May 5, 2017, 10:21 AM
question is best answered in the following legal interpretation at both the
international and domestic level. As far as the commission of alleged crimes
under the 22 year regime of Jammeh and his team is concerned, there is no room
for speculation or gossip.
The Rome Statute, that established the International Criminal Court (ICC) based in The Hague, contains Article 5. Therein are outlined Crimes within the Jurisdiction of the said Court and it read as follows; “Jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. That the court has jurisdiction with respect to the following; the crime of genocide, Crimes against humanity, War crimes and the crime of aggression.”
The focus here is on the Crimes against humanity as per Article 7 (1) (a-k) of the cited ICC Statute. (a) relates to the offence of murder, (f) on the offence of torture (i) on Enforced disappearance of Persons, (k) provided for other inhuman acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health
Article 7(1)(a) of the cited ICC Statutes prohibited murder, which is also prohibited under section 18 of the 1997 Constitution of The Gambia, except on exercise of lawful order. Murder further provided under section 187 of Criminal Code, Laws of The Gambia is punishable with death under section 188 therein.
Whereas Article 3 of the Universal Declaration of Human Rights provided for the right to life, liberty and security of persons. Article 5 therein prohibited torture and other forms of cruel and degrading treatment.
Interpretation of Torture
Article 7(2) of ICC Statutes interpreted torture as intentional infliction of severe pain or suffering, whether physical or mental, upon a person in custody or under the control of the accuser. This must be balanced against allegations of torture made by a series of people over the years. Such persons were not limited to Imam Baba Leigh, who was recently quoted describing one of the darkest times he went through in the hands of alleged torturers while in state custody under Jammeh’s regime
Musa Saidykhan, former editor of the defunct Independent Newspaper also alleged serious torture visited on him while in state custody, which inspired his legal suit at the ECOWAS Community Court. The judgment was delivered in his favour, but Jammeh and his team did not respect it, despite The Gambia being signatory to statutes and a member of ECOWAS
Other torture allegations came from opposition United Democratic Party female supporters such as Fatoumata Jawara, now Member of National Assembly for Talinding. Ngois Njie was among others arrested in connection with the 14th April 2016, electoral reform protest, staged under the coordination of late Ebrima Solo Sanden, who was also allegedly tortured to death while in state custody
Torture is also condemned by other legal instruments such as the African Commission on Human and Peoples Rights Resolution for the prohibition and prevention of torture, cruel, inhuman or degrading treatment or punishment in Africa otherwise called ‘’The Robben Island Guidelines’’.
Part 1(C)- of the guidelines criminalize the offence of torture and it reads; ‘States should ensure that acts which falls within the definition of torture based on Article 1 of UN Convention Against Torture, are offences within their national legal systems.’ This begs the question as to whether was criminality took place in The Gambia under the 22 years of the Jammeh regime as outlined in the cited legal instruments
Articles 6, 5-20 of the African Charter on Human and Peoples Rights otherwise called ‘The Banjul Charter’’ entered into force on 21st October 1986, also gave detailed protected fundamental rights freedoms, including the right to life, liberty, personal security and human dignity free from the offence of torture and other inhuman, cruel and degrading treatments.
Section 21 of 1997 Constitution of The Gambia, prohibits torture and other cruel inhuman, degrading treatment and punishments
Still on Crimes Against Humanity in the Rome Statute Article 7(2) (i) on Enforced Disappearance of persons means, the arrest, detention or abduction of persons by or with the authorization, support or acquiescence of a state or political organization, followed by refusal to acknowledge that deprivation of freedom or to give information on the fate or where-about of those persons, with the intention of removing them from the protection of the law for a prolonged period of time
The case of Chief Ebrima Manneh, a journalist working for the Daily Observer Newspaper, Editor and State House Correspondent at the time, went missing following his arrest and detention in 2006. His whereabouts, following his abduction from his place of work, have yet to be established.
The former Kiang East National Assembly Member Mahawa Cham and one Saul Ndow are alledged to have been abducted from the sister republic of Senegal and allegedly handed over to the Jammeh regime’s security agents in 2013. Their whereabouts is also yet to be established
Abduction runs contrary to 1969 Vienna Convention of the Law of Treaty as it not only constitutes an offence under international law, but also greatly undermines state sovereignty and territorial independence of the victim states.
Nothing prevents states from entering into treaties on such matters such as the return of fugitives from the law and others considered necessary for the interest and welfare of states party to such treaties on various matters. This is in line with Article 38 of Statutes of International Court of Justice (ICJ), which provides for sources of international law, including treaties as one of the most important sources of seeking justice.
Section 19 of the 1997 Constitution provided for the right to personal security and liberty that no one shall be subject to arbitrary arrest, detention, deprived of his/her liberty except on such grounds and in accordance with such procedures as established by law. Subsection three therein stated that, any person arrested or detained (a) for the purpose of bringing him/her before the court in execution of the order of court or (b) upon reasonable suspicion of his/her having committed or being about to commit a criminal offence under the laws of The Gambia and who is not released, shall be brought without undue delay before a court and in any event, within 72 hours. Subsection 6 therein reads; any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.
The above interpretations must be contrasted with allegations of arrest and prolonged detention without trial, often leading to allegations of disappearance during the Jammeh regime.
Other victims of alleged disappearance; Momodou Lamin Kanyi, alias Kangiba Kanyi, has been missing for decades now after been allegedly arrested at his house by state agents under the Jammeh regime. Haruna Jammeh, Masireh Jammeh and Jasaja Kujabi, are all alleged to have been arrested, detained and are yet to be accounted for by the Jammeh regime, thus the question mark as outlined
However, Deyda Hydara, proprietor and managing editor of The Point Newspaper, was allegedly gunned down while driving home from celebrating the said medium’s anniversary. His murderers’ have yet to be brought to justice despite allegations of the involvement of state security agents. Such instances led to widespread global condemnation of the Jammeh regime.
Presumption Of Innocence
However, Jammeh and his regime have the right to what the legal pundits call, ‘’Right to presumption of innocence until the contrary is proved’’ as contained in Article 11 of the International Bill of Rights otherwise called Universal Declaration of Human Rights, adopted by the United Nations resolution on 10th December 1948.
This Article 11 (1) reads; Anyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he/he has had all the guarantees necessary for his defence. (2) said no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed
Article 10 of the cited UN Human Rights Declaration provided for fair and public hearing by an independent and impartial tribunal for accused persons
Article 26 of the Banjul Charter also called “African Charter on Human and Peoples Rights guarantees the independence of courts and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the cited charter. This is also detailed in the African Commission on Human and Peoples Rights Principles and guidelines on the right to fair trial and legal assistance in Africa
Section 24 of 1997 Constitution (1) (a-b), (2-3) (a-e), also made similar right of innocence and presumption for those accused of committing criminal offence. Subsection one therein reads; any court or other adjudicating authority established by law for determination of any criminal trial or matter or for the determination of the existence or extent of any civil right or obligation, shall be independent and impartial
Section 18(1-5) of Evidence Act, 1994, Laws of The Gambia further provided the right of innocence and presumption of such until the contrary is proven
Article 66(1-3) of The Rome Statute that established the International Criminal Court (ICC) also provided for such a presumption and it reads as follows; Everyone shall be presumed innocent until proved guilty before the court in accordance with the applicable law and that, the onus is on the prosecution to prove the guilt of the accused
Article 67(1) (a-i) of the said Rome Statute provided for the rights of the accused person. It reads as follows; in determination of any charge, the accused shall be entitled to public hearing, having regards to provisions of this statute to a fair hearing conducted impartially in line with the cited paragraphs
Evidence for Trial
It’s obvious for any criminal or civil proceeding to have enough evidence for the sustenance of the case before the court and this is captured in various legal instruments including the Rome Statute in Article 69(1-8). It reads; Before testifying, each witness shall, in accordance with the rules of procedure and evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness
Article 69 (3) outlined submission of evidence relevant to the case, whereas (4) gave relevance and admissibility of evidence inter alia the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of a testimony of the witness in accordance with Rules of Procedure and Evidence
Similar provisions were made in section 3(1-2) of Evidence Act, Laws of The Gambia on relevant facts in a case that are admissible and not admissible. Such evidence will greatly depend on available cases of alleged murder, disappearance without trace, torture made by various persons, their families, friends or associates alleged to have taken place over the course of the 22 years that Jammeh and his team ruled.
Surrender of Accused Persons
Article 89 (1-3) (a-e) (4) of The Rome Statute outlined procedures for the surrender of accused persons to stand trial before the said court. Article 89 (1) therein reads; The Court may transmit a request for the arrest and surrender of a person together with the material supporting the request as outlined in Article 91 of the statute to any state on the territory of which that person may be found and shall request the cooperation of that state in the arrest and surrender of such a person
Article 27(1-2) of the statute provided for Irrelevance of Official Capacity; that is, it did not recognize official capacity either being a head of state or diplomat or government officials. These are not a bar to the jurisdiction of the court to those wanted for such crimes as outlined in the jurisdiction of the court on criminal offence therein
Should The Complementary Role Of ICC Be Invoked?
There exists in the world of International Criminal Law, what we called ‘Complementary jurisdiction of the International Criminal Court (ICC), which is inspired by the need to end impunity, especially where national or domestic courts lack the capacity or the will to prosecute such crimes listed under the jurisdiction of the cited court
This dictates that, the ICC is competent to invest in and try such cases, unless there is another state that claims jurisdiction over the case. This theory holds that, states continue to play an important role and that the ICC will only come in when the state has failed or finds it impossible to assume that role. It can also intervene if the state shows disinterest or bad faith. It operates on the bases of where there is no prospect of international criminals being duly tried in national or domestic courts
By Sanna Jawara, LLB, Chief Executive Officer -