By Pa Louis Sambou
Commissioned to “create an impartial historical record of violations and abuses of human rights from July 1994 to January 2017…, establish and make known the fate or whereabouts of disappeared victims, provide victims an opportunity to relate their own accounts of the violations and abuses suffered and, grant reparations to victims…”, the Truth Reconciliation and Reparations Commission (TRRC) carries an enormously heavy burden on its shoulders. With a duty so fundamentally salient, it isn’t controversial at all to say that it is one which must be discharged with due care and skill and with a degree of moderation which doesn’t give the impression of a deviation from the TRRC’s raison d’être — whether perceived or real. It’ll be hard to disagree that the TRRC’s reaffirmation of the orthodox briefed wisdom in relation to coup d’tats is in harmonious sync with this statutory duty and expectation. However, this isn’t to say that such orthodoxy isn’t due a rethink or a careful re-examination for a more fitting term.
The orthodox pushback, specifically with respect to the failed coup in 2006 against former president Yahya Jammeh must be music to Jammeh’s ears particularly the respective counsels’ lines of questioning solemnly emphasising and hitting home the orthodoxy to the effect that ‘assisting, engaging in or planning a coup is against the laws of this country’ and to the capitulation of the witnesses who one after the other concede in agreement. Whether this affirmation by the witnesses reflects their genuine views or not, what’s clear is that the TRRC, on this particular subject won unlikely allies in their arch-detractors, Jammeh’s allies and defenders. His (Jammeh’s) online ‘army’, judging by their commentary on the very subject appear to for once find themselves being in agreement with the TRRC albeit for reasons of convenience rather than principle — besides their very existence emerged out of a coup by Jammeh in July 1994 whose unlawfulness they wouldn’t likely acknowledge.
Ironically but, for completely understandable reasons, traditional allies of the TRRC are for the most part opposed to the above orthodoxy. Well, in the case of Jammeh at least. To them, the idea that any plot to overthrow Jammeh could be characterised as unlawful seems a repulsive suggestion. This is the impression one gets anyway. As one traditional ally of Jammeh’s victims UK based Sulayman Ben Suwareh puts it during his latest talk show on the issue, not everything “morally right is lawful” arguing that “in South Africa apartheid was the law” and further buttressing the point, he referenced the title of a book written by Prince Yeduo Johnson (a former Liberia warlord): “The gun that liberates should not rule”. This phrase could not be more relevant to the subject.
Whilst not expressly a substantive subject matter, they’re tasked to look into, given how coups starred in the pathogenic characteristics which contributed to and led to our current predicament, there is good reason for an objective reconsideration of the orthodox position in relation to this third world menace: Coup d’tats. The model and craft of the TRRC is hardly a creative product sourced from Gambian intellect or innovation but, perhaps that’s for another conversation altogether. Without being unnecessarily cynical, for reasons I cannot comprehend, we’re much less eager to be creative than we are to imitate and, judging by this very tragic Gambian trait as well as previous endeavours of similar nature and their complete lack of originality, maybe one shouldn’t expect any different or set too high a bar on this occasion. For clarity, this isn’t a criticism of the TRRC at all but rather one for their political masters and other Commissions which precede it. This is however not to say that the TRRC doesn’t have the opportunity, the means and the capability to set itself apart from the aforementioned in terms of boldness, creativity and originality in respect of the substance of its much-anticipated recommendations.
It’ll be daft to indulge the idea of decriminalising coups, of-course that’s an extreme position which I hasten to add that I do not hold but, so is the current orthodox position which evidently is barely helpful — it doesn’t stop coups and when they do happen, the high cost and price to pay for failure disincentivizes any restraint or rational conduct on the part of respective coup participants, something which it could be argued often drives the brutality usually exhibited in the process and so forth as well as the reluctance to relinquish power when successful. Additionally, such an orthodox totality, whilst designed to safeguard meaningful multiparty democratic systems of government, it has the unintended consequence of creating and entrenching the complete opposite like was the case in The Gambia both under the PPP as well as the APRC. U.S Justice Robert H. Jackson, in dissenting that a right to free speech transcends a competing general public interest to keep the peace stated that “the Constitution is not a suicide pact”. I couldn’t agree more; the law must certainly not be allowed to prejudice the interest of those in whose interest it exists. Laws exist to benefit the welfare of society rather than society existing to benefit the welfare of the law. As far as the current state of the law(s) against treason in our case goes, it could be argued that the latter is the case and for which we paid a high price over a 52 years period being governed by regimes whose tenure would perhaps not have lasted as long as they did and whose damage may perhaps not have run so deep but for the obsolete construct of the law(s) against treason which it could be argued completely disregards the treason against citizens by the State and demands of serving men and women ‘loyalty’ to such a rogue (or complicity for a more fitting term), a ‘loyalty’ which is subsequently tested to different standards and criticised once such a rogue system is no more.
Challenge the rogue system and you’re criminalised if not worse, stay loyal as the intransigent orthodox wisdom dictates, and you’re ‘complicit’, an ‘enabler’ and equally criminally or morally culpable anyway. This is surely an absurdity, isn’t it?
The current state of the law presupposes and implies that a sitting head of State could not be culpable of treason and wherein lies the mother of all absurdities. Treason is effectively a ‘treachery against an entity to whom one owes a duty of allegiance’ and, a sitting head of State unless they are a Monarch, they also owe an allegiance to the State, an allegiance which they would be in breach of in circumstances whereby they commit or are complicit to crimes against that very State e.g. murder etc. The power to impeach exists for instances like these, I completely get it but, on a Continent with such colourful history of murderous autocrats and pseudo democratic leaders, as of December 2016 not even one was ever impeached and this is the case to date. Unless we wish to continue to bury our heads in the sand, it is obviously evident that such a political mechanism whilst useful, it is by itself inadequate.
In light of the above therefore, the justification for maintaining the status quo has not, by standards of any reasonable objective view been made out, its cost too high, and the associated risks wholly unmitigated.
About time this ‘suicide pact’ of a treason law is carefully revisited. The TRRC in my view, finds itself in a very unique position and with a very novel opportunity to carefully study the subject matter with a view to offering a credible and fit-for-purpose alternative which may after-all serve as a template for others especially within the African continent to follow. What an awesome opportunity to be innovative, original and offer others the opportunity to imitate us for a change.
On such a tricky issue, one cannot pretend to have just about the perfect solution. I am no exception. However, in my view, just like an impeachment as a political option is constitutionally made available to lawmakers, serious consideration must be given to a change in the law so that the top brass of the security edifice could lawfully but in limited circumstances, use reasonable powers of robust persuasion to encourage or, if necessary, tactically manage or assist a sitting president out of power (e.g when a president goes rogue like Jammeh was). In such circumstances, the constitutional successor would be inaugurated to takeover to serve the residue of the term once the rogue president is removed and, the business of government carries on uninterrupted and with the constitutional order remaining in tact.
Given the weak state of our democratic institutions, we would be naïve to assume that another rogue, perhaps even more slick and determined than Jammeh won’t emerge at some time in the future either through the ballot box or otherwise. Equally problematic would be the replacement of such a rogue by another wolf-in-sheep’s-clothing of a military dictator who may be unwilling to relinquish power like is currently the case in Mali. There’s substantial body of evidence to suggest that the current position is inadequate and deserving of an absolute rethink which we neglect at our peril. Times have changed and so should the law.