By Sanna Camara
In the history of Gambian legal jurisprudence, very few women dared the patriarchal nature of Gambian society to come forward and speak up against sexual violence or rape, not least against the most powerful. Even when they do, the victims become subject of serious social backlash and ridicule. That is why a particular Gambian woman, widow of late Basiru Barrow would rather take her chances with Swiss courts than Gambian ones. Just ask Toufa Jallow when she came out with her story of rape by Jammeh.
However, this is not about Toufa Jallow. Rather, it is about a woman, who dared faced Ousman Sonko in Swiss courts – partly emboldened by a team of strong lawyers lined up to seek justice against one of Yahya Jammeh’s most powerful, brutal, yet cunning rightwing men. Another being her family’s long quest for justice for the cold-blooded killing of their father and husband in year 2000 at Sting Corner by a man named Ousman Sonko, marking a turning point in his military career to stardom under a brutal dictatorship of Yahya Jammeh.
Statistics show that women make up to 60 per cent of law graduates in Switzerland, and many of them are highly talented one. I have seen some of them at work for months last year in Switzerland’s Federal Criminal Court. Sabrina Beyeler, attorney at law of the Swiss Confederation was chosen by the Federal Prosecutor’s Office to prosecute former Gambian Interior Minister, Ousman Sonko. While Caroline Renold, Annina Mullis, Fanny de Weck, Stephanie Motz, and Nina Burri took up the task of representing ten victims from The Gambia, cases that added some prosecutorial value to the task of the prosectors in Bellinzona – home of the Swiss Federal Criminal Court.
One of the burdens of Sonko’s crimes is to convince the court that it was committed against the civilian population. According to the presiding judge, citing case law of the Federal Supreme Court of Switzerland, the term “civilian population” is to be interpreted broadly, even though the majority of doctrine favours the inclusion of soldiers and members of the police among the civilian population in times of peace. As far as complicity is concerned, the court saw Ousman Sonko as the main participant in the crimes for which he was tried. With the Office of Attorney General taking seven years to prepare the case for prosecution, the team of five lawyers and attorneys came in as reinforcement to strengthen prosecution’s case
In the judgement, an accomplice is defined as a person who (possibly) intentionally and significantly cooperates with other perpetrators in the determination, planning or execution of an offense. So that Individual acts such as intentional homicide, deprivation of liberty, torture, and the violations of sexual self-determination, the court found that Sonko must carry the burden of responsibility for these crimes.
“Outside of armed conflicts, crimes against humanity are regularly characterised by the unilateral action of state power or other organized armed forces against their own civilian population. In such cases, the concept of civilian population excludes the bearers of state or other organised power, insofar as they actually exercise this power against the civilian population,” presiding judge, Alberto Fabbri, pointed out.
The perpetrator’s knowledge can be inferred from the circumstances of the crime, the historical and political circumstances in which the acts of violence took place, the functions of the perpetrator at the time the crimes were committed, his responsibility within the political or military hierarchy, the direct and indirect relationships between the political and military hierarchy, the scope and gravity of the acts committed, the nature of the crimes committed and the extent to which they are generally considered to be known.
In the TRRC Final Report, the accused is mentioned in connection with various crimes allegedly committed by President Jammeh’s government between 2000 and 2016. The judge cited that the TRRC came to the conclusion that the accused was complicit in the killing of a military commander “L” in January 2000; that he raped “G” several times and committed other forms of sexual violence against her, he had taken part in the investigation panel regarding the attempted coup in March 2006, and played a decisive role in connection with the rally on April 14, 2016 and the handover of the detainees to the NIA. To The Gambia’s Truth Commission, these were sufficient grounds for indicting Sonko, and therefore recommended that he be prosecuted.
By means of Decree No 57 (“National Security [Detention of Persons] Decree”), in force since 22nd July 1995, the Minister for the Interior was authorised to order the arrest of persons in the interests of security, peace and stability in The Gambia. The decree provided for an exemption from liability for all persons who acted on the basis of the decree. Decree No 66 of January 1996 amended Decree No 57, expanding the powers of the Minister for the Interior to now extend the detention of a person in the interests of Gambian security.
On top of the decrees, several other laws were promulgated, such as he The Gambia Criminal Code, revised several times during President Jammeh’s rule. For example, the penalty range for the offense of insurrection (“sedition”) was increased in 2004, 2005 and 2011. In 2013, the penalties for providing false information to the authorities (“false news/false information”) were also increased. According to UN Human Rights Commission and Human Rights Watch, this was intended to deter journalists and whistleblowers from reporting abuses or arbitrary acts.
The Gambia’s Constitution that came into force on 1st January, 1997 and which the court found to be equally relevant to Sonko’s indictment, provided for the incorporation of all decrees issued under military rule into Gambian legislation.
“Article 19(3)(b) of the Constitution stipulates that any person arrested without charge must be brought before a judge within 72 hours of arrest. Article 21 of the Constitution stipulates the prohibition of torture, which is also based on the African Convention on Human Rights adopted in Banjul in 1986, the African Charter on Human and Peoples’ Rights (Article 5) and the UN Covenant II (Article 7) (in force in The Gambia since 22 June 1979).”
However, the prohibition of torture pursuant to Article. 2(2) of the UN Convention against Torture was not in force at the time of the offense relevant to the indictment, as The Gambia only ratified this multilateral treaty on September 28, 2018.
In 2001, the Indemnity Act of 2 August 1982 was revised and state liability was restricted. The court cited that both UN Special Rapporteurs concluded that the Indemnity Act of 2001 gave President Jammeh unlimited powers, promoted a “culture of impunity” and prevented victims from claiming compensation for human rights violations, including torture.
“…The law was triggered by the student protests in April 2000, during which at least 14 people were killed. In the unpublished report of September 2000, the Commission of Inquiry commissioned by the Gambian government blamed the deaths primarily on security force officials and recommended that they be prosecuted and that the student leaders be punished for organising the protests.
“The government announced that it would not prosecute anyone in the interests of ‘reconciliation’ and at the same time presented the ‘Indemnity Act’, which granted impunity to members of the security forces involved in the demonstration. In general, the Indemnity Act provided that in cases of unlawful assemblies, public disorder, riots or emergency situations, the government, its representatives or persons in its service, as well as any authority acting on behalf of the government, could not (or could no longer) be held responsible for any action or omission,” the court said.
It cited several other laws arbitrarily exercised against the civilian population, such as the Police Act (showing of arrest warrant to the arrested person on request [or] as soon as this is possible after the arrest), Prisons Act (prohibited the prison authorities from admitting prisoners without a valid detention order), Public Order Act (participation in an unauthorised assembly or defiance of an order is punishable by a three-year prison sentence).
Ministry for the Interior
According to the defendant’s organisational charts and his statements, the Ministry for the Interior was divided into four departments (Police, Immigration, Prison Service and Fire and Rescue Service). According to Ousman Sonko, all instructions from the president reached him via the permanent secretary, while the instructions of the minister for the interior were issued in writing via the “permanent secretary”, who was directly authorised to issue instructions to the four heads of department.
The police consisted of a number of units such as the “Major Crime Unit” and the “Serious Crime Unit”. The Special Police Intervention Unit (also known as the “Bulldozer”), was established in 2004 and was mainly used for crowd control at public gatherings, major events or riots.
On Prisons, Sonko said the Commissioner of Prisons, in practice, had the title “Director General of Prisons” who reported directly to the minister and was responsible for the administrative management of all prisons in accordance with Article 12 of the Prisons Act.
According to the findings of the UN Special Rapporteur on Torture, there was only isolated evidence of ill treatment by the police and other law enforcement agencies, which would indicate a sporadic practice. In this respect, no widespread or systematic torture was recognisable among the police (“…did not find evidence that those abuses were part of a widespread pattern or systemic practice”). The police only observed the 72-hour rule in some cases, whereas the NIA never observed it.
The Federal Criminal Court also cited the UN Torture Report, the contents of which the UN Special Rapporteur expanded on and confirmed in detail during his hearings before the Office of the Swiss Attorney General in 2018/2019 confirming that torture was widespread and routine in The Gambia.
“Torture is mainly used by the NIA in the initial phase of detention. Torture is increasingly used in cases of actual or perceived threats to national security. The government is not fulfilling its obligation to investigate, prosecute, punish and prevent every incident of torture and ill treatment
“The practice of torture is prevalent and routine, in particular by the National Intelligence Agency during the initial stages of detention. The Government has not fulfilled its obligation to investigate, prosecute and punish every incident of torture and ill treatment or its obligation to prevent such occurrences.
“The following torture methods, among others, are used for ill treatment: Administration of very severe beatings with hard objects or wires; electric shocks, including to the genital area; suffocation by putting a plastic bag over the detainee or using water; infliction of burns with cigarettes; restraint with ropes and burns with hot liquid.
