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Statement by Abubacarr M. Tambadou, Attorney General and Minister of Justice at the Donor Conference on The Gambia Brussels 22 May 2018
Overview

Ours was a country where fear ruled over the land for over two decades; where mothers dreaded that midnight knock on their doors which took away their sons and husbands to be seen never again; where civil servants went to work every morning saying goodbye to their families as if it was the last time they would see them ever again because coming back home to them was never a certainty; where judges were summarily dismissed without regard to the law; where in 22 years we have had 11 Chief Justices and 17 Attorneys General; where torture was routine; where women under detention were sexually molested and where sexual assault was used as a weapon to break and subjugate women; where summary executions and targeted murder were an option without consequences; and where ordinary citizens speak of their leaders only in whispers within the four walls of their bedrooms.

Naturally, with Jammeh gone, the public outcry for justice has become louder and more pressing. Families want to know the fate and whereabouts of their disappeared loved ones immediately, more victims have started to share their stories in the local media, and as the Police started to arrest the most prominent and notorious members of the security forces, some perpetrators have started to tell it all. It seemed as if the gates of hell have been flung wide open as detailed revelations begin to emerge about the extent of terrifying abuses meted out to Gambians and foreigners alike by some elements of The Gambia’s security forces.

While the departure of former President Jammeh marked a significant turning point in the political history of The Gambia and was welcomed with great excitement by most Gambians, he left behind a legacy that included many of the factors or root causes of conflict: decades of authoritarian rule characterized by gross human rights violations including torture, enforced disappearance, arbitrary arrests, detention without trial, and murder perpetrated by State agents; a deeply polarized society based on ethnic and political considerations; ethnic hatred manifested through constant and continuous spewing of hateful propaganda targeted at certain ethnic communities; political persecution; impunity for crimes committed under the pretext of national security, and of course poverty.

Consequently, the period immediately following Jammeh’s departure exposed the new Government to its first and most pressing challenge: sustaining the peace in the country amidst a real risk of inter-communal clashes motivated by ethnic and political considerations that had simmered beneath the façade of peaceful co-existence for over two decades. This requires a delicate balancing act at many levels on the part of the new government: there is need to reassure all sides of the ethnic and political divide, especially supporters of former President Jammeh, that there shall be no witch-hunt against any person or communities for the excesses of the previous regime; while at the same time reassuring victims and their families that justice will be dispensed but only through due process of law, respect for the rights of all Gambians, and in a fair, transparent, and stable environment; a balance between, on the one hand, the imperative to foster social cohesion and encourage national reconciliation through justice, and on the other hand, the rebuilding of a strong and robust democratic foundation anchored upon respect for the rule of law and human rights.

The Government, through the Ministry of Justice, has come up with a strategic plan with short, medium and long term goals for sustaining the peace and rebuilding democratic institutions in The Gambia. Over the long term, the Government has resolved to improve the country’s constitutional, legal and institutional framework as well as the quality of its strategies, policies and programs in various governance areas in order to consolidate democracy and align the entire governance architecture with international justice and human rights standards. In that regard, the priority of the government is to put in place a new and resilient architecture to uphold the highest standards when it comes to human rights, justice and rule of law.

This means embarking on an ambitious legal and constitutional reform process focusing primarily on the following five key areas:

  • Constitutional Review
  • Institutional Reform
  • Criminal Justice & Media Law Reform
  • Truth Reconciliation and Reparations
  • Addressing Impunity

Constitutional Review

The 1997 Constitution of The Gambia is the supreme law of the land. All organs and the three main branches of the State: the executive, the judiciary and the legislature, derive their authority from the Constitution. All other laws are subordinate to it and must therefore conform to the letter and spirit of the Constitution. Naturally, the Constitution must be the departure point for any comprehensive law reform.

By some estimates, between 1997 and 2017, the 1997 Constitution of the Republic of The Gambia has been amended at least 52 times and for two principal reasons: (i) to entrench former President Jammeh in power, and (ii) to tighten the political space and deny other players a level playing field.

Consequently, in order to lay the foundation for a new constitutional order through an inclusive and consultative process, a National Stakeholders Conference on Human Rights, Justice and constitutionalism was organized by the Ministry of Justice with 500 participants drawn from a cross section of Gambian society including women’s groups, youth groups, political organizations, professional associations, local and international NGOs, civil society organizations, religious communities etc.

Consequently, in order to lay the foundation for a new constitutional order through an inclusive and consultative process, a National Stakeholders Conference on Human Rights, Justice and constitutionalism was organized by the Ministry of Justice with 500 participants drawn from a cross section of Gambian society including women’s groups, youth groups, political organizations, professional associations, local and international NGOs, civil society organizations, religious communities etc.

The prevailing view was that, among other things, a review by amendments will be too numerous and may not address all issues comprehensively; that there is need to establish clear demarcations between the executive, legislature and judiciary and the provision of appropriate and workable checks and balances between these organs of State; and more importantly, that there is need to restore an absolute majority system and the introduction of two term limits for the presidency.

This culminated in the unanimous enactment by the National Assembly of the Constitutional Review Commission Act 2017 which establishes the Constitutional Review Commission with a mandate to draft a new Constitution based on public consultations with Gambians in and outside The Gambia within a maximum two year period.

We have learnt from our recent experience in The Gambia, that lofty constitutional provisions alone is no guarantee that principles of democracy and good governance will be upheld by State institutions entrusted with safeguarding them. Therefore, a constitutional review process must be complemented by institutional reforms in order to prevent abuse of authority.

The first preventive step is to create strong, independent, and robust State institutions that will act as a check against abuse of government authority and persistent violations of human rights. Abuse of government authority and human rights violations with impunity are usually a symptom of a deeper institutional crisis. Respect for the rule of law and the fundamental rights of the people are a sine qua non to democratic governance. Institutions entrusted with safeguarding these principles must be able to withstand any form of pressure, manipulation or political interference especially by the government.

Consequently, we have identified four State and two non-State institutions as priority areas for reform:

  • Ministry of Justice
  • Judiciary
  • Law enforcement agencies
  • Prisons
  • Civil Society Organizations

Private Media

Our institutional reform process therefore entails a holistic approach that includes the strengthening of existing entities such as the judiciary with constitutional guarantees and security of tenure for judicial officers, the appointment of qualified, motivated and competent personnel with integrity, the creation of new entities such as a national human rights commission and an anti-corruption commission, capacity building across the board particularly for law enforcement agencies and improvements in their conditions of service, and the establishment of oversight bodies with supervisory jurisdiction over the institutions.

In this regard, the government has established, by an Act of the National Assembly last year, and for the first time in the history of The Gambia, an independent National Human Rights Commission in full compliance with the Paris Principles to, among other things, promote and protect human rights. We also now have a draft anti-corruption commission bill ready for enactment before end of year.

Reform and harmonization of all laws in our criminal justice system, and other laws that adversely affect our democratisation process, particularly the right to freedom of expression and assembly, shall be given priority by the government. There shall be a comprehensive review of all existing criminal justice legislation with particular focus on laws intended to stifle freedom of expression and assembly in line with international best practices.

Other reform processes include mainstreaming human rights in the ongoing security sector reform process and training of law enforcement agents including prosecutors on their human rights obligations. Furthermore, the role of non-State actors such as civil society organizations and the private media cannot be overstated. This stems from the realization that impunity occurs when there is a permissive political, social and cultural environment that allows it to take root in society. Impunity only breeds more violations, and when it is allowed to go unchallenged, violations become the norm. The government shall encourage and support capacity building activities on human rights reporting for civil society organisations and the private media.

Truth, Reconciliation and Reparations

The legal framework for the TRRC has been enacted by the National Assembly last year. An Executive Secretary has now been appointed. The main objectives include investigating and establishing the truth about human rights violations and abuses committed during the past 22 years of former president Jammeh’s authoritarian rule, fostering social cohesion and encourage national reconciliation among Gambians, addressing impunity, and recognizing the rights and dignity of victims through the provision of appropriate Reparations. Above all, the overriding objective is to learn appropriate lessons in order to put in place effective mechanisms to prevent recurrence.

Addressing Impunity

Members of the National Intelligence Agency who allegedly participated in the murder of Mr Solo Sandeng, a member of an opposition political party arrested in April 2016 for embarking on a peaceful protest against the previous Government, and allegedly tortured to death. The criminal trial is still ongoing. Some members of “the Junglers”, a unit of the Gambian Army that operated under the direct command of former President Jammeh and who are widely believed to have carried out most of the atrocities in the latter years of his rule, have been arrested and remain in custody. The TRRC will also identify for prosecution those who bear the greatest responsibility for the human rights violations under former President Jammeh’s rule.

Key Aspects of Reform

We are also aware that the process of reform is as important as the results that we seek to achieve from it. Hence, strategies that include empowerment of women and youth, consultations and inclusiveness play an integral part of our reform process so that this approach to governance becomes the new norm in a new Gambia. It is therefore important to highlight some key aspects of our reform process.

Empowering women and girls and giving them access to justice by appointing them to decision-making positions is at the heart of our law reform agenda. This policy is indeed reflected in the judicial appointments since the installation of the new government over a year ago. Out of 12 new judicial appointments to the Superior Courts of The Gambia, 5 of the judges are women. 4 out of the 7 justices of the newly constituted Gambia Court of Appeal are now women. And for the first time in the history of The Gambia, we now have a Gambian female justice of the Supreme Court which is also now fully indigenized.

Moreover, I have now established within my Ministry, a Sexual and Gender Based Violence Unit that will now be responsible for handling all criminal cases of sexual violence and abuse. Members of the Unit will receive specialized training in the investigation and prosecution of sexual violence crimes against women.

Last year, we conducted nationwide consultations on the establishment of the Truth, Reconciliation and Reparations Commission (TRRC). This was borne out of a desire to encourage a new culture of consultative, inclusive and participatory approach to governance by empowering the people to have a say in matters of such national importance in a new Gambia. By giving them ownership of the process, they are more likely to accept the outcome which also engenders greater legitimacy to the TRRC process.

The national consultative committee included representatives from civil society organizations, women’s groups, youth groups, victims’ groups, professional associations, and members of the security services etc, They travelled around the country and held public meetings with all communities. The idea of a truth commission received universal support from political, ethnic and religious communities across the country culminating in the unanimous enactment by the National Assembly of the Truth, Reconciliation and Reparations Commission Act 2017. Also, last year, we hosted a National Conference of Gambian Lawyers. During the two decades rule of the previous regime, numerous Gambians went into forced exile, including many professionals, to avoid persecution by the government. A sizeable number of lawyers left the country to work for reputable international and regional organizations subsequent to former President Jammeh directing verbal and physical abuses and threats against lawyers especially human rights lawyers and threatening them with death.

Therefore, the main objectives of the Conference were to provide a national forum for interaction between Gambian lawyers from the diaspora and those inside the country to support the process of legal and constitutional reforms. The overall goal was to provide a forum for reflection on the past, for teasing out lessons learnt, and for some aspirational thinking on how things could be done differently going forward.

I would like to underscore that in all the activities mentioned above, women and youth participation and representation were a central pillar of the process. State and non-State institutions that are being consulted to participate in all the activities, including the formation of the TRRC and the Constitutional Review Commission, are required to include female and youth representatives as their nominees.

Moreover, there is now continuous engagement and strengthening of partnership with civil society. In this regard, quarterly dialogue sessions are to be held between the Government, through the Ministry of Justice, and civil society organizations in order to maintain channels of communication between the two.

New Gambia

Over the past one year since assuming office in January 2017, and under very challenging political, social and economic environment, the new Government of The Gambia has sustained the peace in the country; established by an Act of the National Assembly a Truth, Reconciliation and Reparations Commission, a National Human Rights Commission, a Constitutional Review Commission; appointed 12 new Gambian superior Court judges including a fully constituted Supreme Court; established a Criminal Case and Detention Review Panel which reviewed a total of 241 criminal cases involving 304 accused persons, discontinued prosecutions in 36 cases involving 86 accused persons on the basis of insufficient evidence; pardoned and released over 200 prisoners across the country including all political prisoners or prisoners of conscience; declared a moratorium on the use of the death penalty as a first step towards abolition; and organized three free, fair and transparent legislative and local government elections under the auspices of the Independent Electoral Commission, in which over 200 candidates contested for 53 seats in the legislative assembly; over 400 candidates contested for 120 local council seats; and 38 candidates contested for 8 mayoral and chairperson seats in municipalities and administrative regions across the country.

We are proud to say that in the new Gambia, the fear of government has all but dissipated. People now freely express themselves without fear of arrest or intimidation. Private radio stations that had never entertained political discussions now host political programs that encourage the general public to phone in and express their views about government policies and programs; and civil society organizations have been allowed the conducive space to operate freely and grow. Reports of arbitrary arrests by security forces have significantly reduced, and there is no more detention without trial, disappearance, State sanctioned murder or indeed torture. All of the measures described here today are concrete steps that demonstrate the commitment of the new Government of The Gambia to rebuilding robust institutions and upholding the highest standards of human rights norms.

Moreover, the recent voluntary return in January 2018 of two former senior officials of the Gambia Armed Forces who had followed former President Jammeh into exile in 2017 is an implicit demonstration of faith in the new administration of justice system in The Gambia. Their voluntary return to the country indicates a degree of confidence that they will receive fair treatment and a fair trial, and further suggests a lack of fear of being tortured or mistreated upon arrest. They have since been taken into custody and are now being tried in a court martial that is open to public scrutiny. The Government of The Gambia is ready and willing to accept visits by the International Committee of the Red Cross to monitor their conditions of detention.

Of course, as in all democracies around the world, we cannot agree on all the issues all the time. We must accept that there will always be differences especially on matters of governance. Our young democracy will surely be tested again and again for that is what will make it resilient. We must therefore regard any setbacks in the course of this rebuilding process not as failure but as an opportunity for lessons learned.

Let us not forget that just over a year ago, there were thousands of fleeing Gambians flocking neighbouring countries to escape a potential outbreak of violent conflict that was both real and imminent. Therefore, peace and stability comes first above all other considerations. However, we are also aware, that true peace, as Martin Luther King said, is not merely the absence of tension, but the presence of justice. And justice of course can mean different things to different victims: some demand retributive justice, while others want restorative justice content with only recognition of their victimhood by acts such as a public apology from their tormentors. The process we are engaged in is therefore aimed at catering for all categories of victims.

Conclusion

What happened in The Gambia is both inspirational and a success story to be shared around the world so that we too can inspire millions of others who yearn for freedom and democracy. Perhaps our story will help keep their hopes alive. But we also cannot afford to be complacent. Removing Jammeh from power, impossible as it seemed at times, is an easier task compared to the challenges that lie ahead in The Gambia, but our choice is clear and undiluted. The road to sustainable peace and democracy will be long and rough but we must persist and persevere. We must be bold and ambitious. Failure is not an option. We must see the new Gambia as a project for laying a solid foundation of democracy anchored upon respect for the rule of law, human rights and constitutional authority.

These are not just lofty ideals for us in The Gambia, they are powerful ideas that carry great meaning for our people; ideas that could have prevented the deaths of school children on 10/11 April 2000, of Basirou Barrow, Dot Faal, Gibril Saye, Koro Ceesay, Corporal Dumbuya, Tabara Samba, Daba Marena, Haruna Jammeh, Marcie Jammeh, Saul Ndow, Mahawa Cham, Deyda Hydara, Mamut Ceesay, Solo Sandeng and the list goes on and on, and the gruesome torture of many more. These ideas can save lives! The new Gambia project is therefore about the kind of legacy this generation of Gambians will bequeath to future generations of Gambians.

A few weeks ago, I visited the Rohingya refugee camps in Bangladesh. Of course our problems in The Gambia pale in comparison with theirs, but my visit provided an opportunity for further reflection and reiterated the indispensable need to ensure durable peace in The Gambia by recognizing and upholding the rights of all Gambians including victims and perpetrators of Jammeh era crimes. In our quest for justice, we must ensure that we do not also create a new class of victims otherwise we risk creating a vicious cycle of victimization that will undermine durable peace in our country. As Robert Jackson stated in his opening statement at the Nuremberg Trial, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well”.

While the factors underpinning many conflicts are gradually diminishing from the Gambian context amidst improvements in the political, social and economic environment since the installation of the new Government, they nevertheless continue to pose a threat to the country’s long term fragile peace and stability. Our transitional justice process is therefore meant to address these challenges and to provide us with a pathway to sustainable peace in The Gambia.

We wish to thank all those who have supported us in this process and allow me to single out the Special Representative of the Secretary General for West Africa and the Sahel, Dr Chambas, the United Nations Peacebuilding Commission and the Peacebuilding Support Office, through the UNDP country office in The Gambia, for providing all the financial resources so far in our transitional justice process. Allow me to add, however that the urgency of starting the TRRC process cannot be over-emphasized. Its centrality to our national reconciliation efforts must not be under-estimated. The victims of abuse continue to live side-by-side with their tormentors in small communities. The long term damage to our fragile multi-ethnic and inter-communal relationships is at a heightened risk if we do not quickly address this underlying social tension. While we recognize that the TRRC process is not the panacea for all our challenges, it nevertheless holds the key to many important doors.

I thank you all for your kind attention!

The Attorney General's Chamber, exists to entrench at the core of the body politic and abiding respect for the Rule of Law and a constant observance of human Rights, to ensure equality of access to Justice and treatment before the Law for all citizens, to promote by law social justice to facilitate the operations of a fair, efficient and transparent legal system and to propagate a culture of due process and legality for these purposes. The Ministry acts as the defender of the constitutional order, the guarantor of the rights and liberties of the citizens, the protector of the state legal interest, the enforcer of the criminal laws, the developer of the human resources of the legal sector and the championing of the rule of law.