By Jeggan Grey-Johnson
In 2020, the US International Republican Institute (IRI) commissioned South Africa-based Gambian rights activist Jeggan Grey-Johnson to conduct a study on The Janneh Commission. Released on 14th September, 2020 the 23-page report “Dashed Hopes & False Expectations: Observations on the Janneh Commission Report” essayed the achievements and failures of the commission, and offered useful recommendations to shore up the lacunae in the commission’s work.
After the furore spawned by The Republic’s recent exposé on the opaque nature of the sale of assets forfeited by former president Yahya Jammeh, we reproduce below part of Mr Grey-Johnson’s report that shone the light five years ago on what The Republic brought to the fore recently:
Missteps of the Janneh Commission
The Janneh Commission’s report stated that social media was branded with suspicion, and referred to as a ‘source of misinformation’ when it came to maintaining the commission’s credibility. It did not give any evidence as to its assertion. However, the report dwelled on its own first fault line: the falling out between [Alhaji Mamadi] Kurang (the secretary to the commission) and [Amie] Bensouda (the lead counsel). But the commission did not detail this saga, and negated to investigate – at least internally, the claims made by Kurang. It mentioned it in passing. The version stated that Kurang wrote a letter of complaint to Barrow who then acted on his prerogative as the recipient of the letter and the appointing authority and fired Kurang – thus the commission absolving itself from the action. This single accusation and act is enough to torpedo the entire commission, and render its findings null and void. If Kurang is brought in as a witness to reiterate his accusations of corruption and conflict of interest in the course of the work of the commission, particularly the legal counsel, there could be problems. And their credibility will be questioned, as it already is by at least four court cases that are ongoing currently, two of which have had judgement (against the government). In June 2020, The Gambia Court of Appeal made a unanimous decision by stating that the Janneh Commission of Inquiry recommendations cannot legally render a binding decision, which maybe executed or enforced as if it were a judgment or order of a Court.
In delivering a judgment in the case of MA Kharafi Versus The Attorney General, Justice Omar MM Njie said: “A commission of inquiry does not and legally cannot make a judgment. In other words, a Commission of Inquiry cannot legally render a binding decision which may be executed or enforced as it were a judgment or order.”
Justice Njie added that “the adverse findings and recommendations of the Commission of Inquiry are merely advisory and not conclusive and binding.” The judge said the Commission of Inquiry is part and parcel of the Executive and not part of the Judiciary, thus, not an adjudicatory body.
Furthermore, almost all the non-Gambians fingered by the report were recommended to be declared persona non grata and either banned from entering the country again and or expelled. It is unclear if the Commission has such powers.
The commission took a decision to hear certain cases in camera, and their reasons have to this date not been advanced. Minister of Finance Mambury Njie, testified in camera along with Momodu Sabally, Alieu Conteh, Aisha Fatty, and Ousman Sowe. This is odd, given that the same appeal to be extended the courtesy of an in camera testimony by Amadou Samba and Mohamed Bazzi, was turned down by the commission. There are also contradictions in the Janneh report where individuals are found wanting for committing crimes that vary in magnitude, frequency and consistency, yet some are banned from holding public office for 5 years, others 10 and others life, and others nothing at all. There is no explanation or criteria for reaching such conclusions. It is also a major contradiction that some culprits while being banned for life from holding ‘public office’ are permitted to sit on SOE boards, and be in their employ after 5 – 10 year bans. The question could be raised as to where does public office start and end when dealing with SOEs, which are public entities? There is also a contradiction as to how many properties Jammeh stole – 131 or 241?
The Janneh Commission cost the public at least D51 million, excluding the sitting allowances of the commissioners and 58 staffers of the commission; it overshot its initial lifespan eight times over – from the initial 90 to almost 730 days. They examined 253 witness testimonies, almost all of whom testified in full public view, which has now culminated into a colossal nine-volume document.
The Janneh Commission Report should have been submitted to the National Assembly for debate. It is not mandatory for the President to do so, but given the implications, it would have been prudent and wise for him to have taken this report and the government White Paper to the appropriate committees for further scrutiny. He decided not to do that. Notwithstanding, the section states that the report must be made public, as per the 1997 Constitution Commissions of Inquiry Act (section 203). This makes it imperative that the report must be public. The government made the reports available in printed form only, and even at that the price tag to obtain the report was beyond the reach of most Gambians (about D12,000), who would have to obtain copies form the Gambia National Printing Corporation in Kanifing. This, despite the fact that publication is defined as: ‘the act of making information or stories available to people in a printed or electronic form’. The Janneh Commission Report was inaccessible to almost the entire Gambian public, despite appeals from rights and transparency groups for the Ministry to release soft copies of the report. It was not until after the departure of Justice Minister Tambadou, that the Janneh Commission Report was finally uploaded and made publically accessible in September 2020, almost a year after its official release. Meanwhile, the misdealings of the Commission had already been laid bare.
Transparency and accountability deficit
The US government called for transparency in the asset recovery process for the benefit of the Gambian people and implored the government to ensure that recovered assets are being properly accounted for and accrue to the public benefit.
“The investigation of financial crimes is extremely complex, requiring specialized knowledge and training. We urge the Gambian public and civil society to invest the time to understand fully the complexities of the investigation and report, referencing the original Act that established the Commission of Inquiry, and the legal thresholds required to establish facts meeting evidentiary standards under Gambian law”.
The Janneh Commission’s recovery of stolen assets was underwhelming. The initial facts and figures around the recovery of the assets, as revealed at the end of March 2019 stood as follows: Seventy-five percent of the recovered US$1.5m went into paying the commission and legal counsel. Of the frozen, seized and sold assets, which included 138 tractors and 458 cars, only US$1.3m was generated. Some 725 head of cattle managed to fetch a paltry US$166,000. However, on 20th December the same year, the Minister of Justice revealed to the National Assembly that: “145 tractors have been sold by public auction. The proceeds of the sale totaling D23,655,000 of which D10,572, 000 was deposited into the commission’s account at the Central Bank of The Gambia and D13,083,000 paid into a sub-treasury account at the Trust Bank Limited under the custody of the Accountant General.” Major issues of transparency and accountability remain unanswered. Added to these major anomalies is the fact that allegations of conflict of interest around the disposal of Jammeh’s assets remain rife. Certain individuals who enjoy close proximity to the Barrow Presidency, and then Minister of Justice Tambadou, have been privy to certain strategic sales of properties seized by the government, and some have managed to either purchase such properties at preferential prices, or in one instances reclaimed their properties, under questionable circumstances where the purchase price was not recorded. As a result, it is uncertain if they paid, and if so how much was paid for these properties.
Another reason for such underperformance can be attributed to various methodologies employed by the Ministry of Justice, which over stepped its mandate. It insisted on overseeing the appointment processes of the secretariat, as well as playing an influential role in the President’s appointment of the Commissioners. It also identified the receiver (of Jammeh’s frozen assets) Augustus Prom accounting firm, through a high court order dated 22nd May, 2017. The first high court order was suppose to be for six months but was later extended by the Attorney General and Ministry of Justice to allow time for the Janneh Commission to complete its financial investigations. However, in the interim, the same Justice Minister attempted to have some of the assets unfrozen. This bid was unsuccessful, after Justice Amina Saho-Ceesay ruled that these assets were not to be unfrozen let alone disposed off until the commission had completed its findings. It was later revealed that Jammeh’s assets were in fact sold, before the Janneh Commission completed its work. The same minister also, with President’s Barrow’s support, was given the unusual responsibility to oversee the “disposal” of Jammeh’s assets at this time. He also had the responsibility and prerogative of handpicking the liquidator (Alpha Kapital), which had agreed to a 10% commission in this endeavour. The windfall would have been nearly a colossal D100 million for the liquidator, despite the fact that a prior court ruling had stated that the initial commission requested for by Augustus Prom accounting firm of the same amount was deemed extravagant and outrageously high, and he was beaten down to 3% of commission. Nevertheless, the agreed 10% with Alpha Kapital was later revised downwards. There is no evidence as to whether the awarding of the liquidator contract was done through competitive bidding process or not. There is also little evidence to show that adequate publicity and announcements around the auctions was undertaken. In fact, evidence points to the very opposite where only very few people were aware about the auctions, and how to go about bidding for public auctions. Added to these anomalies, it is highly unusual for the Ministry of Justice and Attorney General to oversee the disposal, and recovery of stolen assets, such responsibilities are usually reserved for an established entity (Assets Management and Recovery Corporation) and over seen by the Ministry of Finance.
Recommendations
The National Assembly should:
· Investigate Mr Tambadou’s actions in selecting Alpha Kapital; and the processes used to dispose of Jammeh’s assets; and whether Mr Tambadou breached Justice Saho-Ceesay’s court ruling of 30th July, 2018;
· Investigate why assets were not lodged with the AMRC as normal practice;
· Investigate whether the Ministry of Justice overreached its powers as per the Janneh Commission Act;
· Investigate whether Mr Tambadou had overlooked Mr Alhaaji Mamadi Kurung’s whistle blower accusations into the complaints leveled against the legal counsel;
· Investigate whether there was any conflict of interest in any member of staff of the Janneh Commission including the secretariat and the minister into the disposal of Jammeh’s assets.
