It comes as no secret that the pursuit of justice in normal times in itself is a challenge let alone doing so in circumstances as unique and extraordinary as that in post Yaya Jammeh Gambia. The latter requires an innovative approach modelled and designed to suit the needs of the victims rather than a copy and paste transitional justice model from elsewhere.
The copy and paste (from Rwanda) transitional justice model is not going to be a success in The Gambia; the rancorous aggro which ensued yesterday between former Junta (5th in Command) and the Truth and Reconciliation Commission (TRRC) lays bare this fact. The TRRC Act just like the CRC Act was ill-thought through and is the result of gross negligent governance: an inept demagogue Executive powered by a sycophant legislature which is quite reluctant to conduct any legislative scrutiny whatsoever.
The pursuit of transitional justice is unfortunately not going to be an open and close matter which most of us would like it to be – the State has failed to put in place a fit-for-purpose authoritative vehicle to guarantee such and do so beyond reproach.
Is Yankuba Touray’s Claim of Immunity valid?In answering this fundamental but loaded question, it is essential that we forgo emotion, subjective opinion and ones personal view of what the subject matter rightfully deserve. After - all, it is the law which matters, nothing else matters but the law.
The 1997 Constitution which is the Supreme legal authority at section 232, Schedule 2, Paragraph 13(1) states:
“No member of the Armed Forces Provisional Ruling Council, any person appointed minister by the Armed Forces Provisional Ruling council or other appointees of the Armed Forces Provisional Ruling Council shall be held liable or answerable before a Court or authority or under this Constitution or any other law, either jointly or severally, for an act or omission in the performance of his or her official duties.”
The effect of the above provision is that no “appointee” of the AFPRC could be investigated, questioned, summoned, subpoenaed, put on trial etc. by any “Court or authority” under the purview of the 1997 Constitution.
It is factual that: 1) Yankuba Touray was an “appointee” of the AFPRC and, 2) the TRRC is an “authority” under the purview of the 1997 Constitution. Therefore, never-mind what the TRRC Act says but on the basis of the aforesaid which is the existing law, the TRRC has no jurisdiction or legal authority whatsoever over Yankuba Touray likewise all other “appointees” of the AFPRC.
It is a scandal that the Justice Minister and the legal fraternity in the Gambia (an intellectual base which is supinely inward – looking and always ‘AWOL’ on the big issues) did not see this coming. I must state that I say this with grave reluctance and a very heavy, painful heart: Yankuba Touray is unfortunately right, the immunity he claims is one which he rock solidly enjoys in law (albeit undeserved and a very grotesque state of affairs).
The Public Statement released yesterday by the TRRC on the subject is sadly erroneous. The proposition that Yankuba Touray does not enjoy the Constitutional immunity he claims is simply too weak an argument to sustain the weight placed on it by the Statement. The TRRC ought to have sought appropriate legal advice on this before hastily rushing to conclusion – it is unedifying to conduct any publicly charged affair as if it were a ‘competition of machismo’. Yesterday was certainly not the TRRC’s best moment and, to call it a car crash will be an understatement, it was a black iced motorway pile –up.
The TRRC has unfortunately been given a ‘hospital pass’ by a government which woefully failed and continues to fail to grasp the detail and, a Justice Minister who refuses to listen to noble and good faith ‘counsel’ by the citizenry and civil society and whose actions are increasingly running the risk of denying victims justice and restoration albeit enriching chums in the legal fraternity at the expense of the State. With the exception of a few, the legal fraternity (Lawyers) in The Gambia, just like the legislature et al are spineless, gutless and complicit in this almighty scandalous travesty.
What Ought To Have Been The Right Approach?The issue of transitional justice in the immediate aftermath of a dictatorship is always a very big challenge, something which the current administration foolishly underestimated. Ghana had similar challenges and ones which were never overcome hence why transitional justice in Ghana after dictator John Jerry Rawlings was a mess which must not be repeated in our back yard – we must carve out an innovative (not copy and paste) strategy which strikes the right balance between the public interest, victim restoration and the rule of law.
With the right strategy: 1) the victims will be fairly and equitably restored; 2) the villains and culprits will get jail terms which fit their crimes and be stripped of all ill-gotten proceeds; 3) public confidence in public justice and the rule of law will be restored and the need for retribution dissipated; and 4) a recurrence of AFPRC / APRC brutality will be deterred by such ‘no amnesty’ approach and precedence. An amnesty to any single one of the culprits will be a grave injustice and will set a wrong and dangerous precedence. Cooperating culprits should get discounted jail terms after sentencing but no one, literally no one should be granted an amnesty at all.
For a start, the government rather than vest the responsibility of transitional justice in the hands of the Justice Minister should have commissioned a competent taskforce with the requisite knowledge, experience and determination to device a fit-for-purpose transitional justice pursuit strategy. Had this been done, I have no doubt in my mind that such a task force would as a first measure seek to tackle the obstacles to transitional justice e.g. seeking to repeal from the Constitution the undeserved immunities enjoyed by Yaya Jammeh and his accomplices (most of whom ironically hold key positions in the current administration) which are obvious and overt legal impediments to any transitional justice pursuit. This ought to have been the first hurdle to conquer before passing any Acts of Parliament such as the TRRC Act which is obviously futile by virtue of the aforesaid.
Had such a taskforce been commissioned for the purposes of transitional justice, it is highly likely that they would have formed the view that the wishes of the victims rather than the views of the TRRC staff would be front and centre. The TRRC model and design is an unforgivable travesty to the victims in that millions if not more is being spent to excessively remunerate the TRRC staff, most of whom are very crass and insensitive in the manner in which they conduct themselves and display their flashy lifestyle choices (in the presence of the victims) whilst the destitute victims watch on and continue to wallow in pain, anguish, suffering and poverty with no guarantee of a just restoration by the State, something which was unhelpfully and admittedly stated by the Lead Counsel (“…the government cannot restore all victims…” or words to that effect).
It is my view that the whole TRRC edifice needs tweaking and fine tuning. The process needs to temporarily halt whilst the Minister of Justice and government revisit the undeserved Constitutional immunities with a view to having them lawfully repealed. However, in the meantime the victims should be granted publicly funded legal representation who would advocate for and represent their wishes, feelings and interests part of which must include an interim generous payment of compensation by the State to every single victim (through an intelligently designed compensation formula) and a rigid cast iron guarantee in law of a just and equitable restoration and financial settlement for each and every victim at the end of the TRRC process. This is the right approach and it is not too late for the government to rescue itself from the scandal it has created for itself.
