Gambia: the end of the wait-and-see strategy?

On April 22, two bills expected to kickstart the prosecution process for crimes committed under the 22-year rule of former President Yahya Jammeh were passed at the Gambian Parliament. They should make it possible to establish a hybrid court, two and a half years after the closure of the Truth Commission, whose recommendations have still not been implemented by the government. Can this mark the end of the wait and see strategy?

Will there soon be trials for Yahya Jammeh's crimes in Gambia? - Photo: Gambian President Adama Barrow adopts a wait-and-see stance at a meeting of African countries belonging to the Economic Community of West African States (ECOWAS).
Since the publication of the Gambian Truth Commission's report at the end of 2021, President Adama Barrow has remained passive about implementing its recommendations, including the organization of trials for crimes committed under Yahya Jammeh's regime. Photo: © Kola Sulaimon / AFP
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The two bills passed in The Gambia on April 22 are meant to be complementary. “The Special Accountability Mechanism (SAM) bill is a set of principles that will guide the entire post-TRRC implementation process. The three SAM institutions are the Special Prosecutor’s Office (in charge of investigations and building cases - which we will start setting up now), the Special Criminal Division of the High Court (already established for the purposes of trying domestic crimes), and the Special Tribunal (a court which the government has partnered with ECOWAS Commission to try international crimes),” said Ida Persson, special adviser on transitional justice at the Ministry of Justice. On the same day, a second bill was adopted to set up the Special Prosecutor Office (SPO).

Yahya Jammeh, who ruled The Gambia from July 1994 to January 2017, has been in exile in Equatorial Guinea since he left power after losing the presidential elections. His reign was marked by widespread human rights violations and abuses, including disappearances and murders. The hybrid court is expected to try persons recommended for prosecution by the Truth, Reconciliation and Reparations Commission (TRRC), which issued a final report in November 2021 after a 3-year process.

No timeline, no budget

“This will make a big difference,” Abdoulie Fatty, secretary general of the Gambia Bar Association, told Justice Info. “These legislations mean we can now formally begin the process of recruiting and appointing a Special Prosecutor and the required staff. The TRRC uncovered a lot of abuses and violations but there is still a lot of missing evidence and links that the SPO should investigate. The SAM will also allow The Gambia and ECOWAS to enter into a treaty to set up the hybrid court. Once the hybrid court is established it will be in a position to issue arrest warrants, for example in relation to some of the ‘Junglers’ [a group of hitmen under Jammeh’s rule] who are on the run and are believed to be in Guinea Bissau. So, these two laws should give practical effect and benefits and hopefully achieve positive results, even before the hybrid court starts.”

But as of now, there is no set timeline, nor a budget determined, and the strategy for trials remains unknown. According to Persson, the Ministry of Justice is working on constituting a selection panel which has the mandate “to draw up the methodology” for selecting the Special Prosecutor, Deputy Special Prosecutor and division heads. In February the government and ECOWAS constituted “a joint technical committee to develop the legal framework necessary to establish a Special Tribunal for The Gambia,” she said. “The joint technical committee is being advised by people with expertise in cost implications of policy decisions. Best practices from other internationalised tribunals are being studied and applied. The government should be advised on the range of potential costs in a few months,” she added.

Holding Jammeh’s trial in a third country?

Whilst Jammeh is in a self-imposed exile and a number of ‘Junglers’ are at large, trials could also take place outside The Gambia. “As it has been considered, the new hybrid court would have its seat in Banjul [the capital of Gambia] but would have the possibility of detaining suspects and holding trials in third countries. It would be up to the prosecutor and the court to decide where to hold Jammeh’s trial, and where to hold him pending trial, as for security reasons, most people think that his detention and trial would best be held outside of The Gambia,” said Reed Brody, an American human rights lawyer and one of the leading promoters of the “Jammeh 2 Justice Campaign”, aimed at bringing Jammeh to justice.

“Given that the court will carry the political and diplomatic weight of the entire ECOWAS region, including countries like Ghana, which lost 44 citizens in a migrant massacre; Nigeria, which lost an unknown number of migrants; and Senegal, which lost several citizens and whose territory in Casamance was used by Jammeh and the Junglers as a dumping ground for dead bodies, Equatorial Guinea would probably be amenable to a request for Jammeh’s transfer to the court,” Brody hoped. 

It will be up to the Special Prosecutor to decide how to charge Jammeh but Brody suggested that he be charged in one big criminal trial for the worst atrocities. This might include, Brody said, the killing of 59 West African migrants, the death of 41 people in the so-called presidential alternative treatment AIDS programme, his system of personally abusing and raping women brought to him by his subordinates, the death of dozens and detention of hundreds in the “witch hunts,” the killings of peaceful protesters in several demonstrations, the summary execution of nine death row inmates in April 2012, and a number of enforced disappearance and killing. “The list could be quite long.” 

Long overdue trials

Two trials have so far been held in The Gambia during the TRRC process for Jammeh-era crimes: the trial of the National Intelligence Agency heads, and the trial of former Junta member and local government minister Yankuba Touray. Other trials are ongoing abroad: Bai Lowe, a former Jungler, was sentenced to life imprisonment in Germany last year;  Ousman Sonko, a former Interior Minister, was sentenced to 20 years in jail in Switzerland on May 15, and another Jungler, Michael Sang Correa, is meant to be tried in the United States in September.

But there has been no trial in The Gambia after the TRRC report despite its recommendations. For several observers and human rights activists, the Gambian government is not serious about prosecutions. “The Gambian government has claimed that it is diligently working to ensure a comprehensive and inclusive transitional justice process. However, the government’s commitment to implementing the TRRC recommendations has often been met with scepticism, as its actions have not always aligned with its rhetoric,” said Priscilla Yagu Ciesay, co-founder and senior technical advisor of the Women’s Association for Victims’ Empowerment (WAVE-Gambia), who hails nonetheless the laws that have just been passed.

All Junglers released or at large

Under the current Adama Barrow government, Junglers who were arrested, including those who confessed to participating in heinous crimes, have all been released. It was the case in 2019 for Junglers Omar “Oya” Jallow, Amadou Badjie, Malick Jatta, Pa Ousman Sanneh, who had all testified before the TRRC. And in February 2022, the High Court of The Gambia ordered the release of Lieutenant General Saul Badjie along with two other Junglers, Landing Tamba and Musa Badjie. They had been arrested in Banjul only one month earlier, following their arrival from Equatorial Guinea where they were with the former president. The following month, two other Junglers, Alieu Jeng and Ismaila Jammeh, were released by the Gambian Armed Forces. Reason given was that they were being held without charge.

“The government of The Gambia is determined to ensure accountability, justice, and prevent the recurrence of such serious crimes, as expressed in the government’s White Paper on the TRRC recommendations,” Persson tried to reassure. “However, unlike in other jurisdictions, the lack of an adequate legal framework and capacities to try, in particular, international crimes, necessitated the design and implementation of the Special Accountability Mechanism,” she said.

It may still not be enough to convince everyone that the government is determined to act. “I think the Government is being reluctantly pushed into this and so, of course, they’ll find every reason to make things difficult for those pushing them,” said Alagie Barrow, the former lead investigator of the TRRC. “The Government is not interested in accountability and I believe they will only cooperate to the extent that they can say they cooperated. When the rubber meets the road they’ll chose political survival (power) over holding certain people accountable. I caveat this to say that I’m not a fan of what I consider to be an obsession with prosecuting Jammeh and the Junglers,” Barrow continued. “Addressing Gambia’s dark 22-year history should go beyond criminal prosecution of security personnel and Jammeh.”

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