Gambian victims disappointed with Swiss court ruling on Sonko rape charges

The post-TRRC alliance of victims organisations told The Point this week that although they have not yet made decision to join the case as a party in appealing the decision, they have been concerned about the FCC’s ruling on the rape charges against Mr. Sonko.

“However, a decision is yet to be made officially to take it to the next level,” chairperson of the group Sirra Ndow told our transitional justice correspondent.

In May 2024, Ousman Sonko was found guilty of three murders, multiple acts of torture, illegal deprivations of liberty in conditions amounting to torture, all committed between 2000 and 2016 during the Yahya Jammeh dictatorship. However, the Swiss court failed to hold Ousman Sonko responsible for multiple rapes allegedly committed in the early 2000s and in 2006.

“AVLO was disappointed with the ruling that sexual violence was not systemic and widespread [in The Gambia], and it was just an act by Ousman Sonko alone,” she said.

“Many officials in the (Yahya Jammeh) regime committed these acts knowing they have impunity, because there were no consequences. Sexual violence appeared to have been weaponized to keep the population silent,” Sirra Ndow maintained.

While confirming that rape had indeed taken place, the court ruled that one of the two survivors of rapes could not be considered as part of the civilian population that was under attack and that they were individual acts committed outside the systematic attack against the population. It therefore had no jurisdiction to prosecute them.

Swiss Law Professor Nadja Capus (Faculty of Law, University of Neuchâtel) explains the legal  background, saying that in fact, Swiss prosecutorial authorities and courts were able to assert jurisdiction in the case against Ousman Sonko even though Gambia has not criminalised certain offenses: “The loophole has been closed by the Swiss legislator by introducing article 264m of the Swiss Criminal Code. This provision applies exclusively to the mentioned offenses and enables Switzerland to prosecute them... Clearly an indispensable element to make the concept of universal jurisdiction really works,” explained Nadja Capus.

“If certain offenses are not deemed crimes against humanity, Swiss jurisdiction does not apply. This is why the court in the Sonko case did not recognize jurisdiction for certain rape charges,” Prof. Capus explained further.

This is now subject to challenge in an appeal by affected Gambian plaintiffs and their Swiss lawyers.

In 2017, TRIAL International, a Geneva based anti-impunity NGO filed a complaint with the Office of the Federal Prosecutor in Switzerland against Ousman Sonko, who fled The Gambia in September of the same year to Europe, filing asylum and seeking protection from Yahya Jammeh, after serving 16 years in various high profile capacities as Inspector General of Police, Minister of Interior and other top ranks within the Gambia’s army. He got arrested and placed under custody, leading to investigations into his alleged crimes committed in The Gambia.

“TRIAL International believes that the Federal Criminal Court’s reasoning reflects a lack of understanding of the context of over two decades of repression in The Gambia, particularly with regard to sexual violence. The Yahya Jammeh regime was characterized by widespread gender-based violence enabled by a well-conceived policy of protection, normalization and impunity of high-ranking officials, including Ousman Sonko,” the organisation said on their website on the matter of rape charges.

Its legal advisor in charge of international investigations and litigation Benoit Meystre said: “The Federal Criminal Court considered that the sexual offense charges were the result of an act of an individual that were not linked with the broader context of crimes against humanity and that, for this reason, it was lacking jurisdiction. The charges were hence abandoned,” he explained.

Meanwhile in The Gambia, AVLO is poised to ensuring that perpetrators of all crimes committed under Yahya Jammeh face accountability for them, including those of sexual and gender based in nature.