By Njundu Drammeh
‘The self-perpetuating rule of the recent past, however, soon gave rise to the abuse of office and related vices which negated the total welfare of the Gambian people. The sovereign people of The Gambia therefore endorsed the change of government on 22nd July 1994 to rectify such evils.’ Preamble of the 1997 Constitution of The Gambia
In the lines above we are told that the people of the Gambia endorsed the illegal overthrow of the democratically elected Government of Sir Dawda Jawara, an act which was done ‘to rectify such evils’ which ‘gave rise to the abuse of office and related vices which negated the total welfare of the Gambian people’. This is where our collective protestation should have begun. Who endorsed the overthrow of that democratically elected government? Legally, the Jammeh Government, the AFPRC which birthed the APRC, was ‘illegal’ ab initio.
Morally, it was ‘immoral’ from the word go because an immoral means was used to ‘usurp’ the powers and mandate of the people, their sovereign will. An immoral means cannot give a moral end, cannot justify the end however golden or excellent the end is or was. So if anything was unconstitutional, and which vitiated the constitutionality of whatever constitutional act was done thereafter, it was the overthrow of the people’s government. Everything after was a whitewash. ( The African Commission on Human and People’s Rights, in Jawara Vs The Gambia (2000) AHRLR 107 (ACHPR 2000) ruled that “the military coup d’etat was therefore a grave violation of the right of the Gambian people to freely choose their government as entrenched in article 20(1) of the Charter…..”)
But I digress….. I share my ‘butut’ on the appointment of Alagie Barrow as the Director of Research at the Truth, Reconciliation and Reparation Commission (TRRC). There is near unanimity on his suitability for the post; his character, professionalism, competence, brilliance, intelligence and literary prowess unquestioned and unimpeachable. That ‘Eureka’ shout one does when the man and the position dovetail perfectly. What is being questioned is how impartial he would be when the TRRC begins to investigate cases, take statements from victims and witness and document these alleged violations, the work of a research. I would state my personal position on that.
But firstly, let me be upfront regarding a certain misconception some of hold as being the raison detre of the TRRC. I want to state categorically that the TRRC is not set up to find out only what human rights violations Yahya Jammeh personally perpetrated or were carried out on his order. Would not that be unfair and unjust? Yahya was not the only villain of the piece, even if the chief ‘protagonist’.
Some committed human rights violations in him name, and I can bet unbeknown to him. Some abused their powers because they thought they have Jammeh’s back. Some abused the authority they had, while some exploited the relationship they had with Jammeh to perpetuate human rights violations and abuse. Some went out of their way to dehumanise and maltreat to win or curry Jammeh favours. Whatever, as far as I know, the TRRC’s objectives, as stipulated in Section 13 of the TRRC Act, are to
“(a) create an impartial historical record of violations and abuses of human rights from July1994 to January 2017, in order to-
(i) promote healing and reconciliation,
(ii) respond to the needs of the victims;
(iii) address impunity; and
(iv) prevent a repetition of the violations and abuses suffered by making recommendations for .the establishment of appropriate preventive mechanisms including institutional and legal reforms
(b) establish and make known the fate or whereabouts of disappeared victims;
(c) provide victims an opportunity to relate their own accounts of the violations and abuses suffered; and
(d) grant reparations to victims in appropriate cases.”
Thus, the TRCC will try ALL PERSONS, AUTHORITIES, INSTITUTIONS or ORGANISATIONS who bears the greatest responsibility for human rights violations in The Gambia, and Yahya was not the only one (and I presume he is innocent until the TRRC finds him guilty). Let it clear that each one of us would have to bear his or her own cross- so stop thinking that Yahya would be made to carry your cross or burden or be held accountable for your acts of commission or omission in relation to human rights violations and abuses from July 1994 to January 1997. And Section 2 (Interpretation) of the TRRC Act defines “human rights violations or abuses” to include-
(a) the commissions of acts of torture, unlawful killings, sexual and gender based violence, enforced disappearances of persons, inhumane and degrading treatment; arbitrary arrest, detention without trial; whether committed in isolation or as part of a crime against humanity; whether committed individually or in concert with others;
(b) the ordering instigation, incitement, aiding and abetting, counselling or procuring any of the acts under paragraph (a).
Can anyone provide evidence that Mr. Barrow was involved in the commission of a human rights violation or abuse, as defined in Section 2 of the TRRC Act? Such evidence should make the appointment of Mr. Barrow untenable. Bring it out and we intensify the heat on the appointing officials. I doubt if this would be proven.
There is the serious argument that Mr. Barrow’s appointment raises serious questions of ‘conflict of interest’.
I have not read yet what that conflict of interest is and who is actually conflicted. It is Mr. Barrow or the appointing officers? Is Alagie conflicted because some of us think he was a ‘victim’ of Yahya’s atrocities or human rights violation? Was he actually a victim? How? Credible information out in the open is that Mr. Barrow was part of the group which attacked State’s House on 30th December 2014. On that ground, some argued he is a ‘victim’. I cannot fathom how…. Until the attack on State House, I never heard or read or told about Alagie’s brush with the power that be and so I cannot understand how he was a victim of Yahya. Who can show such a record? According to Section 2 of the TRRC Act, a “victim” includes-
(a) a person who, individually or together with other persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of rights-
(I) as a result of a violation or abuse of human rights, or
(ii) as a result of the commission of a crime;
(b) a person who, individually or together with other persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of rights, as a result of such person intervening to assist persons contemplated in paragraph (a) ; and
(c) the relatives or dependents of such victims as may be determined by the Commission.
From this definition of who a ‘victim’ is under the TRRC, can we authoritatively say Alagie is a ‘victim’? He and his colleagues travelled to The Gambia, attacked State’s House with the sole purpose of overthrowing the Jammeh Government, and he and some others escaped.
When the news of the attack broke out, a lot of us prayed for their success, praised them for their heroism and cursed Jammeh for the indescribable terror he had enveloped the nation in. Until this day, Alagie and his fellow attackers remain my heroes, for that sacrifice was so that we can live in dignity and freedom, actuated by the desire to free their fellow Gambians from the shackles of tyranny.
Granted Alagie was convicted in the USA, under an archaic law, for his role in the overthrow of a foreign Government and served time there. How does that conviction bar him from holding a public office in The Gambia? At the time of the States House attack, he wasn’t holding any public office in The Gambia. He was not convicted by any Court in The Gambia. The TRRC Act has a provision regarding appointments of members of the Commission (Commissioners), in S.5 (3) which disqualifies one from being appointed a member of the commission if he or she ‘(a) is a registered member of a political party; (b) is an un-discharged bankrupt; or (c) has been convicted of a felony.’ It is a fact: Subsection 5(3)(c) does not disqualify Alagie because he is not appointed as a Commissioner.
I don’t know Alagie’s ToR or what his main responsibilities would be. But I am sure he would not work alone or be the sole ‘checker’ of whatever reports he works on or whatever case he researches about. He would work in a multi-disciplinary team, with fellow Directors responsible for other areas. Why do we then think that he would be able manipulate evidence, concoct evidence, or just be vindictive because he hated, presumably, Yahya and his Government? What if he would have research assistants working under him? What if there would be a Director of Prosecution in the Secretariat who would depend on the ‘research findings’ to make a foolproof case on behalf of the Commission?
Would Alagie’s appointment in any way dilute or compromise the independence of the Commission? Certainly not, since Alagie is not appointed a Commissioner and it is the Executive Secretary who would be directly answerable and accountable to the Commission. Section 6 guarantees the independence of the Commission, as a body which shall be ‘impartial and fair in the performance of its functions’ and which shall ‘not be subject to the direction or control of any person or authority.’ To further strengthen that Section 11 provides that ‘a Commissioner or a former Commissioner shall not be subject to civil or criminal proceedings for any act done or omitted to be done in good faith in the performance of his or her official functions.’
The Functions of the Commissioners, that 11 person membership Commission, are clearly stipulated in Section 14 as thus:
(1) The Commission shall initiate and coordinate investigations into-
(a) violations and abuses of human rights;
(b) the nature, causes and extent of violations and abuses of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations and abuses;
(c) the identity of all persons, authorities, institutions and organisations involved in such violations;
(d) the question whether such violations were the result of deliberate planning on the part of the State, its organs or other groups or an individual;
(e) the gathering of information and the receiving of evidence from any person, which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victims; and
(f) determining what evidence have been destroyed by any person in order to conceal violations and abuses of human rights.
Alagie and his December 30th coupists are my heroes and so I think Alagie is more than suitable to be the Director of Research at the TRRC Secretariat. If some people believe that Yahya and his fellow junta overthrew the Jawara Government on behalf of the people, and because of the alleged corruption of that Government, not its human rights record, then why should be it illegal or wrong for another group of people, on behalf of the same people, to overthrow the Yahya Government, not because of corruption but for its gross human rights violations and abuses? See the reasons for the two scenarios: the July 22nd was for gross corruption and administrative malfeasance; December 30th was for gross human rights violations and abuse.
Which one was for the people, especially considering what we know today? As stated in the American Declaration of Independence, I too believe that ‘……“Governments long established should not be changed for light and transient causes…..But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
The 22 years of Jammeh rule was characterised by ‘a long train of abuses and usurpations, pursuing invariably the same Object” and thus every attempt at overthrowing his Government was a revolutionary action, justified in the eyes of man and God. The causes were not ‘light and transient’. The fence ate up the crops. The Government criminally conspired against the people it claimed was protecting. The 1997 Constitution became a piece of ‘printed futility’, regularly and casually ignored or altered when Jammeh wanted. We had a Constitution without effective constitutional implementation (promoting, enforcing and safeguarding), existence institutions mangled. The threat to our journey to constitutionalism was not the content of the 1997 Constitution but rather the arbitrary manner in which it implemented, a certain cherry picking. The ‘rule of law’ became ‘rule by law’.
Alagie and the December Coupists may not be your heroes. Am fine with that. Robinhood was a criminal in the eye of the law; for the poor farmers he was a good man. Your terrorist is my freedom fighter. Your villain, my hero.
Let it be known that Alagie was not handpicked, a la political appointment. The job was advertised and he applied and was interviewed for it. Which interviewer would have decided not to give this job to the man who can?
