By Malick HB Jallow Esq
A lot of issues worthy of attention presently, but I find it hard to resist the temptation to pass commentary on the announced homecoming of former President Yahya Jammeh. It speaks very strongly to my background as a constitutional and human rights lawyer as well as my background in teaching constitutional law and international criminal law for over ten years at the faculty of law, University of The Gambia.
It is important to state at the outset that president Jammeh is well within his rights to not only return home but be afforded the full privileges of a former democratically elected leader of our country unless negated by a court of competent jurisdiction.
It is indeed interesting that the only time concerted threats to arrest and prosecute Jammeh emanate from the government is whenever there is a strong hint of his inclination to return home. This is not only disrespectful to the victims but insensitive to the harm that they have suffered as well. If there is evidence to charge and prosecute president Jammeh then this should be vigorously pursued and not be manipulated for political expediency. The victims certainly deserve long-awaited closure.
Indeed, as per the status-quo, president Jammeh has the backing of the law as far as his privileges and entitlements as a former president is concerned. The same privileges, to be fair to him, he extended to former president Jawara by passing legislation to cater for the welfare and upkeep of former presidents by the state.
With regards to the potential to be arrested and prosecuted upon his return, this may well be legitimate in light of the revelations from the TRRC. One may however be tempted to say that the evidence against him at the TRRC,a quasi-judicial body, was one-sided as the body never heard from president Jammeh in response to the said allegations. This indeed violates the fundamental tenet of right to fair hearing and remains a scar on the credibility of an otherwise accomplished quasi-judicial initiative.
The issue of immunity for president Jammeh has also been canvassed by his followers. It is true that the 1997 constitution of the Gambia provides immunity for a former head of state with respect to criminal transgressions unless waived by the national assembly. However such immunity is irrelevant where the character of the charges aligns with serious international crimes such as genocide, war crimes, crimes against humanity, as firmly established in international customary law and given impetus by various international and hybrid tribunals such as the International Criminal Court, The Special Court for Sierra-Leone, The International Criminal Tribunal for the Former Yugoslavia amongst others. Essentially these courts have stated and found that the position of a suspect as head of state or government is not a bar to prosecution for serious international crimes. This is what facilitated processes against Muhammad-Al-Bashir, Slobodan Milosevic, Charles Taylor and General Augusto Pinochet before the British House of Lords. This is relevant as it can be strongly argued that some of the offences recommended to prosecute president Jammeh such as the killing of the Ghanaian migrants certainly border on crimes against humanity.
Any process therefore to bring president Jammeh to justice in the Gambia can be dealt with through the anticipated special hybrid tribunal or through our domestic court system. Until then his rights and dignity as a former head of state should be respected as well as his right to pursue his political existence.
The author is a human rights and constitutional lawyer and founder/president of Malick Jallow Foundation for Children.
