20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
9 December 2021
Name of the Event: Justice Must Happen for Gambia (co-hosted by the Republic of Uganda and Africa Legal Aid)
Report by: Pauline Pfaff, Junior Research Associate PILPG-NL
Highlights:
The recently released report of the Truth, Reconciliation and Reparations Commission identifies former president Yahya Jammeh and others as perpetrators of grave atrocities and calls for criminal prosecutions.
Any justice measures adopted should be victim-centered and -led.
The panelists see the establishment of a hybrid tribunal as the best option to reconcile the various competing needs in The Gambia, including proximity to affected communities, security concerns, and mobilizing national and regional political will.
Speakers:
Evelyn A. Ankumah, Executive Director of Africa Legal Aid;
Reed Brody, International Commission of Jurists;
Fatoumatta Sandeng, spokesperson Jammeh2Justice Campaign;
Martin Kyere, survivor of the West African Migrant Massacre in The Gambia;
Toufah Jallow, Gambia #MeToo Movement and founder of Toufah Foundation;
Salieu Taal, President of the Gambia Bar Association;
Justice Mbacke Fall, former General Prosecutor of the Extraordinary African Chambers and Prosecutor in the Hissène Habré case;
Femi Falana, Nigerian constitutional lawyer;
Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court
Summary of the Event:
The moderator, Evelyn Ankumah from Africa Legal Aid, opened the side event with an overview of the most recent developments in The Gambia in relation to accountability for atrocity crimes committed by former head of state Yahya Jammeh and his associates. On November 25, 2021, the Truth, Reconciliation and Reparations Commission (TRRC) issued its report on the crimes committed during the Jammeh era and recommended the prosecution of those most responsible. Karim Khan, the prosecutor of the International Criminal Court (ICC), had previously tweeted that “Justice must happen” for The Gambia. Ankumah further highlighted three fundamental agreements among the panelists: first, that there is a need for accountability; second, that justice should be delivered in a timely manner to victims; and third, that justice should be done at home, meaning within The Gambia, or as close to it as possible, in West Africa.
The first speaker, Reed Brody from the International Commission of Jurists, played a video which elucidated the history and situation of The Gambia and included various victim statements. The crimes committed include murder, torture, sexual violence and the forcing of HIV positive individuals to participate in fraudulent medical treatments. Brody highlighted that the Gambian government is to publish a summary of the TRRC report and to introduce it to the United Nations General Assembly by December 2021. Moreover, the government has a set timeframe of six months to publish a white paper on the implementation of the TRRC’s recommendations.
Brody shared that there is a consensus among stakeholders, including victims, scholars, and non-governmental organisations, that a hybrid tribunal for The Gambia would be the most appropriate forum through which to pursue those recommended for prosecution by the TRRC. He named the Economic Community of West African States (ECOWAS) as the appropriate partner for such a tribunal, as nationals of other African states were also victims of human rights violations during the Jammeh era. He also presented ECOWAS’s involvement as having the potential to garner regional support, particularly, to persuade Equatorial Guinea to extradite Jammeh.
Next, Fatoumatta Sandeng spoke on behalf of the Jammeh2Justice Campaign to express victims’ perspectives. She identified five fundamental demands: first, assurance – victims demand assurance that tangible steps towards accountability are taken. Second, empathy – it is important that people can relate to what victims are going through on a daily basis and understand that traumas are present continuously. Third, inclusion – victims want to be part of and take the lead in the justice process with the support of other stakeholders. Fourth, justice to be done close to home to be able to relate and identify with it and achieve greater impact on the ground. Fifth, she expressed a desire for justice to be done in a timely manner, recognizing that the process cannot take place overnight, but that it must remain an item on the agenda.
The subsequent speaker, Toufah Jallow, went into greater detail on the modalities of justice for survivors of sexual violence. Due to the special characteristics of crimes of sexual violence, she expressed strong support for the use of restorative justice mechanisms. She underlined the need for a broader societal process to facilitate the recognition of sexual violence and an attitude change to better prevent future crimes. Further, a more dialogue-based restorative mechanism would lower barriers for survivors to tell their story and receive recognition for their suffering from both the perpetrator and the community. She highlighted that within The Gambia local processes focused on restorative justice are present which could be centralized and standardized for a national approach to Jammeh’s crimes.
Salieu Taal, president of the Gambia Bar Association, focused in his statement on the possibility of a hybrid tribunal. He reaffirmed that, no matter its form, any justice process in The Gambia is to be victim-centered. Based on stakeholder consultations and expert meetings, a hybrid tribunal was identified as the best way to move forward in the specific situation of The Gambia. Taal highlighted that such a court would be in geographical proximity to the victims and would, first and foremost, be Gambian. At the same time, it would benefit from international support where Gambian resources and legislation are not capable on their own of prosecuting Jammeh and his associates effectively. A hybrid court further accommodates for local specificities, such as the need, for security reasons, to try Jammeh outside The Gambia, while remaining in the region. He noted that the ICC is physically distant, however, should be considered a measure of last resort if other, more regional approaches fail.
Next, Femi Falana cautioned to hold up the momentum created by the TRRC report and pledge of the Gambian government to implement the recommendations fully. He agreed with Taal that it is not feasible, for political reasons, to try Jammeh within The Gambia and proposed to explore a similar route as taken by Sierra Leone in the Charles Taylor case and move the trial to a neighboring country, potentially Ghana or Nigeria. He mentioned the establishment of a hybrid court as a viable alternative, either in cooperation with the African Union or ECOWAS. Moreover, he raised the possibility for The Gambia to introduce the TRRC report to the United Nations Security Council to request the establishment of a special tribunal.
Next Martin Kyere, the only survivor of the West African Migrants Massacre, where 50 Ghanian and other West African migrants were killed by members of Gambian security forces in 2005, underlined the commitment of him and the families of the other victims to pursue justice. He signaled their readiness to consult their lawyers on approaching other African courts or the ICC to seek justice if the Gambian government fails to implement the TRRC recommendations.
Finally, Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court, addressed the participants in a pre-recorded video statement and reiterated the stance that impunity is not an option for The Gambia. Dieng underlined the importance of the principle of universal jurisdiction and the possibility for the ICC to step in if the Gambian authorities prove unwilling or unable to deliver justice.
Following this statement, Ankumah opened the floor for questions. Several victims of crimes committed during Jammeh’s rule expressed their support for the views and work of the panelists. Participant Saramba Kandeh asked the panel how reparations may be incorporated into a hybrid tribunal. Sandeng responded that extensive outreach programs in local communities will be necessary to explain that reparations are not the sole purpose of criminal proceedings, but justice. She nonetheless acknowledged that reparation orders should form part of such a court’s mandate. Jallow further stressed the importance of a parallel restorative justice approach to complement criminal proceedings.