By Mary Wasike
mary.wasike@jfjustice.net
The truth commission wants former Gambian president Yahya Jammeh prosecuted for crimes against humanity for the widespread human rights violations that characterised his 22-year dictatorship.
The commissioners have recommended that Jammeh should be tried by an internationalised tribunal in a West African country other than The Gambia, under the authority of the Economic Community of West African States (ECOWAS) and/or the African Union (AU).
In its final report released to the public on December 24, 2021, the Truth, Reconciliation and Reparations Commission (TRRC) says the crimes and grave violations committed by Yahya Jammeh and security and government officials under his authority shock the human conscience.
“The context and widespread nature of the crimes, and their gravity clearly are such that they amount to crimes against humanity,” it says.
It adds that according to the definition of the Rome Statute of the International Criminal Court, the violations that were allowed to happen during Jammeh’s reign qualify to be classified as crimes against humanity because they were attacks directed against the civilian population. “The attacks were committed pursuant to or in furtherance of a state or organisational policy of the government of The Gambia and/or the NIA (National Intelligence Agency) to commit the attacks against the civilian population,” the report says.
The commission examines four options that could be pursued to ensure justice for the victims. It says the first one – local prosecution in The Gambia – would not yield full and proper prosecution of Jammeh and his co-perpetrators because The Gambia does not have the relevant applicable international laws. If this option is considered, it would mean creating a completely new regime that will import all the relevant international crimes, rules, and norms, as was the case in 2000, when the United Nations established a transitional administration in East Timor and set up a Serious Crimes Unit to investigate crimes committed between 1975 and 1999, and which were to be prosecuted before the Special Panels for Serious Crimes.
It says the country could also create a new statute that includes all the relevant international crimes that could be prosecuted under the circumstances for the purpose of prosecuting Jammeh and his co-perpetrators. Although this would allow the former president to be prosecuted for all the crimes he committed and the victims to have easy access to the proceedings, the country lacks capacity in terms of judicial and support staff, as well as necessary infrastructure, in addition to suffering financial constraints. Another pitfall is the resultant political fallout that could destabilise the country.
The second option – establishing an internationalised tribunal in The Gambia comprising Gambians and other nationalities (along the model of East Timor, Cambodia, and Sierra Leone) – would enable Gambians to participate and would help build the capacity of the country’s judicial system in terms of exposure and training for staff, and funding. However, prosecuting Jammeh at home is likely to encourage conflict and polarisation, and scuttle the goal of reconciliation, unity, and cohesion among local communities.
The commission also puts forward the possibility of trying Jammeh at the International Criminal Court (ICC) in The Hague, as the court has jurisdiction over crimes against humanity committed in the territory of any of its member states. The Gambia is a member of the ICC, which gives the court complementary jurisdiction over such crimes. This means that if The Gambia is unwilling or unable to prosecute the crimes committed by Jammeh, the ICC has the mandate to step in, or the country can simply refer the matter to the ICC, if the case is admissible before the court.
The disadvantage, according to the commissioners, is that the ICC only has jurisdiction over the relevant crimes starting from June 2002. This means it would not be able to prosecute a large chunk of some of the most serious crimes the former president is suspected to have presided over. These include the November 11, 1994 extra-judicial execution of 11 soldiers of the Gambia National Army, the assassination of Finance Minister Ousman Koro Ceesay in June 1995, and the unlawful killing of 14 people during the student demonstrations of April 10-11, 2000.
The commissioners unanimously recommended trying Jammeh at an internationalised tribunal set up outside the country, preferably in Senegal, where former Chad president Hissène Habré was prosecuted for crimes he committed in his country.
The TRRC considered four elements, which it says turned Jammeh’s and his co-perpetrators’ violations into crimes against humanity, according to the definition contained in Article 7 of the Rome statute, which states: “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”, and goes on to list the crimes, which include murder; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape “…or any other form of sexual violence of comparable gravity; enforced disappearance of persons; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
The commission considers that the violations it has identified as having been committed by Jammeh, state security agents including NIA officers, the Junglers, other members of the armed forces, and senior officials of his government are proscribed under Article 7 of the Rome Statute. “They include murder, rape and other forms of sexual violence, torture, inhumane and degrading treatment, enforced disappearance, and persecution. These crimes were directed at a civilian population. Where the victims were serving military personnel, it took place at a time when they were unarmed and needed to be treated as civilians. In almost all instances, the crimes were committed against unarmed persons who were already in custody or under the control of a state agent or organisation.”
Another element that defines the Jammeh-era abuses as crimes against humanity was that they were part of an organisational policy.
The commission says it gathered evidence that perceived political opponents of Jammeh’s regime who were arrested and detained, were routinely subjected to torture, sexual violence, and/or other inhumane acts by state security agents, including NIA agents and the Junglers. Several victims were subsequently killed. According to TRRC, this shows that it was an organisational policy at NIA to carry out torture of detainees. The agency had special rooms called “torture chamber” or “talk true” and “Bambadinka” cells which were specifically used as places for torture, as well as special torture equipment such as electrocution machines, iron beds, and wall/floor shackles.
Murder and enforced disappearances of civilians were also part of the organisational policy of Jammeh’s government, the report says, adding that the persons who were handed over to the Junglers were either disappeared, killed, and/or tortured.
“The existence of the state or organisational policy to commit the crimes enumerated herein is demonstrated by the repetitive recurrence of the same types and pattern of violations often by the same set of people (NIA and Junglers) with impunity and/or the protection of Yahya Jammeh. All the Junglers and the NIA personnel were salaried state officials who were working for and in state institutions under Yahya Jammeh.”
The report says Jammeh was aware about the state policy to torture, kill, or disappear because he often made public statements to the effect that he would send his opponents “six feet deep” or to his “five star hotel”, as he described the notorious Mile 2 Prison, which was known for carrying out torture on prisoners.
The truth commission says the crimes committed by the NIA personnel and the Junglers, although widely known to have been taking place, were never investigated by the government, which in some cases actively took part in covering them up and getting rid of the evidence. This, according to TRRC, shows that the crimes were committed pursuant to a state or organisational policy.
The commissioners describe the third element as the fact that the crimes were part of a widespread or systematic attack directed against a civilian population over a long period of time. They were widespread because of the number of victims involved – between 214 and 250 unlawful killings, and hundreds of victims of other crimes including torture, sexual violence, and other inhumane acts – and the fact that the victims come from all over The Gambia as well as at least 67 West Africa migrants.
The crimes were systematic because they targeted people of similar characteristics – they were actual or perceived opponents of Jammeh personally or politically – and they followed defined patterns – the victims would be arrested and be taken to the NIA or Mile 2 Prison, where they would be detained, interrogated and tortured, or handed over to the Junglers to be killed and/or sexually assaulted.
The fourth element of the commission’s definition of crimes against humanity states that Yahya Jammeh and his co-perpetrators knew that their conduct was part of a widespread or systematic attack directed against a civilian population.
The former president either directly ordered or knew that the criminal conduct by the NIA and the Junglers was carried out on his behalf. The top leadership of both NIA and the Junglers directly reported to him. “He knew the activities they were involved in and often received reports from them and gave them directions or orders,” the commission says.
“The violations enumerated herein are a course of conduct involving the multiple commission of acts proscribed in Article 7 of the Rome Statute committed against the civilian population or soldiers who are hors combat and in custody and carried out in furtherance of a state policy.”
The commission’s list of the crimes that Jammeh and his co-conspirators should face include torture of security detainees on September 6, 1994; torture and inhumane treatment of political detainees at Mile 2 Central Prison; torture, inhumane treatment, and extra-judicial execution of 11 soldiers on November 11, 1994; unlawful arrest, detention, and torture of Captain Sana B. Sabally and Captain Sadibou Hydara; assassination of Finance Minister Ousman Koro Ceesay; unlawful detention, inhumane treatment, and torture of the People’s Progressive Party demonstrators in 1995; attack on United Democratic Party supporters at Denton Bridge 1996; attacks on the media; unlawful killing of student protesters on April 10-11, 2000; and the unlawful killing of Lieutenant Almamo Manneh and Sergeant Momodou Dumbuya in January 2000.
The commission also presents a long list of crimes committed by Jammeh’s death squad – the Junglers – and the National Intelligence Agency as instruments of oppression and torture.
