Could information on the application of habeas corpus law be provided? Could the State provide examples of the implementation of the law on access to information? What was the status of the creation of the Independent Commission on Access to Information? Could examples of cases be provided where information had been refused? Had any provisions been implemented to ensure that information was provided in a speedy manner? Were there sanctions for those who hindered the provision of information? What was the content of the modules in the joint training with the Committee of the Red Cross? What specific modules were used to train on the Convention?
Milica Kolakovic-Bojovic, Committee Expert and Country Rapporteur, said the Committee was pleased to receive information that the Gambia had passed the reparations act 2024, which established the Reparations Commission and the Victims Fund, and also to hear that the Truth Commission had already provided some victims with reparation. Did the reparation act address just victims from the past, or could it be applied to future cases? What definition of “enforced disappearances” and “victims” had been used by the act? This would determine the scope of reparation measures provided to the victims. How many victims had been provided with reparations by the Truth Commission? What kind of reparations had they received? What was the current state of play in regard to the institutionalisation of the Truth, Reconciliation and Reparations Commission? Had Commissioners been appointed? Could the composition of the Commission be described? What resources were allocated to the Commission for its work? It would be useful to know the division of competencies between the Reconciliation Commission and the Reparation Commission.
Family members had a right to know the truth. What were the existing procedures to search for, locate and release disappeared persons, as well as to identify and return their remains in the case of death? What were the protocols to be applied for such procedures and by whom? The Gambia was working on a Special Tribunal which would enhance efforts to achieving accountability. It was important to involve family members in this process.
The evidence Act 1994 presumed a person was dead if they had not been seen for seven years. Was a death certificate required under the provisions of legislation dealing with economic and social rights to access those rights? Was there a possibility for the relatives to request issuing a declaration of absence and to access the rights without being forced to declare their disappeared relatives dead? This was an important mechanism to ensure fulfilment of the State party’s obligation to continue the investigation into an enforced disappearance until the fate of the disappeared person had been clarified.
What procedures were in place to ensure the specific needs of women and children who were relatives of the disappeared were adequately addressed? Would the wrongful removal of children be incorporated as a separate crime within the new law on enforced disappearances, or through the criminal offences act? Could information on the system of adoption or other forms of placements of children be provided? Did domestic legislation establish any legal procedures to review adoption or annul any adoption, placement or guardianship which had originated through an enforced disappearance? Could information be provided about the procedure of the identification of newborn babies at the time of birth? Could the State elaborate on the practice of informal adoptions?
A Committee Expert said real cases of enforced disappearances had taken place in the country, involving the Junglers from the former regime, and it was likely they would be prosecuted. The victims were known and were still dealing with their suffering. Would those victims have to wait until the cases were prosecuted and the perpetrators convicted? It was likely the reparations would not be paid by the Junglers but rather the State. Should victims have to wait until the completion of the trials for compensation or reparations? There had been serious cases of prolonged pretrial detention; was there a legal provision determining the maximum duration of pretrial detention in police custody which would trigger the habeas corpus procedure? Did Gambia have any kind of extradition treaty with Guinea regarding the President?
Responses by the delegation
The delegation said that non-Gambians who were convicted of criminal activity could be deported as part of their sentencing. Any non-criminals and non-nationals who faced deportation were entitled to lawyers and appeals, the same as any other citizen. Secret detention did not operate any more in the Gambia, and detailed provisions in the Constitution guaranteed people’s right to personal liberty. Anyone who was required to be detained beyond 72 hours needed to have the order approved by a court of law. The new law on enforced disappearances sought to expressly prohibit secret detention.
Complaints were registered in prisons in the Gambia and were sent to police officers every three months. If a person was arrested, their information was noted immediately, and police were informed. In the Gambia, there were only three official prisons, which had a centralised online registry. Police stations were slightly more manual, with arrests recorded in diaries and fed into a database. There was no centralised online registry in police stations, but the State was working towards this.
Once someone was detained in the Gambia, they were entitled to access lawyers, or to consular visits if they were non-Gambians. The State was working diligently on the matter of the Optional Protocol and hoped to ratify it soon. The enforced disappearance bill would elaborate on the issue further, but it was currently an offence to falsify public records.
The national security advisor had developed training models for all security services, which included the human rights model. It was a mandatory module within trainings for law enforcement officers. Many officers had been trained and were now familiar with human rights issues. The Gambia would reach out to the Committee for assistance in extending these trainings to security services.
The reparations act and the Commission established under it had a five-year mandate. If they were not able to complete the assignment, there was a possibility to extend their mandate. The act was only meant to look at past enforced disappearances. Victims were defined as those who suffered, or their relatives. Out of around 1,009 victims, 108 received partial financial reparations of around 1,000 dollars. There were more than 700 payments of over 50,000 dollars. The Reparations Commission would take over this process and develop a best practice standard for a compensation and reparations procedure. They would create a new victims database and allow victims who are yet to receive compensation to register and appear before the Commission. There were seven members of the Commission, two of which were from the victim community and the rest from civil society.
Once the specialised legislation on enforced disappearances was developed, this would deal with accountability for the family. Currently, victims and their right to participate were guaranteed under the State legislation. A death certificate was required for families to access economic and social rights. Wrongful removal of children was not adequately covered in the current Criminal Code, but would be covered extensively under the enforced disappearance legislation. There was a children’s act in the Gambia which was compliant with the Convention on the Rights of the Child. Informal adoption was part of the tradition and culture in the Gambia and there was no legislation regulating this. This informal adoption was mainly limited to families and was not extended to strangers; for example, if someone’s relative passed away, they would take care of their relative’s children and assume the role of the parent.
Victims did not have to wait for perpetrators to be prosecuted to receive reparations. As they were known. There was nothing they needed to prove. The State understood the process of justice was a different ballgame from recognising someone’s victimhood. There was a set of criteria to determine who was a victim, and those who fit this criterion were entitled to everything a victim was entitled to.
Any detention beyond 72 hours without bail was illegal, and the State could be taken to court if this occurred. Civil society visited and talked to prisoners and wrote to the judiciary in regard to those whose trials were taking too long. There was also a prison visiting committee within the Parliament which dealt with long remand prisoners.
Questions by Committee Experts
Olivier De Frouville, Committee Chairperson and Country Rapporteur, said the centralised database was interesting and might be able to draw lessons learned from other countries. If someone was detained for too long, by whom could an appeal to the High Court be triggered; was it only a detainee themselves or by a family member? The Gambia had been struck off the list for international adoptions by the Belgian authorities; how did the State interpret this decision?
Milica Kolakovic-Bojovic, Committee Expert and Country Rapporteur, said there seemed to be a gap between the legal regime applicable to the past and the future regime. Could more details on the general legal regime applicable to crime victims to receive compensation be provided? Would other forms of reparation, such as support, also be provided? It was nice to hear that family members took care of children; were there any kinds of initiatives to govern the rights of guardians in national legislation?
An Expert said the timeframe of pretrial detention could be quite lengthy; what was a reasonable timeframe? Was this established in the Criminal Procedure Code? How long could a person languish in detention without a trial? How had human rights and international humanitarian law been incorporated into the State’s operations? How was a gender perspective being incorporated when reparations were being determined? Was the fate of women victims taken into account? Had the State disseminated the guidelines for searching for disappeared persons which were adopted by the Committee in 2019? Were they taken into account and used when designing search strategies?
A Committee Expert said the former regime still had followers in the country and their voices were heard. In anticipation to the legal proceedings regarding enforced disappearance, was there a witness or victim protection programme put in place? Was there a judicial precedent prescribing a reasonable time frame of pretrial detention? The findings of the Truth Commission had established that people were victims; was it anticipated that these findings would be used within the judicial process? There were concerns that the proceedings would take too long. Would the Gambia use a hybrid process where the case was ready before trial?
Another Expert asked if more information could be provided on the content of the human rights training provided to security agencies? What were the limitations that security agencies had when it came to investigating human rights cases?
Responses by the delegation
The delegation said that data on appeals was not readily available. The State would be interested in developing a DNA database and was working closely with the International Committee of the Red Cross and other partners. Belgium’s sovereign decisions in regard to adoption needed to be respected. There were many documents which needed to be shown to the court to adopt a child in the Gambia, including a clean criminal record and economic means. The current Criminal Code was very old and did not adequately cover compensation for victims of crime. It was hoped the revised Criminal and Procedural Codes would be passed next week, to allow the courts to compensate victims of crime.
Reparation was defined under the act to include restitution, satisfaction, compensation, guarantees of nonrecurrence, and rehabilitation. They would all be utilised by the Commission as and when appropriate.
Criminal cases could not be adjourned beyond two weeks. An agency had been established to provide legal aid for those charged with capital offences who could not provide their own lawyer. If long detention was due to the prosecution not taking their work seriously, the court had the discretion to strike out the matter at any time they considered unreasonable, and judge the accused person. This had been happening.
The National Human Rights Commission had recently concluded developing a syllabus for training security services, which included victim and gender sensitive criteria.
The former regime was in the country. Adequate victim and protection support units were established under the State’s legislation. What was obtained in court with respect to perpetrators would have no bearing on victim status. The State would ensure cases before the trial to expedite the proceedings as much as possible.
Concluding remarks
Dawda Jallow, Attorney General and Minister of Justice of the Republic of the Gambia and head of the delegation, thanked the Committee for the dialogue which had provided a valuable platform to reflect on progress made under the Convention. The Gambia was committed to strengthening legislation for enforced disappearances, protecting victims and their families, bringing perpetrators of these violations to justice, and ensuring justice and redress for all effected individuals. The Gambia would carefully consider the Committee’s observations and recommendations and remained open to further dialogue, technical assistance and cooperation. Mr. Jallow extended thanks to all those involved in the dialogue.
Horacio Ravenna, Committee Vice Chair, thanked all those who were involved in the dialogue. The Gambia had 48 hours to send any additional useful information to the Committee. Later in the session, the Committee would adopt concluding observations on the Gambia. The Committee looked forward to the Gambia’s goodwill, and the State could count on support from the Committee.
