By Dr. Omar Janneh (PhD)
In my view the TRRC Act, 2017 has bestowed too much power onto the President to appoint, upon consultation with the Minister and the Public Service Commission, the Executive Secretary to the TRRC [TRRC Act, 2017; section 22(2)]. I hold the same view in regards to the power the Act confers on the Minister to appoint a Deputy Executive Secretary to the Commission.
Overall, the powers conferred to the President by the Act is excessive: The President is empowered to appoint the members (TRRC Act; section 5(1), Chairperson & Deputy Chairperson (TRRC Act, 2017; section 5(2), Executive Secretary (TRRC Act, 2017; section 22(2) as well as fill any vacancies that arise (TRRC Act, 2017; section 12). Further, the President is able to remove Commissioners (TRRC Act, section 10(1-3) and may also be able to remove the Executive Secretary (TRRC Act, 2017; section 22(6). It can be argued that the President may be prejudiced in his hiring, firing and rehiring of some Commission staff.
Further, we must also realise that the President, the Executive Secretary and probably the Minister fought against the tyrannical rule of the previous regime whose human rights abuses the Commission is set up to investigate. To my mind, the conflict of interest is obvious. Some of the victims who have waited so long for justice may see nothing wrong with conflict of interest. To the perpetrators of the crimes (and most likely the international community), the appointments and possible firing/rehiring of conflicted individuals (President, Minister, and Executive Secretary) may be prejudiced and may be justifiably perceived as being fair. I am not a lawyer, but I believe justice has to be seen to be delivered fairly.
[Some questions that will not go away from my mind are: Were the victims or families of affected victims ever asked what they want or expect out of the TRRC prior to the construction of the Act? If not, would it not have been more reasonable to construct the Act at the conclusion of a comprehensive public consultation on the matter? To me, it seems that the Act was constructed without public consultations and it is only now that they are doing the public meetings. If this is true, then the Act is a work of fiction. If they had constructed the Act following due process, they would have a good chance in capturing something in the Act that matches the expectations of the victims. The current Act cannot deliver what it promises – the last time I checked, the streets of the Gambia were not paved in gold.
Why do we like to put the cart before the horse in the Gambia?]
One would have thought that such appointments should not have been left, at best, in the hands of an individual. The work is complex and potentially toxic and so appropriate checks must be applied to ensure that appropriate vetting took place so that the most suitably qualified individual is always recruited. This can only be effectively carried out if we take corrective measures that ensure that we carefully plan what it is that we want to do and assemble a team composed of individuals who have the intuition to do such complex work.
Thus my suggestion for a better procedure in regards to composing the team in the TRRC Secretariat, and where possible staff to the Commission, would have been as follows:
·Following the outcome of a public consultation and the drafting of the TRRC Act, an impartial body composed of suitably qualified individuals with integrity, vision, good track record (in recruitment and selection) and influence be constituted to consider applications to the post(s) through a competitive process which follows good standards and processes (by the way, using a GMAIL is unacceptable!);
·The body makes recommendations [to e.g., Parliament (– a body) and not the President or Minister as the former is definitely conflicted] to appoint the individual(s) qualified for the post, based on merit.
On the appointment of the Executive Secretary to the TRRC: It is my view that the TRRC Act, 2017 conferred too much power onto the President to appoint an individual, upon consultation with the Minister and the Public Service Commission, to this post. Anyone who has read the TRRC Act, 2017 and knows the academic qualifications, skills and competencies which are explicitly stated and implied to do the work would know that the President has got the appointment of Executive Secretary to the Commission very wrong. For a start, the President is conflicted – he fought against the previous regime and should not have been empowered by the Act to appoint an Executive Secretary to the Commission who also brings conflict of interest to the post. Most of us, if not all, know that Dr. Baba G. Jallow was wronged by the former regime, resulting in his exile in the US for some 16 or more years, so he may well have to appear before the Commission.
I think the perpetrators of the crimes may be justifiably concerned that the process may not be impartial or perceived to be fair. Is this what we mean when we say new Gambia?
Heading the Secretariat is a challenging assignment, but also a potentially rewarding one if the work of the Commission can be successfully completed as it will make attractive the resumes of those involved.
But what about the rest of us when the TRRC goes wrong, as it is likely to? While it can be considered almost wrong or a weakness to shy away from challenges, we must declare if some challenges are a little beyond our capabilities, i.e., whether, in the interest of doing the job well, one is suitably qualified to take on some challenges. Having read the TRRC Act, 2017 which specifically addressed the criteria and responsibilities of the Executive Secretary, it is my view that Dr. Jallow could have declined the job offer from the President on grounds that he does not fulfil most of the items which could be broadly described as essential and desirable. Further he too must know that he brings conflict of interest to the job.
I have come to the decision, with regret, that Dr. Jallow is not suitably qualified for the post of Executive Secretary of the Commission and some of my reasons can be summarised as follows:
1. That there is conflict of interest because he was a victim of the rights abuses of the former regime. The perpetrators of the crimes may have legitimate concerns that the Commission is prejudiced against them in appointing him to this role; the process must be perceived to be fair and his presence in the post does not give the process the impartiality it deserves;
2.That he does not have the experience of 10 years in administration or management (TRRC Act, 2017; section 22(4)(b) required to hold the post. Although I describe the TRRC Act, 2017 as a work of fiction, there must be a good reason why the requirement of at least 10 years in administration or management was inserted in it. Indeed, upon reading the Act, one can explicitly see the need for an appointee to fulfil these criteria, with many more reasons being implied;
3.That it is doubtful if Dr. Jallow possesses competencies in the other duties and responsibilities required to effectively and with distinction carry out the duties of the post such as outlined in the following sections of the TRRC Act, 2017: 24; 26; 27(2); 28; 31(2)(a)(i-ii); and 32(a)(b).
4.In regards to item 3 above, one can argue that the TRRC Act, 2017 empowers our Dr. Jallow (the conflicted Executive Secretary) to appoint and engage consultants, and advisers as the Commission may require (TRRC Act, 2017; section 24(1) & (3). The problem with him appointing staff or Consultants to the Commission is that he cannot be perceived to be impartial in his appointments because he was a victim of the rights abuses the Commission is set up to look into. And please allow me to insert some cautionary notes here. In order to avoid the cost of this time-limited Commission spiraling out of control, in the best case scenario, the Executive Secretary must be able to do much of the work himself or recruit an individual(s) who can do what he cannot do; that individual must also have considerable influence. On the issue of spiraling costs, Dr. Jallow’s office is in a hotel, which in all likelihood is not free. Our governments are quite good at saying and writing what they want to do for the people they are meant to serve – as if money grows on trees, but very poor – without much effort, at costing and doing things well, and a large percentage of us fall so easily for their promises – every time.
I do not doubt Dr. Jallow’s abilities as a fine historian and a fine writer too, which is necessary for this work, but I question his other skills and competencies to do this assignment well. We must not confuse title/knowledge/capacity to do a job with leadership. Titles hold no value when it comes to leadership or capacity to do a job and do it well which is always of paramount, most especially here. Leadership may often be assigned, or awarded, but true leadership is earned and one has to invest in it for a considerable amount of time to acquire good leadership skills. By appointing someone with even lower qualifications, leadership skills and influence as Deputy Executive Secretary, I believe we are missing the opportunity to establish a strong team in the Secretariat of the TRRC.
On the appointment of the Deputy Executive Secretary to the Commission: The TRRC Act, 2017 empowers the Minister to appoint the Deputy Executive Secretary to the Commission upon consultation with the Executive Secretary (TRRC Act, 2017; section 22(7). However, the appointment of Ms Musu Bakoto Sawo to the Deputy Executive Secretary could have passed some very basic checks. In my view, empowering the Minister and the conflicted Executive Secretary to appoint a Deputy Executive Secretary undermines the impartiality of the Commission and may be perceived improper. Further, it is not sufficient for the (conflicted) Executive Secretary to give the recommendation to appoint Ms Sawo as Deputy Executive Secretary a nod without the (conflicted) Executive Secretary exercising his duties by using the provision the Act confers upon him, in regards to appointments.
Here, section 24(1) of the TRRC Act, 2017 says ‘The Executive Secretary may appoint through a competitive recruitment process, such other staff as the Commission may require.’ In my view, it would have been reasonable, justifiable and proper for the Executive Secretary to work within the spirit of the provision of the Act in regards to making his position known to the Minister so that public funds are used appropriately. After all, it is the Executive Secretary who has responsibility over the use of the Commission’s funds (TRRC Act, 2017; section 28). In short, did Dr. Jallow ask the Minister if the recruitment of Ms Sawo to the Commission pass the competition test (TRRC Act; section 24(1)? I suppose I can see how the (conflicted) Executive Secretary could feel awkward asking such a question, because his own appointment may not have passed the competition test. Will we ever know?
The point here is that if we can shout our lungs out when we are on the touch lines, we must ensure that we do what is expected of us when we are in theatre. It is an insult to our intelligence to assume that we can be fooled; perhaps some can be, but not all. We have all lived through some failures (-I mean governments but I suppose applicable to self). Therefore, going forward, we must work in a manner that shows that we have understood and learnt from past failures. This reflective practice is important for our recovery. Let’s abhor mediocrity; we can either choose to do the TRRC well or ask the victims what they want/expect for the wrongs they endured under Jammeh. To do it well, we would need to bridge the capacity gap by securing the engagement of highly skilled individuals, Commissioner(s) and an able Chairperson who bring impartiality to the task and can help direct the functions of the Secretariat (TRRC Act, 2017; section 23(1)(f) and the Commission. And the recruitment and selection of staff to the Commission must be done by individuals who will not undermine the impartiality of the Commission.