Say you catch a thief, and I’m not talking about the government types, we never catch those, because they come in suits and nice kaftans, and they are too slick to get caught by a mob. I am talking about a thief that snuck into a house, and got caught just as they left with their loot. The thief is taken to court, prosecuted, found guilty, and sent to Mile Two. Now, let’s say you catch a rapist, and they too are found guilty (I can be hopeful) and sent to Mile Two. Then a parent found someone raping their child, they kill the rapist, the parent is arrested, charged with murder, found guilty and also sent to Mile Two. Now you have three “convicts”, a thief, a rapist and a murderer. They all end up in Mile Two.
The question then becomes: What is the purpose of incarcerating all three individuals? Is it to deter them from committing another crime by keeping them in Mile Two? Is it to rehabilitate the thief and turn them into “good” citizens? Is incarceration meant to make the convict suffer for what they have done? Does imprisoning the thief bring closure for his victims? What does society gain by punishing someone that violates the social order? What is the actual purpose of imprisonment? Is the purpose of incarcerating the thief, the rapist, and the parent that killed the rapist, the same? Is the carceral system the best way to hold “convicts” accountable for their actions? Before colonialists came to this space we call The Gambia and introduced the carceral system anchored on collective punishment, how did we, as African people, handle those whose actions have been adjudged to go against the social order?
In the old days, our ancestors were regarded as the invincible hands that helped regulate our societies. These regulations were done through a social order underpinned by customs and traditions that everyone was expected to abide by. In many instances, offending the social order, such as beating up on your mother, was not only seen as an offense against the mother, it was seen as an offense against the whole community because of the status of mothers in the community. The custodians of the customs and traditions were the elders of the society who had a duty to defend the social order.
When the ancestral spirits were made angry by those who violate the social order, it was believed that they could wreak havoc on the whole community. Therefore, people were mindful of offending the social order because who would want to offend the whole community you live in? Our ancestors had a point of reference, and it was based on customs and traditions that were formed over time and served as the foundation of the social order which guided the conduct of the community members. Punishment often took the form of ostracizing the offender, making some form of amend to the victims, or death in some cases, especially if a life was involved. In many instances, restorative justice, anchored on dialogue, was at the heart of addressing violations against the social order. I am not saying this was a perfect system; I am saying that our ancestors had a point of reference that aligned with their tradition, customs, culture, values and morals. I am saying that we should reevaluate the rules we want to live by as a people and not simply copy and paste a mishmash of contrasting judicial systems and try to fit them in this disparate box we call Gambia. Unfortunately, when we talk about prison reform, like almost everything else we subsist on, we must dismantle the foundation that the very idea of punishment and justice is based on. We must question the very idea of crime, punishment and prisons!
In the old days, some infractions within the family compound were dealt with by compound elders (sometimes with other elders from other compounds). If the infraction involved individuals from different compounds, it becomes a Kabila/ward issue. An infraction beyond the ward may be charged to the community elders, and often that is the highest stage at the community level. Communities set their own rules for the maintenance of their social order, and these rules or laws derived their validity from the customs and traditions of the people. That is how some customs or traditions evolved to form what we so-called “educated” ones call customary law, and these laws covered our interactions with one another as well as the larger society.
Fast forward to today, and you will find that a lot of the laws we maintain unyielding fidelity to, were promulgated to allow the colonialists to control us. And when the colonialists left, many of those laws were maintained, and the control of the people remained tight. As we use these colonial laws and colonial “criminal” justice system, we should understand that we are using a system that was designed to keep us under control and allow a few to wield power over us, all in the name of keeping us safe.
Since the colonialists “left”, successive governments have continued to use these same judicial systems to consolidate power, control citizens, and go after their enemies all in the name of “maintaining law and order.” The cornerstone of this colonial justice system is retributive and adversarial. It is the mindset of an individualistic society and anathema to our collective inclinations. Everything is about fighting it out in a court of “law”. For us Africans, it is a judicial system used by despots and tyrants like Yahya Jammeh to amass wealth, favor those in their circle, and exterminate anyone that stands in the way of their power and wealth.
The law loses its soul; in fact, it loses its very essence and purpose, when it is used by any government to abuse the citizens it’s actually supposed to protect. The law is supposed to regulate society; it’s not supposed to be used by the government to legally abuse citizens and sanction lawful impunity! When the law becomes the main vehicle of impunity, the people are under no obligation to ride in it. Over several years, Yahya used the law to abuse Gambians and sadly, many simply acquiesced and went along with the abuse, a common case of learned helplessness. Some clear instances of this abuse is the arrest and detention of Halifa Sallah during the abuse of Gambians Yahya called witches. Another instance of this abuse is the case of Solo Sandeng, and the subsequent arrest and abuse of UDP members that sought to find him.
That some of us hail this abuse as justification to criminalize otherwise decent human beings is abhorrent and shameful to say the least. For simpleminded folks that claim the “law is the law”, slaves should never revolt against slavery, and Mandela was rightfully imprisoned because as the unthinking zombies like to regurgitate “laws are to be obeyed.” Sadly, when we talk about any judicial reforms, we still anchor the basis of these reforms on colonial paradigms, as if we didn’t have any system in place before the colonialists came. Even sadder, many a decent human being will get caught up in this adversarial and colonial justice system, that those with power will continue to abuse even more, by going after their enemies, real and imagined.