{"id":76670,"date":"2021-05-03T12:23:10","date_gmt":"2021-05-03T10:23:10","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=76670"},"modified":"2021-06-14T09:16:10","modified_gmt":"2021-06-14T07:16:10","slug":"gambia-legal-junglers-defend-their-role-military-rule","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/76670-gambia-legal-junglers-defend-their-role-military-rule.html","title":{"rendered":"Gambia: When \u201clegal junglers\u201d defend their role under military rule"},"content":{"rendered":"\n

The Yahya Jammeh regime relied on lawyers to draft and enact decrees that got rid of fundamental human rights. Some of them, including the first Minister of Justice under the military junta, were called to testify before Gambia\u2019s Truth, Reconciliation and Reparations Commission. They essentially avoided to take personal responsibility.<\/strong><\/strong><\/p>\n\n\n\n\n\n\n\n

In the past few days, one of the most fast-trending slogans on Gambian social media sites has been \u201clegal junglers\u201d. This is to name the legal minds who helped entrenched the 1994-2017 military regime of Yahya Jammeh, and it refers to the \u201cJunglers\u201d, the feared hit-squad operating on the orders Jammeh. <\/p>\n\n\n\n

The highest qualification among soldiers who took power in Gambia in July 1994 was a \u201cA\u201d level held by Edward Singhateh, the number 2 of the coup makers. Soon, these men would nevertheless appear more sophisticated in grasping more power, politically and legally\u2014aided by a plethora of decrees they enacted. <\/p>\n\n\n\n

In the past week, two prominent Gambian lawyers who reportedly had significant influence on the drafting of some of these decrees\u2014Fafa Edrissa Mbai and Amie Bensouda\u2014faced the Truth, Reconciliation and Reparations Commission (TRRC), a body charged with investigating human rights violations under Jammeh\u2019s rule. <\/p>\n\n\n\n

Ruling by decree<\/h2>\n\n\n\n

Mbai was the junta\u2019s first Justice Minister who stayed on with them for six months while Amie Bensouda was their first Solicitor General. A veteran lawyer, Mbai had already been Gambia\u2019s Justice Minister from May 1982 to June 1984. His appointment under the new military junta made him one of few civilians in that government. He didn\u2019t last long. By February 1995, he was fired. But during his time as Minister, he was also sitting in the Executive Council, a body that effectively replaced the parliament in making laws.<\/p>\n\n\n\n

The Council started to issue a pile of decrees, a large number of which were giving the military leaders sweeping powers. Mbai participated in the creation of the decrees at three levels: drafting them at the ministry, deliberating on them in the cabinet and passing them in the Executive Council. <\/p>\n\n\n\n

Before the TRRC, the lawyer only took collective responsibility for decrees 7 to 25 that were made while he was in office. However, he denied playing any critical role in their drafting and passing. \u201cSoldiers believed, against better advice, that decrees were the most effective way of helping them achieve their objectives,\u201d he argued, adding he even earned the nick-name \u201cUncle human rights\u201d from the Junta members. \u201cThey were hell-bent on running on anyone who stood their way and they did. The tragedy is that the initial intentions they held changed when they tested political power and their objectives changed for the worst.\u201d <\/p>\n\n\n\n

Dialogue of the deaf<\/h2>\n\n\n\n

Mbai claimed he had a fringe role in the scheme of things. Before the Commission, it turned out a little different. While on official visit in Britain in December 1994 to ask the former British colony to lift a ban on The Gambia and allow tourists to come back to the West African country, he was interviewed on the BBC. \u201cThere is no mess,\u201d he then said of the junta\u2019s actions. \u201cI think Captain Jammeh\u2019s mission is to cleanse up the mess that has been created and perpetuated for over 30 years.\u201d He eloquently defended the military regime and spoke of their desire to ensure the reign of rule of law in the country. <\/p>\n\n\n\n

\u201cIn all honesty, do these decrees really reflect a respect for rule of law?\u201d asked the TRRC Lead counsel Essa Faal.<\/p>\n\n\n\n

\u201cThese decrees were the laws of the state at that time.\u201d<\/p>\n\n\n\n

\u201cThat does not answer my question. The question is whether these decrees would reflect the respect for rule of law?\u201d<\/p>\n\n\n\n

\u201cThese decrees provided that there will be a commission of inquiry.\u201d <\/p>\n\n\n\n

\u201cCan you answer the question, sir?\u201d repeated Faal three more times.<\/p>\n\n\n\n

\u201cI am not defending the decrees\u201d, Mbai dithered around. <\/p>\n\n\n\n

\u201cBut you defended them in your interview. You said those things were established to demonstrate our respect for the rule of law.\u201d <\/p>\n\n\n\n

\u201cNo, I did not say that. These decrees were the laws at the time.\u201d <\/p>\n\n\n\n

\u201cWere they just laws?\u201d<\/p>\n\n\n\n

\u201cThey were good laws and bad laws.\u201d<\/p>\n\n\n\n

Faal tried again, in vain, before making one last attempt. <\/p>\n\n\n\n

\u201cMy question is: would this be the standard of good laws in any society?\u201d<\/p>\n\n\n\n

\u201cIf these decrees violate human rights, then they are not good laws,\u201d answered Mbai.  <\/p>\n\n\n\n

\u201cExactly, and these decrees violate human rights.\u201d <\/p>\n\n\n\n

\u201cThen they are not good laws.\u201d <\/p>\n\n\n\n

The long-lasting impact of the junta\u2019s decrees<\/h2>\n\n\n\n

At the time of the coup on July 22, 1994, a popular Gambian corporate lawyer Amie Bensouda, then the Solicitor General, was abroad. Back into the country, she was effectively in charge of the Justice Ministry for 2 weeks prior to the appointment of Mbai as Justice Minister. Her former boss Hassan Jallow\u2014today Gambia\u2019s Chief Justice\u2014was in military detention with a number of top officials of the toppled civilian government. On July 29, under \u201cBensouda\u2019s watch\u201d, Decree No. 1 was issued by the junta, suspending parts of the 1970 constitution and with it, the parliament. \u201cThe Armed Forces Provisional Ruling Council shall have power to make laws for the peace, order and good government of The Gambia with respect to any matter,\u201d states Decree No. 1.  <\/p>\n\n\n\n

The decrees also gave the junta judicial powers, in some cases ousting the courts\u2019 jurisdiction to even question them. \u201cThe validity of this or any other decree shall not be questioned in any court of law,\u201d states Decree No. 1. <\/p>\n\n\n\n

Six months into this regime, Mbai was dismissed, together with Amie Bensouda. A Commission was established by the Junta and headed by Omar Alghali, a Sierra Leonean lawyer who would later become the Chief Justice. It found Mbai to owe the state 1.5 million dalasi (about 24,000 in today\u2019s euros) in tax arrears. Mbai filed a suit at the country\u2019s Supreme Court in November 1996, challenging the findings of the Commission. But as fate would have it, \u201chis\u201d Decree No. 11, as amended by Decree No. 25, which said no court can question a commission established by the military, caught up with him. \u201cMy case was stroke out by the Court, [which said] that it had no jurisdiction. The jurisdiction of the Court was ousted by the Decree. I felt very bad,\u201d Mbai testified.<\/p>\n\n\n\n

Thereafter, the Inspector General of Police was ordered to seize and sell Mbai\u2019s assets. The proceeds would go to settle his \u201ctax obligations\u201d. He was served an eviction notice from his property in Pipeline, a middle-class neighborhood about 10 minutes drive from Banjul, Gambia\u2019s capital city. For four years, he would go on to stay with his son at the Fajara Hotel, owned by a friend of his.<\/p>\n\n\n\n

Several former officials of the deposed government were also evicted the same way. Until today they could not all have their assets back. Another part of Decree No. 11 states that \u201cany order, ruling, finding of fact, seizure, sale or alienation of property or penalty imposed\u201d by any commission of inquiry established by the junta \u201cshall not be questioned or reversed by any Court or other authority under this Constitution or any other law.\u201d A lot of those decrees would later make their way into the new country\u2019s constitution that came into effect in 1997. They remain part of Gambia\u2019s laws to date. A 2020 attempt to abrogate the 1997 Constitution was short-lived after the draft failed to get parliamentary approval. The 1997 Constitution, and its infamous decrees, is still the law of the land. <\/p>\n\n\n\n

\u201cYou became a victim of your own creation\u201d<\/h2>\n\n\n\n

Mbai showed the Commission a letter from the national revenue authorities that found that he had in fact overpaid his taxes by D50,000 (about 800 euros today).<\/p>\n\n\n\n

\u201cThe irony is that all these rights violations happened as a result of the military decrees that were passed during the early days of Jammeh\u201d, said Faal. <\/p>\n\n\n\n

\u201cYes, I agree,\u201d replied Mbai.<\/p>\n\n\n\n

\u201cAnd a lot of those decrees were passed while you were Attorney General [and Minister of Justice]. People were evicted from their homes, arrests were ongoing,\u201d Faal continued.<\/p>\n\n\n\n

\u201cI was also evicted from my homes.\u201d<\/p>\n\n\n\n

\u201cYes, but I hate to say that you became a victim of a system you helped created.\u201d <\/p>\n\n\n\n

\u201cNo. My stance has always been to advise against abuse of human rights.\u201d <\/p>\n\n\n\n

\u201cBut you said you accept responsibility for these decrees.\u201d<\/p>\n\n\n\n

\u201cYes.\u201d<\/p>\n\n\n\n

\u201cSo, you became a victim of your own creation.\u201d<\/p>\n\n\n\n

\u201cNot my own creation. I did not create these decrees. I didn\u2019t enact the decrees. I was an adviser and my advice was against violations of human rights.\u201d <\/p>\n\n\n\n

\u201cHere are 24 decrees, and every single one of them has an inherent rights violations provision in them, you kept advising against them, they kept passing them, and you still continued in office without resigning.\u201d <\/p>\n\n\n\n

\u201cI was half way at sea,\u201d he replied enigmatically.<\/p>\n\n\n\n

Decree No. 4 proscribed publications, displays, distribution including through newspapers, books, circular pictorial or any other document to further a political agenda. Veteran Gambian politicians Sedia Jatta and Halifa Sallah of the People\u2019s Democratic Organization for Independence and Socialism party would be arrested under this decree for publishing their party\u2019s organ, Foroyaa. Decree No. 8 banned political activities.<\/p>\n\n\n\n

And more decrees were passed.<\/p>\n\n\n\n

Decree No. 45 established the National Intelligence Agency (NIA), under the Office of the President. It gave the NIA director general the powers to issue search warrants, which is a judicial function. Anyone aggrieved by the NIA could not go to court. You could only report to the country\u2019s president, who could decide or not to appoint a high court judge. Decree No. 57 gave the Minister of the Interior unlimited powers to order the arrest and detention without charge of any person \u201cin the interest of the security, peace, and stability of The Gambia\u201d. It abrogated applications for a writ of habeas corpus. Decree No. 66 extended the period of preventive detention up to 90 days. Decrees 70 and 71 increased the bond required from any independent newspaper publisher from D1000 to D100 000 (today about 1,600 euros).<\/p>\n\n\n\n

\"Amie
Amie Bensouda, under whose responsibility the first decrees of the junta were promulgated in July 1994: \"I could have said no probably.\" \u00a9 Mustapha K. Darboe<\/figcaption><\/figure>\n\n\n\n

Amie Bensouda\u2019s denial<\/h2>\n\n\n\n

Before the TRRC, Amie Bensouda claimed \u201cher\u201d decrees, though they gave the military sweeping powers, were meant to protect the public interest. \u201cI could have said no probably, but what weighed on me was the public interest. Could we contain the excesses of the military? Certainly, decrees were needed. Not for the benefit of the military but for the benefit of the people,\u201d she argued. But available evidence before the Commission suggest otherwise: people\u2019s assets were seized, arrests and indefinite detention occurred, as well as other forms of abuse.  <\/p>\n\n\n\n

\u201cAre you saying, Mrs. Bensouda, that these military decrees benefitted the public and, considering all the evidence that we have received, that this was a tool by Yahya Jammeh to entrench himself in power in this country?\u201d asked counsel Sagar Jahateh. <\/p>\n\n\n\n

\u201cThe decrees that I drafted were in the interest of the public. They incorporated them in the 1997 constitution. That is the choice of the Gambian people, not the Solicitor General or Mrs. Bensouda,\u201d she replied. <\/p>\n\n\n\n

\u201cThese decrees were churned out very quickly. Within a space of 15 days while you were Acting Attorney General, six decrees had been promulgated. In the instance of Decree No. 1 it was passed within one day after you consulted with the Chairman [Yahya Jammeh].\u201d<\/p>\n\n\n\n

\u201cYes, that is the nature of military rule because they don\u2019t have to take it to anybody. They are the Executive and they are the lawmaking body at the same time.\u201d <\/p>\n\n\n\n

\u201cIf you look at the provisions of Decree No. 1, it takes precedence over the constitution which was the sole jurisdiction of the Supreme Court at the time. The fact that even the courts could not question the validity of the Decrees, in my view gives them judicial powers because the courts were no longer relevant.\u201d<\/p>\n\n\n\n

\u201cI don\u2019t agree. Decree No. 1, as drafted, did not oust the jurisdiction of the courts. It did not suspend the courts.\u201d<\/p>\n\n\n\n

\u201cNot expressly but by implication it did.\u201d   <\/p>\n\n\n\n

\u201cI also don\u2019t agree with that.\u201d <\/p>\n\n\n\n

\u201cCan you tell us why? If you are not able to resort to the courts, if the courts are not able to question the validity of the decrees, the decree is supreme to the constitution, then I don\u2019t see what the role of the courts there is.\u201d<\/p>\n\n\n\n

\u201cWhat that means is that the courts do not have the jurisdiction to question whatever is done by decree. But it does not affect the continued existence of the courts. Let me remind you that this provision, in a different formulation, exist in the 1997 Constitution and it is still binding on the courts. So, the courts continue to exist.\u201d<\/p>\n\n\n\n

\u201cI did not say the courts did not exist. My point is that as far as this Decree [No. 1] is concerned, the jurisdiction of the court is ousted.\u201d <\/p>\n\n\n\n

\u201cIn so far as they cannot question the validity of a decree? Yes,\u201d Bensouda conceded.<\/p>\n\n\n\n

Bensouda denied that Decree No. 1 set the pace for the entire Constitution to be suspended, including its chapter on fundamental human rights.<\/p>\n\n\n\n

\u201cWhat Decree No. 1 did is to suspend all those provisions which were in the constitution but were no longer relevant to the situation\u201d, she said. \u201cThere was no president or cabinet, so the chapter on President and cabinet were suspended. There was no parliament, so the chapter on parliament was suspended. That is what Decree No. 1 did. Now, Decree 30, which came into force in March 1995, actually suspended the human rights provisions in the 1970 Constitution. By then there was a legal team advising the Armed Forces Provisional Ruling Council directly. These were not Gambians and I believe their advice was that there was no place for a human rights chapter in a military government.\u201d<\/p>\n\n\n\n

\u201cI believe that even before Decree No. 30 was promulgated, in Decree No. 1 there was no place for human rights,\u201d retorted the TRRC counsel.  \u201cThe spirit of Decree No. 1 was against protection of fundamental human rights.\u201d<\/p>\n\n\n\n

\u201cI don\u2019t agree. Decree No. 1 did not suspend fundamental human rights. It enabled us at the Ministry of Justice to consistently push for the military Junta to respect human rights,\u201d Bensouda claimed.<\/p>\n\n\n\n

<\/div>\n\n\n\n
\n\n\n\n
<\/div>\n\n\n\n

Justice Info has received a letter from a family member of Fafa Edrissa M'Bai, a former Minister of Justice under the military junta in Gambia, in response to this article. In the interests of transparency and fairness, we are publishing in its entirety this letter<\/a>, which takes issue with our coverage of the Truth, Reconciliation and Reparations Commission (TRRC) hearing in which M'Bai was questioned about his role in the early days of former dictator Yahya Jammeh's rule.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Yahya Jammeh regime relied on lawyers to draft and enact decrees that got rid of fundamental human rights. Some of them, including the first Minister of Justice under the military junta, were called to testify before Gambia\u2019s Truth, Reconciliation and Reparations Commission. 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