, in its White Paper, the government briefly said it intends to create a special judicial framework within the country’s domestic court system for the prosecution of perpetrators.
“Legal changes would be affected to give its jurisdiction over the offences of torture and international crimes and that the court shall be located in the Gambia with the option of holding sittings in other countries,” it added.
But Reed, who is a leading voice in the Jammeh2Justice campaign, said the conditions the government is pointing out cannot be met. “A domestic court cannot have jurisdiction over crimes that are not yet in the Gambian code, so if laws as they should be are adopted in The Gambia to criminalise torture, crimes against humanity, a domestic court cannot have retroactive jurisdiction over those crimes. A classic example is a decision of the Ecowas Court of Justice in the Hissene Habré case that says in order to prosecute crimes retroactively, there needs to be an internationalised tribunal,” Reed added.
He argued that courts in The Gambia “can only sit in The Gambia”, arguing that “a hybrid court would have been the best option because it would have dealt with the retroactivity question and generally introduce international criminal law principle, not just for crimes against humanity but also principles like command responsibility”.
“As we have seen and heard, Jammeh is alleged to have committed a number of crimes personally but in many other instances, he is alleged to have given orders and it may be difficult to prove those others but international law provides that somebody is responsible if their subordinate commits crimes and they do nothing to prevent, stop or punish those crimes,” he explained.
The respected lawyer said under those circumstances, an internationalised court would be necessary to sit in another country.
“If the custody of the former president is obtained, he could be detained and prosecuted in another country that is a member of the hybrid court system,” he said.
Earlier, reading a statement on behalf of Jammeh2Justice, daughter of the late Solo Sandeng, Fatoumatta Sandeng, said: “The Jammeh2Justice campaign, made of victims of the former regime and Gambian and international activists, calls on the government of The Gambia to take concrete steps to bring former president Yahya Jammeh and his alleged accomplices to justice.
We welcome and salute the government’s acceptance of the TRRC’s recommendations and in particular, its commitment to prosecute Jammeh and his accomplices. But we had hoped that the government would provide greater clarity and detail on the judicial framework it intends to create for those prosecutions.”
Visit to Equatorial Guinea
Madam Sandeng said the victim community is concerned that only days after the Minister of Justice stated that Jammeh will face justice for the atrocities that he committed, President Barrow conducted a state visit to Equatorial Guinea and did not even raise the subject of Jammeh’s extradition”.
She said the government could make it “very difficult for Equatorial Guinea to resist a demand for Jammeh’s extradition by lining up the support of Ecowas and the entire region, in particular countries such as Ghana, Nigeria, Senegal, Togo, Liberia, Sierra Leone and Cote d’Ivoire whose citizens were allegedly murdered under Jammeh’s orders”.