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Trial of Yahya Jammeh, a turning point for justice in The Gambia

By Femi Falana SAN

The recommendation by The Gambia’s Truth Reconciliation and Reparations Commission for the prosecution of former Gambian dictator Yahya Jammeh and  and co-perpetrators for 44 cases of murder, torture, and rape is a turning point for justice in the country. Mr Jammeh and others are said to be “most responsible” for the human rights crimes committed in the Gambia when he was president.

Jammeh ruled The Gambia between 1994 and 2017. He currently lives in exile in Equatorial Guinea, following his departure from the country in January 2017 after he lost to Mr Adama Barrow in presidential elections. The President of Equatorial Guinea, Teodoro Obiang should not be allowed to continue to “protect” Jammeh and shield him from prosecution.

If and when extradited, Mr Jammeh will be the second African dictator to face trial before the Chambers, following the trial of former Chadian dictator Hissène Habré on charges of crimes against humanity, war crimes and torture before the Chambers.

In view of the fact that the victims were not only Gambian nationals, the Commission recommends that a special international court be set up to try Jammeh and others in West Africa, but outside of Gambia. I call on the leadership of the African Union (AU) and the United Nations to take immediate and effective measures to ensure that Mr Jammeh and senior members of his government are extradited to Senegal to face trial before the Extraordinary African Chambers in the Senegalese courts, for the sake of Jammeh’s victims.

I believe that the recommended trial will not require separate structures and institutions. With the existence of the Extraordinary African Chambers, the AU leaders do not have to reinvent the wheel. Immediately extraditing Mr Jammeh and others to face trial before the Chambers would save time and resources. The Chambers’ statute gives it competence over crimes against humanity and torture as defined in the statute. The definitions of these crimes generally mirror those used in the Rome Stature of the International Criminal Court and other international tribunals.

Mr Jammeh will be entitled to his fair trial rights before the Extraordinary Chambers, including those guaranteed by the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights both of which Senegal has ratified. These human rights treaties outline the minimum guarantees that must be afforded to defendants in criminal proceedings.

The Chambers must receive adequate funding from the members of the international community, including European Union and its members; the AU and its members and others who are committed to the cause of justice and accountability for international crimes in Africa.

The Extraordinary African Chambers have four levels: an Investigative Chamber with four investigative judges, an Indicting Chamber of three  judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese Judges and a President from another African Union member state. The chambers also have an administrator to ensure the smooth functioning of their activities and to handle all non-judicial aspects of the work.

Those recommended for trial by the Truth Reconciliation and Reparations Commission are members of the brutal regime  including Lt. Yahya AJJ Jammeh; Lt. Sana B. Sabally; Lt. Edward Singhatey; Lt. Sadibou Hydara; Lt. Yankuba Touray; and Lt. Peter Singhatey. Others are Private Baboucarr Njie aka Njie Ponkal; JCB Mendy; Mustapha Touray (Churro); Lamin Marong; Lamin Senghore (Pa Senghore/Assassin); Private Zackaria Darboe; Ensa Mendy; and Jali Madi Suso who are said to be responsible for the torture and inhumane treatment of Capt. Momat Cham, AIG Ebrima Chongan and RSM Baboucarr Jeng at Mile II Central Prison on September 6, 1994.

Sanna Sabally and JCB Mendy found to be responsible for the torture of Political prisoners after 1994 coup particularly O.J Jallow. According to the Truth Reconciliation and Reparations Commission, Yahya Jammeh also bears criminal responsibility for these crimes due to his failure as Commander in Chief to investigate and punish the perpetrators.

These human rights violations and abuses against those indicted include: unlawful killings; torture and inhumane treatment; unlawful arrests, unlawful detention/imprisonment; sexual violence; persecution; illegal deportation and forcing opponents into exile; and enforced disappearance, persecutions including through arbitrary arrests and unlawful detentions.

Jammeh’s victims must be afforded the opportunity to participate in proceedings as civil parties. Should he be convicted of the charges against him, the victims of his crimes must receive adequate compensation, and reparations, including guarantee of non-repetition.

The victims cannot continue to wait for justice, as justice delayed is justice denied. Prosecuting Jammeh before the Extraordinary Chambers will send a powerful message to other African dictators that there will be no impunity for human rights crimes that they commit while in power.

Although the White Paper on the Report will be published within six months the Attorney-General and Minister of Justice of The Gambia, Mr. Dawda A. Jallow has reiterated the commitment of the Adama Barrow administration to implementation of the recommendations of the Commission.

Femi Falana, SAN

Falana and Falana Chambers

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