West Africa: Banjul Working Towards a Hybrid Gambia-Ecowas Court

In an interview with Justice Info Gambia’s Justice minister Dawda Jallow said his government has the political will to deliver justice for past crimes. No clear strategy has been explained yet and some victims doubt the government’s will to implement the Truth Commission’s recommendations. But it will “likely be a hybrid court”, the Minister says.

In the leadup to Gambia’s presidential elections last year, sitting president Adama Barrow chose to build a political alliance with the party of former authoritarian leader Yahya Jammeh. He got the support of part of Jammeh’s APRC party though he lost Jammeh’s blessings who continued to campaign against him from his exile in Equatorial Guinea. But people who have been staunch supporters of Jammeh now hold top positions in Barrow’s National People’s Party and government structures.

This caused strains in his government’s relations with the victims of Jammeh’s rule (1994-2017), when grave violations of human rights, including murders, extrajudicial executions, torture and rape occurred, according to the final report of the Truth, Reconciliation and Reparations Commission (TRRC) which was released in December 2021. “The person they set up an alliance with, Fabakary Tombong Jatta [the APRC leader who is now president of the National Assembly], came out to protest against the TRRC,” warned Fatoumatta Sandeng, the daughter of Ebrima Solo Sandeng – a political activist who was tortured to death in the custody of the National Intelligence Agency in April 2016. “There is a lot of inconsistency there. At that point, we thought the TRRC was just set up to tick the boxes.”

Last month, the government released its White paper on its implementation plan of the TRRC recommendations. It assured it was committed to bring to book Jammeh and a few dozens members of the former regime. This allows victims to “hold the government to its words”, said Sandeng. But even then, some of them still seem to have their doubts about Barrow’s commitment.

No visible plan or timeline yet

“We expected a White paper that will give us timelines, implementation plans, and what is going to be done,” said Sandeng, worried about the lack of apparent prosecution strategy.

“If the government had the political will, after the publication of the White paper they would have started conversations with Senegal, Ghana, and Nigeria,” said Isatou Jammeh, daughter of Haruna Jammeh, a cousin of Jammeh who was killed by the former dictator’s hit-squad, the Junglers. “All these countries coming together would be much more powerful. Extraditing Jammeh would be much more attainable,” she said.

But recently the government did issue a letter to various ministries and agencies to dismiss at least 9 officials recommended for prosecution by the Truth Commission. The letter stated they should be sacked or banned from holding public offices. The list includes a former police inspector general under Jammeh who is now a police commissioner in Upper River Region, Ensa Badgie. Also included is Ebrima Jim Drammeh, the director of operations of the country’s anti-narcotic agency.

And in an interview with Justice Info Justice, Minister Dauda Jallow assured the government remains committed to serving justice for past crimes. “I report to the President, and [regarding] the political will, I have no indication of questioning it,” he said.

“I want to partner with ECOWAS”

Since the release of the White paper, there have been two predominant views in the Gambia on how to proceed with post-TRRC prosecutions. One proposal is to establish a local court that has jurisdiction to try international crimes, with bilateral agreements that could allow it to sit outside the country. Initially the Ministry of Justice seemed to be pushing for a this option. The other proposal is to create a “hybrid” court with some level of international participation.

The Ministry of Justice has hired two consultants who are said to be working on a prosecution strategy that would provide a path to what best fits the Gambia. “It will be a court that will be domiciled in the Gambia. It will be a Gambian-led process”, Jallow said. “It will likely be a hybrid court,” he added. “I want to partner with ECOWAS”, the Economic Community of West African States, the Minister said. “They are closer to us. They supported transitional justice. ECOWAS forces are in the country. ECOWAS citizens were killed by Jammeh. So, ECOWAS has a natural stake in the process.”

“Creating a hybrid court between The Gambia and ECOWAS could solve a lot of problems,” argued American lawyer Reed Brody who has been advocating for Jammeh’s extradition since the fall of the regime. “It would allow torture and crimes against humanity – written into the court’s statute – to be prosecuted without facing the bar of retroactivity,” he said. “The court could be empowered to hold detainees and conduct trials outside of The Gambia, which everyone thinks is best in the case of Jammeh,” he added.

“And it could give victims, who have been at the forefront of the justice struggle, a greater role in trials than they have in Gambia’s system. Perhaps most important of all, it would bring in ECOWAS itself, including countries like Ghana, Nigeria, and Senegal whose citizens were killed in the Gambia. It would be difficult for Equatorial Guinea to refuse an extradition request coming from the entire region”, said Brody.

Capacity gaps

There is no timeline yet on when such court could be set up or when an act establishing it could be passed. However, the Justice Minister expects concrete steps soon. “We will set up the special prosecution divisions within six weeks. They will do the preliminary works and look at the evidence. They will also investigate where necessary,” he said.

The capacity at the Ministry of Justice is another issue they are grappling with. Significant works at the heart of post-TRRC prosecutions or justice processes are being outsourced. The Ministry, for example, had to contract private lawyers to prosecute 7 officials charged with the murder of Ebrima Solo Sandeng. The charged NIA officials are their former director Yankuba Badjie, Sheikh Omar Jeng, Baboucar Sallah, Tamba Masireh, Haruna Suso, Lamin Darboe and Lamin Lang Sanyang. Louis Gomez, former deputy director-general of the spy agency, died in prison during the course of the trial while Yusupha Jammeh was discharged by the Court.

In the area of forensics only one person is qualified within the Gambian Police Force. And they do not have the equipment to exhume if several victims who have disappeared were to be found. In April 2019, the TRRC exhumed 7 bodies presumed to be soldiers executed by the young military junta on November 11, 1994. The remains are still not identified.

Mobilising resources is one more challenge as the government is also finalizing its Victims’ Bill which seeks to establish an institution that would continue reparation payments to over half of the TRRC-registered victims who haven’t received their full payment.

“We are alive to our capacity challenges. We have institutions that are ready to work with us, especially in the area of forensic capacity,” assured Jallow.

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