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Gambia: Will former president Yahya Jammeh (ever) go on trial?

By Marième Soumaré
Posted on Wednesday, 9 June 2021 16:11

Gambia’s former president Yahya Jammeh in Banjul, November 2016. Thierry Gouegnon/REUTERS

After two years of detailed testimony about murder, corruption and crimes against humanity, it is expected that the commission charged with shedding light on the crimes committed by Gambia’s former president Yahya Jammeh will recommend criminal proceedings against him.

Only one survivor remains following one of the Jammeh regime’s most bloody massacres.

Martin Kyere was the only person to escape when nearly 60 West African migrants, who Gambian soldiers mistook for mercenaries, were executed after landing on Banta beach, opposite Banjul. He was just over 20 years old at the time.

15 years later, he returned to Gambia to tell the story of what had happened to him in July 2005. Last March, Kyere came to testify before the Truth, Reconciliation and Reparations Commission.

The structure was set up to investigate crimes committed by former president Yahya Jammeh during his rule from 1994 to 2017. Kyere was one of some 370 witnesses called to appear before the commission, which conducted its hearings over two years. The hearings were broadcast live on radio and television and were widely watched throughout Gambia.

Kyere talked about how he had been beaten up by the soldiers, who suspected him and several dozen other migrants of being mercenaries, as soon as he arrived in the country. “What are you doing here? Are you here for Yahya Jammeh? Do you want to destabilise our country?,” asked the soldiers, before imprisoning the migrants for several days. They then tied them up and took them to a forest to kill them.

While in the car that would lead him to certain death, Kyere realised that his ties had been loosened. He tried, in vain, to free his companions. “As I was about to escape, one of my comrades said to me: ‘God wants to save you so that you can tell the world how and why Yahya Jammeh killed us.” Some made him promise to go and tell their families what had happened to them. “The car was about to stop when they told me, ‘If they find you with your hands untied, they will kill you on the spot.’ So I decided to run for my life,” says Kyere.

Equatorial Guinean protection

The commission’s hearings ended three months after this testimony. Like hundreds of others, it will be used to compile a report that will be delivered directly to President Adama Barrow in July. For all of those following the process, there is no doubt that the commission will recommend the criminal prosecution of several Gambian leaders – and Jammeh will be the first on their list. According to Essa Faal, the commission’s prosecutor, the crimes that the former president committed during his rule constitute crimes against humanity.

Will Jammeh be tried for the system of terror that he built, one that was based on the murder, torture and detention of political opponents, the repression of the press and the weakening of the judiciary? “Those responsible can deny all they want. A man like Hissène Habré was in exile for more than 20 years and still ended up facing justice,” said the prosecutor on 28 May, concluding the commission’s work.

Will Barrow finally ask that his predecessor, who is enjoying a comfortable retirement in Equatorial Guinea, be extradited? Ever since he was forced to leave a post that he had held for more than 20 years, Jammeh has taken up residence there under President Obiang Nguema Mbasogo’s protection. And the latter has clearly stated that he will not hand over the former president. Barrow has said that he would not decide on whether to request Jammeh’s extradition or not until he received the commission’s conclusions.

“Legally, Equatorial Guinea has to comply with a Gambian extradition request,” said Reed Brody, Human Rights Watch’s legal adviser, who pointed out that Malabo has ratified the UN Convention against Torture.

However, human rights activists and Gambian officials alike know that only diplomatic pressure could make Mbasogo give in. But what if this pressure were exerted by several countries in the sub-region, or even by a regional organisation such as Ecowas or the African Union? It could result in the installation of a hybrid court, based on the same model as the Extraordinary African Chambers that tried and sentenced Chad’s former president Habré in 2016. This would be a great way to pool diplomatic efforts to ensure that the extradition request was respected.

Prevent Jammeh’s return to Banjul

This is not the only advantage of this option. It would also make it possible to overcome certain Gambian weaknesses. First of all, legal. “A hybrid court would allow us to have a strong component of Gambian professionals, while using international criminal law to judge those responsible for crimes. Our legal system is inadequate to judge Jammeh,” says Salieu Tall, president of the Gambian Bar Association. Passing judgment on crimes against humanity, or enforced disappearance, are not part of the country’s legal arsenal.

A hybrid court would also prevent Jammeh from returning to Gambia, which Banjul and its neighbours would prefer to avoid for security reasons. The options of a special international tribunal (very costly) or a trial before the International Criminal Court (which has no jurisdiction over crimes committed before 2002, and whose procedures are very long) also seem to have been ruled out.

A hybrid court in Ghana

Which country could host this hybrid court? The country in the sub-region that seems to be the most involved by far is Ghana, which lost several dozen of its nationals during the migrant massacre. Nigeria, which is a regional heavyweight, and Senegal, whose troops removed Jammeh from his palace in January 2017, could also play a role. Informal discussions on this subject have already begun between the Gambian government, Ecowas, Ghana and Nigeria.

Indeed, the commission’s task has been to collect damning evidence against the former head of state. One of the last witnesses, Saikou Jallow, a former personal assistant to Jammeh, stated that the former president had in fact ordered the migrant massacre. Jallow quoted Lieutenant Colonel Solo Bojang, the alleged leader of the operation, who said that “Jammeh gave the order to have them all be executed.”

Presidential election in sight

“The commission has done a remarkable job and revealed an exceptional amount of information,” said Thierry Cruvellier, editor of the information website JusticeInfo.net, who has closely followed the case. “From beginning to end, it was able to bring in people of very high calibre.” In addition to the victims, the commission heard from former ministers, some members of the “junglers” (Jammeh’s secret police), and officials from the NIA, the dreaded intelligence agency.

Finally, it will be up to Barrow to decide on whether to set the wheels of justice in motion. The President will have to make his decision within a particular political context, as Gambia is preparing to hold its first presidential election – without Jammeh – in December. Barrow, who seems to have taken a liking to power, hopes to win this next election.

He may well try to win some votes from within the Alliance Patriotique pour la Réorientation et la Construction (APRC), his predecessor’s political party. But does this mean that he will have to ignore the commission’s recommendations to secure them? If the ruling party needs to align itself with forces from the former regime, then it will undoubtedly be more difficult to prosecute the guilty parties.

But the revelations of the commission, which is led by leading Gambian international criminal justice figures such as former justice minister Abubacarr Tambadou, have raised expectations. “It is difficult to say for the moment what the justice system will do. Everything will depend on the number of cases to be dealt with,” says Hassan Bubacar Jallow, President of the Gambian Supreme Court. “Once the commission’s recommendations are made public, we can start considering the different options available to us.”

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