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Saturday, November 28, 2020

The limitations of the TRRC: How exactly will there be ‘Never Again’?

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Dr Ousman Gajigo

With the muting of possible pardons against Junglers, Gambians should be concerned about where we are heading with the Truth, Reconciliation and Reparations Commission (TRRC).

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Yes, like most Gambians, I appreciate all the revelations that are coming out of the well-publicised proceedings.

The setting of records for posterity will be an invaluable service. However, that is a necessary but insufficient step towards fully coming to terms with the atrocities that occurred under the Jammeh regime and the lessons we need to set for the future.

It is certainly the case that some families will experience some sort of closure in knowing what happened to their long-lost relatives. But for many others, I can imagine that the experience being akin to re-opening a wound that never quite healed.

For certain victims, those proceedings didn’t reveal anything they didn’t know before.

Rather, the recounting of events would be similar to reliving the nightmare without the satisfaction of justice being served if reparations and apologies are the most they can hope for.

This likely absence of solutions for many victims gets at the flaw in the design of the TRRC.

It should be obvious by now that its current design was not fully adapted to addressing the specific historical circumstances we experienced under Jammeh.

Specifically, the issues of reconciliation and reparations are prescriptions for the wrong diagnosis.

Reconciliation would have been appropriate if there had been a situation where there was a general societal strife such that large groups were pitted and fought against each other.

These could have been conflicts between regions or ethnic groups.

In such situations, it is generally difficult to determine individual guilt and responsibility (beyond a few leaders) for most of the crimes.

Specifically, we did not have inter-tribal conflicts.

Not only was there no such inter-ethnic crisis, all Gambian tribes are present in both Jammeh’s victims and perpetrators, which means we are not faced with a scenario where our modern justice system should be ill-equipped to handle.

Under the Jammeh dictatorship, we basically had a criminal enterprise, the APRC, atop which sat Yahya Jammeh.

Through Jammeh’s direct orders or tacit acknowledgement, numerous human rights violations occurred, including murder, torture, rape and kidnapping.

These crimes were directly perpetrated by individuals, which makes it quite easy to assign culpability. As such, all the crimes committed should easily be handled by the country’s criminal code.

After all, determining individual culpability is what the modern justice system is tailor-made to address.

Trying the accused individuals according to existing criminal laws in a transparent manner and through due process would be the ideal way to bring justice.

The reason I emphasise criminal prosecution is that it needs to be stressed that human rights abuses are criminal cases, not civil cases.

Civil cases involve disputes between individuals or organizations, while a criminal case involves a crime against the state that may or may not have a victim.

What’s more, the victim is not necessarily a party to the prosecution of an accused.

This means that even the victim cannot prevent the prosecution of an accused.

The only case in which a victim can stop a prosecution is if he/she refuses to cooperate in providing a crucial piece of evidence.

An immediate implication of this is that forgiveness does not come into play when it comes to criminal cases, as opposed to civil cases.

An accused that acknowledges guilt and demonstrate genuine remorse may benefit from leniency. B

ut admittance of guilt or show of remorse cannot shield an individual from prosecution.

It should now become obvious why reconciliations and repatriations are not appropriate for the most egregious crimes committed by the Jammeh dictatorship.

Specifically, the issues of human rights abuses where crimes are well-defined and specific individuals can be identified as perpetrators are best treated as normal criminal cases.

Unless one is in a failed state, the criminal justice system is the best mechanism for rendering justice and holding individuals accountable.

Even in an unfortunate scenario where the country’s justice system cannot perform as required, the Rome Statute that established the International Criminal Court (ICC) should come to the rescue.

So the design of the TRRC, where reparations and reconciliations are considered central aspects of healing the country, is not suited to the Gambian context.

The revelations coming out are certainly helpful in baring for all to see the monstrosity of the Jammeh regime.

But reparations and reconciliation are far from what is needed to bring justice and closure that are commensurate with the kinds of crimes committed by the Jammeh regime.

Consider how inadequate the issue of reparations and reconciliation are when murder is involved.

For one, the actual victims are not around to accept apologies or payments of any kind. The relatives of the victims may not be ready to accept any apologies or consider it sufficient.

Some relatives may even consider the amounts being offered as insulting and degrading. To even think of offering financial compensation or allowing the possibility of reconciling between parties is to erroneously equate human rights abuses with civil cases rather than the criminal cases they really are.

Particularly important to point out is that reconciliations and reparations would only make the main TRRC slogan “Never Again” an empty phrase.

If individuals such as the Junglers that committed the most serious crimes are being considered for pardons, what lessons does that provide for future perpetrators of human rights abuses? Basically, we are telling them that they would escape responsibility if they just confess everything, regurgitate appropriately-sounding phrases to appear contrite and ask for forgiveness.

Psychopaths, which is what these perpetrators are, would be basically given blank checks.

The outrage being felt by a large cross-section of The Gambian population about the release of some of the Junglers should provide a lesson.

As more of gory details of the human rights abuses are being revealed, the voices demanding real justice are going to grow louder and louder.

When people demand that Junglers face the consequences for their crimes, they are rightly calling for justice rather than vengeance.

To ignore such calls by implicitly equating the two would be to insult not only the intelligence of people but to give short shrift to the victims’ suffering.

And failure to address the flaws could be fatal to the credibility of the TRRC and the entire justice system of the country.

Ousman Gajigo is an economist.

He has held positions with the African Development Bank, the UN, the World Bank and Columbia University.

 

He holds a PhD in development economics. He is currently an international consultant and also runs a farm in The Gambia.

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