By Lamin J Darbo
Rude and arrogant are the nicer appellations being thrown at Yankuba Touray on his refusal to testify before the Truth, Reconciliation and Reparations Commission (TRRC).
He pleaded immunity under the 1997 Constitution of the Republic of The Gambia (the Constitution).
Given his antecedents as member of the military junta – the Armed Forces Provisional Ruling Council – that overthrew the PPP government, and his cabinet-level status in the successor APRC government, Yankuba Touray is a person of interest to the TRRC process.
The former president is sipping tea and hallucinating about a return to power in Equatorial Guinea. Edward Singhatey, and preacher man Sanna Sabally, are outside the jurisdiction.
Sadibu Haidara’s abode is the eternity that awaits all humanity. What flitting and transient life this is.
Whatever his calculation, preacher man volunteered his presence before the TRRC and in the process confirming and maintaining his maverick and enigmatic status since his new life outside government, Mile 2 Central Prison, and The Gambia.
With the coming of the junta in 1994, a dictatorship was born, nurtured, and matured in our country.
For the better part of a generation, law and process were eviscerated from The Gambia’s public life.
Criminal conduct by the state became a matter of daily life and the nation was schooled in a single classroom about the consequences of defying the great puppeteer.
Constitutional pillars of the state were orphaned and became thoroughly corrupted on seminal issues of public importance.
The fruit of that institutional corruption, the so-called fruit of the poisoned tree, is what Yankuba Touray pleaded in refusing to talk to the TRRC.
It is astounding that except for the selective amendments in relation to judgeships and the presidency, our anti-democratic Constitution survived the change of government unscathed.
Was Yankuba Touray right?
In his shoes I wouldn’t testify before the TRRC but not on the basis of Section 13 of the Transitional and Consequential Provisions of the Constitution.
Yankuba Touray has partial and qualified immunity but on the long view of things and given the adverse mentions he generated with witnesses before the TRRC, he cannot avoid a date with the high court.
But the TRRC cannot compel his attendance or testimony. It erred in inviting him to testify and compounded that error by ordering his arrest. His arrest was wrong in law.
Some analysts went as far as suggesting that he purged his contempt when he agreed to be sworn in and cannot therefore be prosecuted absent a fresh citation for contempt.
“Be that as it may”, we need look no further than the TRRC Act (the Act) and its interface with constitutional text and principle in the context of the criminal process.
Yankuba Touray sinned on multiple fronts and incensed several powerful figures.
He declined Counsel Faal’s overture of a dance and his plea for reconsideration notwithstanding, the invitee persisted and maintained his original answer.
The handsome and much loved counsel who attracted social media enquiries about his marital status was perplexed at this temerity.
The TRRC chair was incensed.
Ditto the Honourable Attorney General and Minister of Justice (the AG) at the affront of a former junta member and a fallen minister.
Even the State House was incensed at the callous withdrawal of its favourite daytime show.
But the law is the law.
Yankuba Touray was right in refusing to testify before the TRRC on considerations more profound and sublime than an immunity clause restricted in time and scope and arguably nullified by an internal condition virtually impossible to satisfy.
Yankuba Touray’s immunity, assuming he has any, was limited to between 22 July 1994 and 31 December 1996 or thereabouts, that is to say, before the commencement of the APRC government.
The scope of any immunity was restricted to “… an act or omission in the performance of his … official duties during the administration of the Armed Forces Provisional Ruling Council”.
A purported amendment of section 13(1) in 2001 removed “during the administration of the Armed Forces Provisional Ruling Council”. This enraged some people in that they consider the section entrenched and not amendable by the National Assembly except in collaboration with the electorate in a referendum.
As there was no referendum, there was no amendment
I contend differently.
The words “during the administration of the Armed Forces Provisional Ruling Council” are surplusage and add nothing to 13(1. As it currently stands, the context of the paragraph is crystal clear and admits of only one meaning.
In any case, 13(1) is not entrenched and was therefore amendable by the National Assembly in its sole capacity.
I accept that 13(1) is couched in the language of entrenchment but is otherwise not entrenched. This is amply demonstrated by section 226 of the Constitution as it embodies all entrenched sections.
Section 13(1) is not one of them!
As to why Yankuba Touray cannot be compelled, let us examine the tapestry of the Act as against the Constitutional text and principles it must comply with.
Pertinently, the Act, at section 14, states the functions of the TRRC as initiating and coordinating investigations into:
(a) violations and abuses of human rights;
(c) the identity of all persons, authorities, institutions and organisations involved in such violations
(e) the gathering of information and the receiving of evidence from any person, which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victim; and
(f) determining what evidence have been destroyed by any person in order to conceal violations and abuses of human rights.
Clearly, Yankuba Touray cannot answer any of the foregoing sections without incriminating himself. He will be answering questions mainly in relation to himself and the Constitution does not permit this. He will be prejudiced in his defence when later charged and tried at the High Court for any number of potential offences.
Similarly, the Act, at section 15 mandates the Commission:
(d) … to compel the attendance of any person who fails to respond to a request of the Commission to appear and to answer questions relevant to the subject matter of the session or hearing;
(e) to require that statements be given under oath or affirmation and to administer such oath or affirmation;
(g) issue summonses and subpoenas as it deems necessary in fulfilment of its objectives;
(h) request and receive police assistance as needed in the enforcement of its powers including assistance with regards to the:-
a.identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses, and
(i) recommend the granting of amnesty to persons in appropriate cases upon application for amnesty.
When compelled to appear and give evidence on oath or affirmation, Yankuba Touray cannot but lie or incriminate himself. He is publicly fingered by the AG for prosecution as “a person who bear the greatest responsibility for human rights violations and abuses”.
How is the above squarable with section 35 (1) of the Act that “a witness shall not be subject to civil or criminal proceedings for disclosing a human rights violation or abuse” or to 35(4) that “a witness before the Commission shall be entitled to the same immunities and privileges as if he or she were a witness in proceedings before a High Court”?
On the question of amnesty, “the Commission may recommend the granting of amnesty under the terms and conditions established by the Commission on the application by a person who makes a full disclosure of his or her involvement in human rights violations or abuses and expresses remorse for their acts or conduct” (section 19(1) of the Act)
At section 19(3) of the Act, it is categorically stated that “Amnesty shall not apply to acts which form part of a crime against humanity”. A crime against humanity is international in nature and I am not aware of it being a part of Gambia’s Criminal Code.
Without digressing much into international criminal justice, under the Rome Statute, ‘crimes against humanity’ is defined as any of “the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”:
murder, torture, rape, sexual slavery, persecution and other inhumane acts, in a certain context: they must be part of a widespread or systematic attack directed against a civilian population. It is the context that elevates crimes that might otherwise fall exclusively under national jurisdiction to crimes of concern to the international community as a whole.
An individual may be liable for crimes against humanity if he or she commits one or more inhumane acts within the broader context.
The two elements common to all acts designable as ‘crimes against humanity’ are that “the conduct was committed as part of a widespread or systematic attack directed against a civilian population”, and that “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population”. In so far as ‘any civilian population’ is concerned, the law makes no distinction as to whether affected civilians are “enemy nationals” or a state’s “own subjects”, and the prohibited conduct must neither be “single” nor “isolated acts against civilians”.
On the requirement of “widespread or systematic attack”, the circumstances appear to be fact-sensitive: The term ‘widespread’ has been defined in various ways, and generally connotes the large-scale nature of the attack and the number of victims …
While ‘widespread’ typically refers to the cumulative effect of numerous inhumane acts, it could also be satisfied by a singular massive act of extraordinary magnitude …
The term ‘systematic’ has also been defined in various ways … Consistent with the ordinary meaning of the term, it may be that the hallmark of ‘systematic’ is the high degree of organization …
Even under the now consolidated system of the ICC, nothing short of major violence is likely to trigger international judicial interest in a country’s internal affairs.
Absent exceptional conditions in the form of massive killings in the context of real conflict, there is no prospect of holding anyone accountable for crimes against humanity in The Gambia.
The inclusion of crimes against humanity in the Act is therefore unfathomable.
By section 19(3) some of the adverse mentions he generated makes Yankuba Touray ineligible for an amnesty. Indeed the AG publicly promised to set an example with him by prosecuting him for his contempt of the TRRC as well as his human rights violations.
Assuming he appeared before the Commission, Yankuba Touray would either perjure or incriminate himself. There are no other possibilities. He cannot escape prosecution.
In an interview, the AG promised to teach Yankuba Touray a lesson by prosecuting him for his contempt as well as the rights violations he was involved in.
This was an extraordinary lapse in judgment.
It is elemental that only the Courts can teach lessons and even where he knows the outcome of a potential case, the AG cannot telegraph that knowledge in advance.
In what capacity was Yankuba Touray invited for at the TRRC?
A witness perhaps!
At section 2, Interpretation, the Act defines a witness as “a person who testifies about a human rights violation or abuse before the Commission”.
In so far as the TRRC requires Yankuba Touray to testify to “human rights violation or abuse”, he is right in his refusal to testify before the commission. He will either perjure or incriminate himself. This outcome is repugnant to the Constitutional right to remain silent, or its prohibition against self-incrimination.
The Constitution, at section 24 (8) states: “no person charged with a criminal offence shall be compelled to give evidence at the trial”. This is an entrenched fundamental freedom. As Yankuba Touray will be charged, the proper venue for his hearing is the High Court not the TRRC.
There are those who argue that the TRRC is not a court. The point is more nuanced and much finer than this truism. With the AG’s announcement he would be prosecuted, the fuller application of the law springs to his defence. He stands between the rock and the hard place, or in the more colourful approximation of the phrase, between the devil and the deep blue sea. Either way he is damned.
In Watkins v. United States, 354 US 178 (1957), Mr Watkins “… was convicted of a violation of 2 U.S.C. § 192, which makes it a misdemeanour for any person summoned as a witness by either House of Congress or any committee thereof to refuse to answer any question “pertinent to the question under inquiry.” Summoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, petitioner testified freely about his own activities and associations, but he refused to answer questions as to whether he had known certain other persons to have been members of the Communist Party. He based his refusal on the ground that those questions were outside of the proper scope of the Committee’s activities, and not relevant to its work …”.
Although the facts are somewhat different, identical legal principles are implicated. In reversing the convictions of Watkins, the US Supreme Court held he “… was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction was invalid under the Due Process Clause of the Fifth Amendment”.
More poignantly for present purposes, the Court also held that “the Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action”. Driving the point home, it stated that “every reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our government, but such deference cannot yield to an unnecessary and unreasonable dissipation of precious constitutional freedoms”.
In Consortium Developments (Clearwater) Ltd. v. Sarnia (City),  3 SCR 3, the Canadian Supreme Court stated:
It must be remembered that the report of the Commissioner to the City Council will represent only his views, and will not determine civil or criminal liability, if any.
As this Court recently emphasised in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System),  3 SCR 440 (the “Blood Inquiry case”), per Cory J. at paragraph 34:
A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages.
Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry.
They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner.
They are not enforceable and do not bind courts considering the same subject matter.
While the public benefits sought to be achieved by the judicial inquiry cannot be purchased at the expense of violating the rights of the appellants and others involved in the land transactions, those rights will be protected in the course of the proceeding by the principles of natural justice and the fairness of the Commissioner, and thereafter by the inadmissibility of compelled testimony in subsequent proceedings federally under Section5(2) of the Canada Evidence Act, RSC, 1985, c. C-5, and Section 13 of the Canadian Charter of Rights and Freedoms (Di Iorio versus Warden of the Montreal Jail,  1 SCR 152; Dubois versus The Queen,  2 SCR 350), and provincially under s. 9(1) of the Ontario Public Inquiries Act, which is incorporated by reference into Section 100(1) of the Municipal Act.
As regards the TRRC, much broader powers are given to the Commission.
In the British Columbia Public Enquiry Act, SBC 2007, Chapter 9 reads:
Rights of participants
13 (1)A participant may
(a) participate on his or her own behalf, or
(b) be represented by counsel or, with the approval of the commission, by an agent.
(a) has the same immunities as a witness who appears before the court, and
(b) is considered to have objected to answering any question that may
(I) incriminate the participant in a criminal proceeding, or
(ii) establish the participant’s liability in a civil proceeding.
(3) Any answer provided by a participant before a commission must not be used or admitted in evidence against the participant in any trial or other proceedings, other than a prosecution for perjury in respect of the answer provided.
A “participant” means a person who is provided with notice or is accepted as a participant under section 11.
The TRRC Act imported aspects of international criminal justice into its text.
At section 15 (1)(h)(I), the Act states that the Commission may request and receive police assistance as needed in the enforcement of its powers including assistance with requests to the “identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses …”
Absent a definition, we are none the wiser what the Act means by “… persons who bear the greatest responsibility for human rights violations and abuses …”.
I am aware this is a jargon of international criminal justice but on our facts it may be nice sounding but meaningless.
Similarly, there is no indication regarding the meaning of a “crime against humanity” at section 19(3) of the Act.
There is a contextual incongruence regarding the meaning of the phrase “contempt of court”.
In a nutshell the Act was not tested for compatibility with a key Constitutional provision. It is therefore not rude to plead a Constitutional defence. Regardless the reason, it is equally not arrogant to say I am not dancing at your venue, no matter how glittering.
However particular individuals may be perceived, legality must remain at the heart of Gambian public interactions. Public office is a borrowed garment and those adorned in it must learn to be measured in their utterances.
The TRRC is touted as an independent process and its location at any point along its journey must not generate any comments from the Executive at both ends of Marina Parade.
Lamin J Darbo is a private legal practitioner and former member of The Gambia Bench.