- Last Updated
- March 16, 2021
- 1:43 am
The Gambia
Yahya Jammeh came to power in 1996 in a coup that ended the 24-year rule of the independence era president, Dawda Jawara. Promising development and reform, Jammeh’s regime initially received support from a large segment of the population who were eager to see the country move in a new direction. Over the 23 years of his rule, Jammeh’s regime became increasingly authoritarian, with power evermore concentrated in the President’s hands.
In 2005, Human Rights Watch published a report documenting a decade of systemic violations of human rights, particularly against journalists, opposition figures and civil society. Lesser known though equally egregious crimes of sexual violence, violent repression of the LGBT communities, and detention and abuse of persons living with HIV also characterized the regime.
As a consequence, numerous members of his own security forces were among those allegedly killed or tortured under his regime. His government was also responsible for deep structural injustices: while Jammeh and those closest to him amassed significant personal wealth, Gambia remained one of the poorest countries in the world, with few industries, little infrastructure, and limited government capacity and services.
Jammeh hung onto power by repeatedly changing the Constitution to suit his interests, and where that was not sufficient, directly interfering in elections. Despite these patterns, Jammeh lost the presidential election in 2017 to Adama Barrow, who was sworn into office following a period of instability, eventually resolved by regional negotiations and the exile of Jammeh to Equatorial Guinea. The Barrow government moved quickly to create a Truth, Reconciliation and Reparations Commission (TRRC).
Though trials were initiated against a handful of Jammeh-era security and intelligence figures, the Ministry of Justice soon settled on a policy of delaying prosecution until the truth commission had fulfilled its mandate. Despite the fact that the new government has taken major steps towards achieving its stated goal of bringing about a sweeping democratic transition, in recent months civil society watchdogs have warned of backsliding, pointing to banned protests and the imprisonment of critics of the new government.1
Commentary & Reports
African Network against Extrajudicial Killings and Enforced Disappearances (ANEKED) Truth, Reconciliation and Reparations Commission Digest (2019 & 2020)
Summary of all public hearings of the TRRC, including names of perpetrators cited and a detailed listing of alleged human rights violations.
UNDP National Strategy Document for Transitional Justice in the Gambia (December 2018)
This document was developed as a joint project of international and national civil society and government actors. It provides details of each Gambian transitional justice institution and the interrelationship between these mechanisms, as well as setting forth the main objectives of and challenges to transitional justice in Gambia. Focus groups representing diverse population sectors also contributed to developing the strategy.
Human Rights Watch “State of Fear: Arbitrary Arrest, Torture and Killing” 2015
Based on interviews from 2014 and 2015, this report documents human rights violations and state repression during the Jammeh regime, particularly the targeting of journalists, students, civil servants and the LGBT community. The report offers insight into the role that the National Intelligence Agency (NIA), the so-called “Junglers” (the presidential guard) and the Serious Crimes Unit and Intervention Unit of the Gambian police force.
Accountability in the Gambia
Priorities and challenges for strengthening accountability for international crimes in the Gambia
Domestic accountability
The Gambian government has postponed prosecutions of most individuals accused of committing grave human rights violations during Jammeh’s rule until such a time as the TRRC has completed its work. The TRRC Act vests the Commission with authority to identify and recommend for prosecution those persons who bear the greatest responsibility for human rights abuses committed during the last regime.
By the end of 2020, the TRRC had held fifteen sessions of public hearings, notable for their focus on testimony from high-level perpetrators. The Commission has secured the cooperation of state and security service officials who served under the last regime, due, in large part, to the fact that the TRRC Act envisages the possibility of amnesty for accused perpetrators who give truthful and full confessions. Although the Act expressly prohibits amnesty for abuses tantamount to crimes against humanity and other grave crimes, it says little as to what criteria govern eligibility for amnesty and what procedure or regulations will govern the actual granting of amnesties. Questions also remain regarding the extent to which the Commission can share its investigations and statements collected from witnesses or accused perpetrators with future investigators and prosecutors.2
Amongst the Gambia Truth Commission’s unique characteristics is its statutory responsibility to design and implement a national reparations programme for victims identified through its work. The Commission has also elected to give interim reparations to select victims who participate in its investigations and have medical or other urgent needs.
The quest for justice: Survivor and activist who testified before the Truth Commission in The Gambia
Toufah Jallow is a victim of sexual violence at the hands of former Gambian President Yahya Jammeh. Jallow talks about her work as a justice activist, the role of civil society and the work of the Truth Commission in The Gambia (TRRC) where she testified.
Citations & References
1: Cristina Krippahl, Deutsche Welle (27 January 2020) “Gambia: ‘We are moving from high hopes to a letdown.’”
2: United Nations Office of the High Commissioner for Human Rights (27 November 2019) “Preliminary Observations from the Official Visit to The Gambia by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli from 20 to 27 November 2019”
Political will
Is there political will for criminal accountability for international crimes in the Gambia?Prosecutions have largely been postponed until the TRRC has completed its mandate. The former Minister of Justice, Abubacarr Tambadou, decided on a sequenced approach, in which truth-seeking, through TRRC proceedings, would precede criminal investigations and prosecutions. Even so, nine persons from the leadership of the Jammeh-era National Intelligence Agency (NIA) were arrested and brought to trial soon after transition. The accused officials, known as the NIA 9, face twenty-five criminal accounts including murder, conspiracy to murder and assault causing bodily harm. Since the trial began in 2017, the number of defendants has dropped to seven, after Yusupha Jammeh was acquitted due to lack of evidence and Louise Gomez died in state custody. The process has met with multiple delays and is now extending into its fourth year.
The decision to postpone the majority of trials was motivated, in part, by the recognition that the judicial system had been weakened by decades of neglect and political interference under the previous regime. Significant time and resources would be needed to rebuild the judicial system before it was capable of handling the number of cases and the sheer complexity that prosecuting serious crimes of the last government might entail. The challenges experienced in the NIA 9 trial support this claim. Similarly, the TRRC would be indispensable for collecting evidence of crimes committed by the regime, something that the country, after decades of Jammeh rule, has little capacity to achieve otherwise.
The number of persons accused of grave human rights violations is relatively small in The Gambia, particularly when compared to the caseload of most countries transitioning from civil war or dictatorship. This has led some civil society and victims’ groups to question whether there is strong political will for criminal justice.3 Reinforcing this concern is the fact that no official vetting exercise has taken place in the ranks of government or security forces. Civil society groups contend that individuals accused of enabling human rights abuses remain in positions of authority, with some having moved up the ranks of government or military since the democratic transition.4
International Criminal Justice in West Africa
Roland Adjovi, International Law Advisor for the Global Maritime Crime Programme in West Africa at UNODC, analyses the interplay between national, regional and international judicial mechanisms and their application in West Africa. He also discusses various legal instruments, tools and mechanisms, such as the Malabo Protocol, the African Court on Human and Peoples’ Rights, the International Criminal Court and hybrid courts.
Citations & References
3: Gambia Centre for Victims of Human Rights Violations (2019) “Submission of an alternative report on the country situation in The Gambia”
4: Mustapha K. Darboe, Justiceinfo.net (25 February 2020) “Gambia: Finger Pointing in the Security Forces.”
Commentary & Reports
United Nations Office of the High Commissioner for Human Rights “Preliminary Observations from the Official Visit to The Gambia by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli, from 20 to 27 November 2019”
This preliminary report by the Special Rapporteur on transitional justice assesses measures adopted by Gambian authorities in the fields of truth, justice, reparations, memory and guarantees of non-recurrence. In his remarks, the Special Rapporteur recognises the progress achieved so far and commends the Truth Commission for getting the population’s attention. He also expresses concern about the long wait for prosecutions and reparations for victims, and an apparent lack of institutional reforms and vetting.
Gambia Centre for Victims of Human Rights Violations “Submission of an alternative report on the country situation in The Gambia” (2019)
The Gambia victim’s organisation wrote this submission to the UN Human Rights Committee, on the occasion of Gambia’s Universal Periodic Review. The Victims’ Centre expresses concern that, beyond truth-seeking, transitional justice mechanisms have been neglected, highlighting in particular a lack of vetting in the civil and security services, the ongoing use of excessive force by the police, and the continued existence of the National Intelligence Agency (NIA). The Victims’ Centre expresses frustration at the lack of a prosecutorial strategy, noting that charges were dropped against alleged perpetrators without explanation.
Fatou Jagne “New regime crackdown a chilling reminder of 22 years of repression” (Article 19: 28 January 2020)
Fatou Jagne expresses concern at the apparent increase in crackdowns on protesters and journalists in The Gambia. In this opinion piece, she calls for an immediate investigation into the excessive use of force during a protest on 26 January 2020. She cites the closure of two radio stations, the arrest of journalists and a ban placed on the ‘Three Years Jotna’ movement, calling the incidents ‘chilling reminders’ of past repression.
Amnesties
How have amnesties impacted on domestic efforts to hold those responsible for international crimes to account in the Gambia?
The TRRC Act makes the Commission responsible for recommending amnesties for perpetrators of human rights violations who give a truthful confession and express remorse for their actions. The statutory provision excludes acts tantamount to crimes against humanity from eligibility for amnesties. While the final decision to grant amnesties remains in the hands of the President, the Commission is responsible for determining which alleged perpetrators are recommended for prosecution and which are recommended for amnesty.
Former Gambian Minister of Justice, Abubacarr Tambadou, spearheaded The Gambia’s transitional justice process. While the Minister assured victims that no amnesty would be given without the relevant victim’s consent, neither the TRRC nor the Ministry has clarified how perpetrators might apply for amnesty or how victims could refuse or approve a proposed amnesty.
In August 2019, Minister Tambadou ordered the release of four former Junglers who worked under Jammeh’s direct command. The four men, Pa Ousman Sanneh, Malick Jatta, Omar Jallow and Amadou Bargie, were released on the grounds that they had truthfully confessed to and expressed remorse for their crimes.
Although the Justice Ministry stressed that this release was not equivalent to an amnesty, its action has nonetheless raised concerns about the extent to which victim’s rights will factor into amnesty decisions. Two other Junglers, Ismaila Jammeh and Alieu Jeng, remained in jail, after the Minister determined they had not given honest confessions to the TRRC. Accordingly, the Gambian judiciary must now contend with the public outcry over the release of Junglers who gave testimony, and with the legality of retaining others in jail without trial.
Commentary & Reports
Kebba Ansu Manneh “Trading Truth for TRRC Amnesty; Who’ll get off the Hook?” (The Chronicle: 23 February 2019)
Captain Bubacarr Bah was the first witness to confess before the TRRC. He asked for forgiveness and expressed his wish to apply for amnesty. The testimony was a source of diverging opinions in Gambian society. Part of the TRRC mandate includes creating an amnesty commission and recommending prosecutions, but the TRRC is already late into its work and, as yet, has not clarified how an amnesty procedure will work.
Mustapha Darboe“Gambia: the Truth Shall Set You Free – or Not” (JusticeInfo: 2 June 2020)
The former Minister of Justice appears to have made a deal with jailed ‘Junglers’, President Jammeh’s unit of elite hitmen. The Junglers who told the truth before the TRRC were granted temporary release. It then fell to the Minister to determine the truthfulness of their statements, freeing some and retaining others.
Coordination across transitional justice mechanisms
Prosecutions and the grant of amnesties will depend on the Commission’s recommendations in its final report.5 President Barrow indicated that he would seek Jammeh’s extradition from Equatorial Guinea, if the TRRC recommends his prosecution.6 Several former hitmen, members of Jammeh’s security forces, have confessed before the TRRC to participating in grave crimes, including torture, murder, extrajudicial executions and forced disappearances. Despite the outcry from victims, four were released following their testimony, under an arrangement between the former prisoners and the Ministry of Justice, which was never made fully public. In explaining this decision, former Justice Minister Tambadou indicated that the self-confessed hitmen will be important for building future cases against other perpetrators, when the TRRC has finished its work and the time for prosecutions comes. The TRRC’s proceedings have been widely followed throughout the country on radio and television, as once feared high-ranking members of the old regime have revealed shocking details about the country’s past. These confessions are one of the main reasons for the wide attention that the Commission has attracted at home and abroad. Yet to some victims, the spotlight on perpetrator testimony and possible amnesties has resulted in a Commission that is heavily focused on high-profile confessions at the expense of consideration for victims’ rights and expectations that perpetrators will be brought to justice.7 Transitional justice in The Gambia was originally envisaged as a process reaching beyond truth- and justice-seeking efforts to include institutional and legislation reform. In September 2020, the National Assembly rejected the draft of a new constitution, raising concern among civil society groups that political will for a major break with the past is waning in the highest ranks of government.8 Yahya Jammeh amended the Gambian Constitution 50 times during his presidency. Upon entering office, President Adama Barrow ranked drafting and passing a new constitution among the first priorities of his administration. After nationwide consultations, the Constitutional Review Commission (CRC) presented a draft that was widely supported by the population.9 Yet, when finally presented before the National Assembly, the draft was rejected, with Assembly Members close to Barrow instrumental in voting it down.Citations & References
5: Human Rights Watch (2020) “Gambia: US Charges Alleged ‘Death Squad’ Member with Torture”
6: Ruth Maclean and Saikou Jammeh (25 January 2018) “Yahya Jammeh, former leader of the Gambia, could face extradition”, The Guardian.
7: Ruth Maclean and Saikou Jammeh (23 August 2019) “A killer is always a killer: Gambia gripped by Jungler’s testimony”, The Guardian.
8: Sait Matty Jaw (24 September 2020) “The Gambia: Why MPs just shot down the popular new draft constitution”, African Arguments.
9: Afrobarometer (2018) “Summary of Results: Afrobarometer Round 7, Survey in the Gambia”, Centre for Policy, Research and Strategic Studies (CEPRASS)
Commentary & Reports
Sait Matty Jaw “The Gambia: Why MPs just shot down the popular new draft constitution” (African Arguments: 24 September 2020) EN/FR
Passing a new constitution in Gambia would have marked a clear break with the dictatorship of former President Jammeh. The 2018 Afrobarometer survey found strong support for the draft constitution’s key provisions, such as presidential term limits and quotas for women’s representation in the National Assembly. Though widely supported by citizens, the constitution did not pass in the National Assembly.
Sait Matty Jaw argues that those voting against it were motivated by a desire to allow President Barrow to stay in office. The future of the draft constitution is unknown. What is clear, however, is that Gambia’s 2021 presidential election will be organised under the problematic 1997 Constitution.
Interview: Essa Faal “We don’t want the truth commission to be seen as a toothless bulldog” (JusticeInfo: 20 January 2020)
This interview with TRRC Lead Counsel Essa Faal covers a range of topics, including some of the most controversial issues that emerged in the first year of the Commission’s work. Faal discusses the progress of the TRRC and its impacts on Gambians. He also explains his work as a prosecutor in the early years of the Jammeh regime.
The interview continues with more controversial topics, such as the release of perpetrators who confessed to the TRRC, the lack of clarity around amnesties, and accusations of wrongdoing made by witnesses against ICC Prosecutor, Fatou Bensouda, when she served in the Gambian Justice Ministry
Mustapha Darboe “Key Junta Member Touray puts Gambia’s Truth Commission to the Test” (JusticeInfo: 28 June 2019)
Yankuba Touray was one of the leaders of the 1994 military coup. When summoned before the TRRC, Touray claimed that he was protected by ‘constitutional immunity’ and walked out. The TRRC filed a case of contempt and ordered his arrest. His claim to immunity bestowed by the 1997 Constitution raises questions about whether the provisions of immunity specified in that Constitution do indeed apply. Touray’s actions also tested the extent to which the TRRC can compel witnesses to speak.
Human Rights Watch “Gambia: Commission Uncovers Ex-Dictator’s Alleged Crimes” (HRW: 4 December 2019)
During the first year of the TRRC’s work, 168 witnesses spoke to the Commission, including high-level officials from the former regime. The commission has amassed significant testimony, including confessions that link the former president to direct responsibility for grave crimes, including sexual violence, the murder of 56 West African migrants as well as poisoning and abusing villagers during ‘witch hunts’.
Louise Hunt “The Truth is not enough for Gambia’s regime victims” (The New Humanitarian: 23 September 2019)
The TRRC has managed to secure numerous confessions from high-level perpetrators. For some victims, these confessions have come at a high cost. The release of ‘Junglers’, based on agreement between Minister of Justice and former detainees, left victims feeling betrayed. Also, the central role played by the Justice Ministry raises questions about the independence of the transitional justice process.
Prosecuting sexual violence
Sexual assault and exploitation were an integral part of President Jammeh’s regime. This violence was largely unreported, due to fear of retribution and the severe social stigma that survivors often face. Since the democratic transition, civil society and victims’ groups have unearthed evidence of a sophisticated system of sexual exploitation and abuse under President Jammeh. Survivors recount that Jammeh abused his authority as President and his control over government institutions to coerce young women into his sphere of influence before assaulting them.
Beyond the many allegations of sexual violence implicating Jammeh and his close associates, gender-based and sexual violence also featured in wider patterns of human rights violations committed by security and state institutions under the former government. In consultations with rural women, the ICTJ found that gender-based violence featured in patterns of arbitrary arrest, torture, ill-treatment, forced labour and land confiscation.
Thus far, women’s voices have been underrepresented in Gambia’s transitional justice process. Cultural and religious factors render it difficult for women to speak out about their experiences, putting added responsibility on transitional justice institutions to create safe, supportive and meaningful options for women to seek justice and reparations.
Commentary & Reports
Birgit Schwarz & Marion Volkmann “Gambia’s Women Break Their Silence” (Human Rights Watch: 26 June 2019)
In this interview, SGVB Expert Marion Volkman describes the approach she and her associates adopted when investigating sexual crimes committed by former President Jammeh. The interview also details the efforts to find justice of survivor and activist, Toufah Jallow. Jallow has come forward in hopes that her story can help break a culture of silence which made it difficult for her to seek help and continues to perpetuate violence against women.
Submission of rural women to TRRC (ICTJ: 2020)
Working through local women’s groups, the ICTJ facilitated a series of dialogues where women could learn about the Truth Commission and speak about their own experiences and their recommendations for the TRRC. The initiative aimed to give women who were not comfortable giving public testimony a platform to be acknowledged and heard at the national level.
International justice
A victim-led coalition of national and international civil society organisations are mobilising to campaign for the extradition of former President Yahya Jammeh to face trial for alleged crimes against humanity. A number of options for prosecuting Jammeh and core members of his security services are being put forward by the coalition. This includes the regional option of securing Jammeh’s extradition to Ghana to face trial for his role in ordering the summary execution of 56 African migrants, including forty-four Ghanaians. A second possibility would involve establishing a hybrid court in The Gambia, with jurisdiction to hear charges brought against former President Jammeh for the commission of international crimes.
Meanwhile, two former members of Jammeh’s infamous ‘Jungler’ death squad are currently facing charges under international jurisdiction laws in the United States and Switzerland. If these cases progress, they will be the first trials relating to possible international crimes committed by members of the last regime.
Will there be a hybrid court in The Gambia?
A number of options are being explored to bring former President Yahya Jammeh to justice. Of the two most promising options, one is the possibility of extraditing Jammeh to face trial in Ghana, and the other would involve creating a special Chamber for International Crimes within The Gambia. The latter option would be significantly more complex, though possibly more relevant for Gambians, who would see justice being done close to home.
If extradited to Ghana from Equatorial Guinea, where he is currently in exile, Jammeh would most likely face trial within the Ghanaian legal system rather than within a hybrid or internationalised court. In 2005, President Jammeh allegedly ordered the murder of 56 African migrants, including 44 Ghanaians, on suspicion of being mercenaries. In exchange for their release, four former Junglers testified before the TRRC and gave crucial evidence showing that Jammeh had ordered numerous torture and executions, including the summary killing of the African migrants. Under Ghanaian law, most international crimes can be tried in national courts, theoretically rendering it unnecessary to create a hybrid court with special jurisdiction for international crimes.
A second option for bringing Jammeh to trial would involve the creation of a special chamber or a hybrid court within The Gambia. This option could follow the example set in the trial of Hissène Habré, where the Extraordinary African Chambers was established within the Senegalese legal system, and was empowered by the African Union to try international crimes.
Alternatively, Gambia might set up a hybrid court similar to the UN-mandated Sierra Leone Special Court or the currently operational Special Criminal Court in the Central African Republic. This course of action would require creating an internationalised court within The Gambian judiciary, applying a combination of national and international laws and procedures. Moreover, it would likely require significantly more time and financial resources than the Ghanaian option. On the other hand, a special court in The Gambia would allow for much closer engagement on the part of victims and civil society. Potentially, this option could also lead to trials against all of those identified as most responsible for grave human rights violations committed under the last regime, and not just Jammeh himself.
Commentary & Reports
Franklin Oduro “Bringing Yahya Jammeh to Justice in Ghana” (Wilson Center – Africa Up Close: 5 September 2018)
This article details the first steps in a victim-driven effort to bring Yahya Jammeh to trial. A coalition of victims and civil society organisations are mobilising for the extradition of Jammeh to Ghana, where he would face charges for the murder of African migrants in 2005.
Universal jurisdiction
Michael Sang Correa, a former ‘Jungler’, was indicted in the United States on torture charges in June 2020. This would be the first prosecution of a member of Jammeh’s security apparatus for international crimes anywhere in the world. The USA has no law formally authorising universal jurisdiction: under the 1994 federal extraterritorial torture statute (18 USC 234OA), however, anyone present in the USA can be tried for acts of torture, regardless of their nationality, the nationality of their victims, or where the act of torture was committed.10
Ousman Sonko, another former member of Jammeh’s ‘Jungler’ death squad and an Interior Minister under Jammeh, has been imprisoned in Switzerland since 2017, where he currently remains in pre-trial detention. Through the office of the Ministry of Justice, The Gambian government is cooperating with Swiss authorities in the Sonko case by contributing materials and statements. The TRRC has also proved valuable in advancing the investigation (TRIAL International).11 Switzerland recognises universal jurisdiction, allowing its courts to prosecute individuals suspected of war crimes or crimes against humanity, regardless of the nationality of the perpetrator or victims, and regardless of whether these crimes were committed outside Swiss territory.
Justice for Victims in Liberia: Application of the Principle of Universal Jurisdiction
Alain Werner, Director of Civitas Maxima, looks back at the trials that took place in France, Switzerland and the United States for war crimes committed in Liberia. In this interview, Werner presents the work of Civitas Maxima as well as the different judicial mechanisms that were implemented to bring justice to the victims. Werner underlines the importance of these initiatives and hopes to one day see justice done on Liberian territory.
Citations & References
10: 18 USC 234OA
11: Trial International Ousman Sonko (Trial International: 19 January 2021)
Commentary & Reports
Mustapha Darboe “Ousman Sonko: A view on the Swiss Case, From Gambia’s Truth Commission” (JusticeInfo: 7 May 2020)
Ousman Sonko has been imprisoned in Switzerland where he may be prosecuted for serious crimes allegedly committed under his authority in the Gambia. The TRRC has contributed significantly to the work of the Swiss judiciary. Hundreds of testimonies have been collected by the TRRC, with Sonko’s name emerging several times in witness statements.
Human Rights Watch “Gambia: US Charges Alleged ‘Death Squad’ Member of Torture” (HRW: 12 June 2020)
The indictment of Michael Correa is the first prosecution of a member of Jammeh’s death squads anywhere in the world. Correa is implicated in some of the Jammeh government’s most notorious crimes. The indictment comes in part due to the work of a coalition of victims and human rights organisations which urged justice officials in the USA to investigate allegations of international crimes committed by Correa.
