By Reed Brody and Salieu Taal
On Dec. 24, 2021, the report of Gambia’s landmark Truth, Reconciliation and Reparations Commission’s (TRRC) was published, documenting the human rights violations committed during the rule of exiled former president Yahya Jammeh. The TRRC concluded that Jammeh and his henchmen committed crimes against humanity and called for their prosecution. Gambia’s government is now reviewing the TRRC’s recommendations and will publish a white paper by May 25 detailing steps it will take to implement the TRRC Report. In anticipation of this crucial next step, it is worth recalling how The Gambia reached this point and outlining the principal options available to the government as it moves forward in pursuing accountability.
For 22 years, Yahya Jammeh ruled The Gambia with an iron fist and used the state machinery as a weapon of oppression against the citizenry, employing extrajudicial killings, enforced disappearances, sexual violence, torture, and arbitrary arrests. In January 2017, The Gambia entered a new era when President Adama Barrow took office following his victory over Jammeh at the ballot box; the transition sparked an impasse which was resolved only when Gambians mobilized to defend the electoral results and the Economic Community of West African States (ECOWAS) threatened a military intervention. As part of the agreement to peacefully relinquish power, Jammeh was allowed to go into exile. He is now in Equatorial Guinea.
As a first step towards documenting and dealing with the crimes of the 1994-2017 Jammeh regime, the new government instituted the TRRC. One of the TRRC’s tasks was the “identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses.” At the same time, many of Jammeh’s victims began to organize into victim-led organizations to press for justice, supported by a “Jammeh2Justice” coalition including national and international rights groups.
The TRRC’s public hearings, which lasted from January 2019 to May 2021, kept Gambians glued to their radios and televisions. Gambian NGOs published digests of each three-week session. The TRRC heard from 393 witnesses, including former government insiders such as ministers, police and intelligence chiefs, and members of the “Junglers,” a notorious military hit squad that took its orders directly from Jammeh, in addition to experts and numerous victims. Former Junglers recounted how they murdered about 59 West African migrants, allegedly on Jammeh’s orders, while former ministers described how Jammeh orchestrated a vast cover-up to prevent investigators from ECOWAS and Ghana, which lost 44 migrants, from learning the truth. Courageous survivors and former Jammeh employees revealed how Jammeh allegedly raped and sexually assaulted women brought to him. Victims and doctors described how Jammeh personally ran a sham treatment program that forced HIV-positive Gambians to give up their medicine and put themselves under Jammeh’s care. Witnesses spoke of “witch hunts” in which hundreds of people were arbitrarily detained, humiliated, and ostracized. Jammeh’s associates implicated him in the killing and torture of political opponents and the shooting of peaceful demonstrators.
On Nov. 25, 2021, after several delays, the TRRC delivered its final report to President Barrow. His government decided to publish the 16-volume report in full online on Dec. 24, 2021, and hand-delivered hard copies to a number of stakeholders including the umbrella victims’ association. The TRRC found that Jammeh and 69 other named henchmen were responsible for 44 specific crimes, including murder, torture, and sexual violence, and called for their prosecution. For those alleged perpetrators whose acts did not “amount to crimes against humanity,” the TRRC left open the possibility that they could apply for amnesty if they came forward to tell the whole truth and expressed “genuine remorse” for their deeds.
The TRRC ordered reparations of a little over $4 million to named victims, of which it had been able to distribute less than $1 million (from seized Jammeh assets). The remainder will need to come from future government budgets and the sale of Jammeh’s Maryland mansion which was seized by the U.S. government.
In its report, the TRRC also briefly considered how any prosecutions should be carried out. It rejected the idea of a purely domestic tribunal because of deficiencies in Gambia’s legal system, capacity, and infrastructure, and recommended that an “internationalized” tribunal be constituted. Considering “that prosecution of Yahya Jammeh in The Gambia is likely to engender more conflict or polarization of The Gambian people which must be avoided in order for greater reconciliation, unity and cohesion of the various communities in the country,” the TRRC suggested that trials of Jammeh and his co-perpetrators be held outside of The Gambia, without adequately parsing whether the co-perpetrators could be tried at home and Jammeh abroad.
Since 2019, the Gambia Bar Association has independently led a series of multi-stakeholder consultations to examine how to follow up on any prosecution recommendations by the TRRC. These discussions have similarly resulted in a consensus in favor of a “hybrid” court, anchored on a treaty with ECOWAS, with Gambian and international staff, which could help create a legal framework tailored to the prosecution of Jammeh-era crimes and build the capacity of the national justice system. ECOWAS is seen as the appropriate “hybrid” partner because of its leading role in the restoration of democracy in Gambia – including since 2017 helping to consolidate Gambia’s security though deployment of the regional ECOWAS Mission in The Gambia (ECOMIG) force – and in recognition of the fact that many ECOWAS countries lost citizens in the 2005 migrant massacre, including Ghana (some 44), Nigeria (9), and Senegal (3), whose territory was also used as a dumping ground for some of Jammeh’s victims.
Within the hybrid formula, of course, there is still a broad range of possibilities, and the bar association-led discussions so far have focused on two models. The first is a hybrid court within the Gambian court system, established as a division of the High Court of The Gambia, similar to the “Extraordinary African Chambers within the courts of Senegal” (EAC) which prosecuted Hissène Habré. The second option would be a hybrid court operating outside the Gambian court system, more along the lines of the U.N.-backed Special Court for Sierra Leone (SCSL). The former would be more reliant on Gambian elements, provide greater legacy gains for the Gambian judiciary, and certainly cost much less (the EAC cost roughly $10 million, while the SCSL cost over $300 million). The Sierra Leone model, however, would probably be better protected both from collateral legal challenges in the Gambian courts and from a change in political winds. Either model could potentially give victims, who have been at the forefront of the justice struggle, a greater role in trials than they have in Gambia’s common law system. And either model would have to provide for the detention and trial of Jammeh himself outside of The Gambia, in recognition of the widely-shared security concerns highlighted by the TRRC. This would recall the SCSL’s trial of Charles Taylor in The Hague. Given the number of potential defendants, there is also the possibility of bifurcating the process, with prosecutions of the worst alleged offenders before a hybrid court and others before the regular Gambian courts.
The government under Gambian law is now obliged to issue a “white paper” by May 25, 2022 containing its response to the TRRC recommendations. The government is currently engaging with its partners in this process to evaluate and choose a path forward, including determining which of the TRRC recommendations to adopt, and in what forms. In presenting the TRRC report to the public, Minister of Justice Dawda Jallow said that the government was “committed to the implementation of the report.” The government has also secured the technical cooperation of the U.N. Development Programme and the U.S. government in the preparation of the white paper and has created a multi-stakeholder steering committee to follow up on the TRRC recommendations.
Looking down the road, extraditing Jammeh – whether back to The Gambia, or, more likely, to be tried a hybrid tribunal in a third country – from Equatorial Guinea will not be easy. Its autocratic president Teodoro Obiang, famously seen cavorting at a New Year’s Eve party with Jammeh in 2019, has said that he would “protect” Jammeh from prosecution, though Equatorial Guinea’s ratification of the 1984 U.N. Convention against Torture obliges it to either prosecute or extradite alleged torturers who are on its territory. Victims hope that ECOWAS and other countries whose citizens were killed under Jammeh would join The Gambia in seeking Jammeh’s trial, making it more difficult for Equatorial Guinea to refuse.
In addition to accountability proceedings in The Gambia, three alleged Jammeh accomplices have already been detained and are facing trial abroad under the principle of universal jurisdiction: Gambia’s former interior minister, Ousman Sonko, under investigation in Switzerland since 2017, and two former Junglers, Michael Sang Correa, indicted in June 2020 in the United States, and Bai L, indicted in Germany in March 2022. It is quite likely that one or more of these cases will proceed to trial abroad before any post-TRRC prosecutions in The Gambia, creating a further momentum towards justice.
Indeed, after the powerful public testimonies at the TRRC which deeply impacted Gambians, there is strong expectation, both at home and abroad, that the government will deliver justice – including criminal trials – without further delay for victims who have already waited five years, and in some cases much longer. For an increasing number of Gambians, this long-deferred justice must include not only truth, reconciliation, and reparations, as implied by the TRRC’s name, but also criminal prosecutions. A 2021 poll showed that 73 percent of Gambians supported trying the perpetrators of abuses during the Jammeh administration in court. International observers, also influenced by the TRRC – the website JusticeInfo.net ran over 60 articles on what it called “the event of the year 2019 in the field of transitional justice” – echo these calls for prosecutions. The United Nations Working Group on Enforced or Involuntary Disappearances, which has visited The Gambia and followed closely the case of the West African migrants, said that “the process must go beyond truth telling and perpetrators must be brought to justice.” Shortly before taking office in 2021, International Criminal Court (ICC) prosecutor Karim A. A. Khan tweeted his agreement with the TRRC Lead Counsel’s conclusion that “Justice must happen.” Khan’s special advisor Adama Dieng, addressing a Gambia Bar Association public forum in November 2021, was eloquent: “Whether it is in The Gambia, in another African country, before a special court, or at the ICC, justice must happen and justice will happen. Impunity is not an option.”
Any trials before a special court may still be years off, as the court will have to be funded and established, but the movement towards justice in The Gambia has reached a point of no return.
Reed Brody, a member of the International Commission of Jurists, advises Jammeh’s victims and was instrumental in the prosecution of the former Chadian dictator Hissène Habré. Salieu Taal is the President of the Gambia Bar Association