Vetting is one of the key mechanisms and processes of transitional justice process. It is conceived from the background of the incidence of gross human rights violations, abuses of power, corruption and other forms of malpractices perpetrated in a particular society due to armed conflict or authoritarian rule. These malpractices are largely perpetrated by security institutions and officers such as the military, police, intelligence, and prisons, as well as by judicial institutions and other institutions and individuals in the public sector such as in the executive or legislative branches of government.
Consequently, vetting process is designed with the sole the objective that a society that underwent armed conflict or authoritarian rule should cleanse its security and public sector institutions by weeding out security officers and public officials found to have committed human rights violations, abuses of office and acts of corruption, among other abuses. To obtain clear view of the nature and objective of vetting process the ICTJ policy brief on vetting described it as a process,
“that (a) is designed to remove, prevent the recruitment or integration into public service of, or otherwise disempower state agents or former combatants who committed human rights violations or who engaged in other forms of serious professional misconduct; (b) occurs after periods of large-scale human rights violations, systemic corruption, and other serious abuses of office; and (c) is mainly carried out in order to build or restore accountable, legitimate, and effective public institutions. Transitional vetting is a one-off process with a unique, ad hoc nature.” (ref: Reflections and Recommendations for Transitional Vetting, ICTJ Policy Brief).
In light of this, the current Vetting Bill 2024 is not addressing the purpose of vetting in terms of transitional justice. A review of the bill will show that even the words, corruption, abuse, or human rights violations are not mentioned in the document. This bill is a misrepresentation of vetting in the context of transitional justice and should therefore be rejected.
Review of the Bill
Section 4: Establishment of the Vetting Agency
This section is seeking to create a permanent agency. This is inimical to vetting in the context of transitional justice. There is no need for a permanent vetting agency as it is supposed to be a one-off exercise that vets security and public institutions to ensure that all individuals found to have committed human rights violations, acts of corruption and other abuses are identified and removed. This means sections 5 – 13 relating to the appointment of the Director and staff of the Vetting Agency not only are irrelevant and must be removed but also concerning. A close scrutiny of this Bill on shows that it will only create a culture of witch-hunting against perceived and real opponents of the Government in place.
For example, the appointment of the Director under Section 5 is to be done by the President in consultation with the Public Service Commission, with no National Assembly involvement. This means the President would easily appoint any man or woman to do his bidding with no checks and balances. Furthermore, Section 12 gives total immunity to staff of the Agency for which they will not be subject to any civil or criminal proceeding for whatever they do in the performance of their function. No public official should be above scrutiny hence it is scandalous that the drafters of this Bill could imagine such a status for the staff of the Agency as if they are infallible men and women!
Section 14: Functions of the Agency
This section is not saying anything about vetting in the context of transitional justice. It is simply talking about security in a rather broad, vague, and open-ended manner.
It must be noted that institutions conduct background checks in their recruitment process. The Public Service Commission also provides background check in their recruitment process. The National Assembly provides vetting for certain appointments. All of these are ongoing and permanent processes that ensure that individuals appointed in various security and public institutions are adequately screened.
Hence there is no need for a permanent vetting agency that conducts security screening of current and future officials for institutions. Rather what a vetting process in a transitional justice process does is to vet or screen the current officers and staff of security and public institutions in order to identify and remove individuals who were perpetrators of corruption, human rights violations, and other abuses during the armed conflict and authoritarian rule.
For example, the TRRC already mentioned about 40 public officials including security offices who should be removed from office. Until now the Government has failed to disclose the names of these officers or indicate who has been asked to leave or not, and why. This is what needs to be done. Furthermore, we also notice several people who were mentioned during the TRRC hearings about their commission or omissions leading to human rights violations during the Dictatorship but who have been either maintained or brought back into public office. A proper vetting processes would have identified these people to be removed.
Subsection 14(e) is particularly concerning which highlights the misplaced nature of this Bill when it makes the vetting agency to report to the National Security Agency and the National Assembly Defense and Security Council.
“(e) regularly report to the National Security Council and the National Assembly Standing Committee on Defence and Security, of its decisions.”
What is the value of such a function given the role and function of the National Security Council and the Defense and Security Committee? This provision hereby transforms vetting into a national security issue rather than a human rights and accountability mechanism for the purpose of preventing human rights violations and corruption and other abuses. Why is the Agency not mandated to report to the NHRC or the National Assembly Select Committee on Human Rights and Constitutional Matters, as well as to CSOs?
Section 15: Powers of the Agency
The powers expressed in this section reflect the ‘security and intelligence’ nature of this agency, which is irrelevant and a misrepresentation of a transitional justice vetting process. This section needs to be removed or reviewed to reflect the exact powers of a vetting mechanism for the purpose of transitional justice.
The powers of a transitional justice vetting process is to have the authority to seek information about human rights violations that had occurred and the perpetrators and enablers of these violations and acts of corruption and other abuses. These are pieces of information obtainable from the TRRC, commission of inquiry reports, official records, other sources such as victims, civil society groups, and political parties as well as from laws among others. The vetting committee should be able to summon individuals as alleged perpetrators, enablers and indeed as victims among other witnesses such as experts, officials and any other relevant persons or institutions to provide information and other evidence of violations, corruptions, and abuses to reach informed decisions.
Sections 16 – 23: Establishment of the National Vetting Agency Board
These sections do not relate to a vetting process in the context of transitional justice. They seek to establish a permanent structure which is not a requirement or objective of a vetting process in the context of transitional justice. A vetting mechanism in a transitional justice environment is an adhoc body that has specified duration, purpose, and functions.
Section 17 is about the appointment of the Board of the Agency. The power to appoint is vested in the President in consultation with the Public Service Commission. Here again, the National Assembly is totally sidelined hence turning the Agency into the full control of the Executive. Even though the independence of the Agency has been expressed in Section 13 which states it shall not be under the control of any person or authority, the appointment procedures expressed clearly weaken its independence.
PART V – SECURITY CLEARANCE
The entire provisions of Part V are purely focused on security and intelligence and not vetting in the context of transitional justice. This Part needs to be removed or comprehensively reviewed to bring them in line with the process of vetting in the context of transitional justice. The most concerning part of this Part is Section 26.
Section 26: Unacceptable security risk
The elements of this section are of huge concern as they potentially create the grounds for profiling, witch-hunting, discrimination, and unfair treatment against individuals on grounds that are unrelated to their past commission or omission of human rights violations, corruption, and other malpractices. This is because the elements prescribed therein that constitute ‘security risk’ have nothing to do with human rights violations and corruption as these are not mentioned. Rather this provision is focused entirely on the security of the state. This means this section has nothing to do with vetting in the context of transitional justice.
Issues considered ‘unacceptable security risk’ such as the following clearly create the environment for potential profiling and discrimination against individuals who may be perceived opponents of the government and therefore denied employment or removed from public office. These ‘unacceptable security risk’ elements are completely not within the realm of vetting within the transitional justice context.
a) ‘Not loyal to The Gambia and its constitutional orders and values.
b) has a preference or may be manipulated, induced, or blackmailed to help a group, person, organization, or foreign government in a manner detrimental to the interests of The Gambia; or
c) displays conduct that indicates –
(i) a personality of emotional or mental disorder.
(ii) lack of judgment or discretion.
(iii) dishonesty.
(iv) lack of self-control or willingness to comply with rules in a manner that raises doubts about that person’s reliability,
(v) untrustworthiness; or
(vi) lack of ability to protect classified information.
(2) A person may equally be considered as an unacceptable security risk if his or her spouse or other close associate falls within sub-section (1).
These above provisions have nothing to do with vetting rather they provide the grounds for unfairly targeting an individual in terms of protecting the Government, the President or some other person, or to cover up abuse, violations or corruption. These are broad and vague items that would be difficult to determine. Furthermore, these provisions violate the fundamental rights and freedoms of Gambians in expressing their disagreement or engaging in protests, litigation or opposing the government or the president for any reason for which they could potentially be denied employment or removed from office since their opinions and actions could be termed as security risks.
If a spouse of a public officer is an opposition politician, or a journalist, a human rights defender, or an activist or anything, that public officer can be victimized on the basis of what his or her spouse does, if the government does not like what the spouse does. Similarly, a person can be denied a job or removed from public officer because he or she has a friend, brother, sister or some associate who is not liked by the government hence the Vetting Agency can declare such a person a security risk. That’s victimization.
Section 37: Inspector General of the Agency
This provision presupposes a permanent structure. As highlighted above, a vetting mechanism in the context of transitional justice need not to be permanent. It is adhoc. Therefore, this office is not necessary.
Gaps in the Bill
1. The bill should rather make direct reference to human rights violations, corruption and other abuses of office as were committed during the former AFPRC/APRC regime as highlighted in the TRRC Report. In this bill, there is not even a mention of the words, human rights, violations, corruption, or abuse.
2. The bill should identify which institutions are to undergo vetting since not each and every institution should be targeted. The institutions necessary to target are the following, but not limited to these:
a. The Gambia Armed Forces
b. The National Intelligence Agency
c. The Gambia Police Force
d. The National Drug Law Enforcement Agency
e. The Gambia Prisons Services
f. The Judiciary
g. The National Assembly
h. The Cabinet
i. Ministries, Departments and Agencies
3. The bill should identify the positions and ranks that should undergo vetting. Not every security officer and public officer is required to undergo vetting because that is impractical and could negatively impact on institutions. Rather a certain category of positions or ranks should undergo vetting because of their level of responsibility which if done properly will serve to cleanse the culture of abuse and create a future of a culture of human rights and the rule of law.
4. The duration of the vetting process should be specified which should not last more than 12 months.
5. Reference and sources of information for the work of the vetting process should the reports of commissions of inquiry, TRRC and the laws of the Gambia as well as witnesses, experts, institutions, groups, or communities among others.
6. The processes for the establishment and the appointment of members of a vetting committee, and their powers and functions should be outlined. The appointment of these officers cannot be confined to only the President. There is need for parliamentary oversight.
7. The outcome of the vetting process and the decision-making process as well as matters relating to affected persons and institutions should be outlined. The National Assembly has a clear role in the endorsement and enforcement of the decisions of the vetting process.
8. The vetting committee should develop the necessary templates as guidelines, processes, structures, and tools for future use by security and public institutions to ensure that henceforth that recruitment and retention of individuals are transparent and in line with human rights standards.
TRRC and Vetting
In its Final Report, the TRRC made mention of the need to provide adequate training of all soldiers in areas of relevant international law, such as international humanitarian law, which includes the Geneva Conventions so that soldiers “understand the duty to respect
fundamental rights and freedoms, including principles of hors combat and civilian status.”
Similarly, the TRRC called for the total overhaul of the NIA recruitment process and “introduces more stringent essential requirements at the minimum to ensure the
institution hires individuals who possess minimum academic qualifications and professional experience to effectively and competently carry out the required functions of the institution.”
From the foregoing, it is obvious that what the TRRC envisages is a vetting exercise which would address the issue of human rights violations which were prevalent during the dictatorship and perpetrated by security officers. Hence the objective of vetting is to prevent such malpractices from occurring again by ensuring that henceforth security officers are well trained in human rights and recruitment is based on clear professional standards.
In accepting these recommendations, the Government stated this in its White Paper in Paragraph 66,
“The Government accepts the recommendations of the Commission. The Government, however, notes that reform of the security sector goes beyond training, and includes other efforts to restructure the sector with a focus on evaluating personnel composition and competence. In this light, the recommendation forms part of the wider ongoing Security Sector Reform process where the Government seeks to ensure respect for and protection of human rights of all by the security sector with plans to restructure the army, set up a National Security Office and a Vetting Agency following the enactment of the Vetting Act to remove individuals responsible for abuses from public office.
From the foregoing, it is clear that the Government itself perceives vetting as part of security sector reforms. It views vetting as an exercise to identify and remove security officers who have been found to have committed human rights violations. In his aims and objectives for this bill, the Minister of Justice Dawda Jallow acknowledged that vetting is an important part of the security sector reforms.
Unfortunately, the Minister veered off track in the rest of his objectives when he introduced the idea of a permanent vetting structure and making reference to “access to sensitive information.” Vetting exercise in the context of transitional justice is not about access to sensitive information which would require security clearance. Hence this bill is completely off track and certainly not in line with transitional justice.
Conclusion
The Vetting Bill 2024 is a misrepresentation of the principles and objectives of vetting in the context of transitional justice. The bill is rather focused on state security and not human rights and justice for the purpose of preventing future abuses and ensuring good governance. It is not meant to cleanse security and public institutions of off perpetrators and from the culture of abuse of human rights and corruption. Rather this bill is focused on state security and intelligence which are grounds for weaponisation and politicization of the vetting mechanism.
The bill as drafted will introduce and legalize political witch-hunting and victimization for political objectives. It will further entrench the culture of human rights abuses, corruption and abuse of power, and provide cover up for perpetrators. The bill at the end of the day will silence citizens because public officials will refrain from saying r doing anything that would make them of being suspected of the elements mentioned in Section 26 (1) and (2). This means they will also ask their friends and family members not to be openly critical of the Government just to save themselves. This means this bill will greatly undermine democracy and good governance in the country.
This bill must be rejected. A new proper vetting bill should be drafted for the purpose of attaining the objectives of transitional justice and preventing future human rights violations.
Reject the Bill.
