Gambia’s choice to prosecute junglers: Int’l lawyers

Former TRRC Lead Counsel, Essa Faal, a renowned member of the International Committee of Jusrists who had successfully prosecuted crimes against humanity Reed Brody and another Gambian legal expert currently on international appointment who wishes not to be named have all agreed that Gambia indeed had an option to prosecute to prosecute using Gambian laws, the junglers like Bora Colley and others within the Gambian jurisdiction as the debate on the establishment of the special hybrid court advances.

Their arguments came in reaction to victims fears that adversely mentioned perpetrators of the crimes against humanity such as enforced disappearances and series of murders in The Gambia may get out-of-jail-free card because the Gambia lacks Crimes Against Humanity (CAH) laws to undertake prosecutions for these crimes.

In commemorating the International Day for the Victims of Enforced Disappearances, the Association of Victim Led Organisations, a post TRRC group of victim associations in The Gambia is worried that jungler Michael Correa – who will be facing trial in Denver, Colorado in the US for torture, and other perpetrators like him technically have a stay-out-of-jail-free card for crimes of murder, enforced disappearances and related crimes because Gambia does not have laws on crimes against humanity.

In a moving statement released last week Friday, the AVLO said: Michael Correa is also alleged to be among those criminally responsible for the enforced disappearances of Daba Marena, Manlafi Corr, Ebou Lowe, Alpha Bah, Alieu Ceesay, Masi Jammeh, Julia Maku, Mamut Ceesay, Ebou Jobe, Sulayman (Saul) Ndow, and Mahawa Cham and he has not been charged with these crimes by the U.S. The U.S. does not have laws to prosecute many other crimes against humanity committed outside of its borders, including enforced disappearances. Incidentally, the Gambia also does not have the laws to try crimes of enforced disappearance.”

The group did not stop there. They asked, “So, does this mean that Michael Correa is going to get away with committing enforced disappearances? The family of his victims certainly hope not, but given the current options, the reality is that this could very well be the case. At the very least, it will take a long time for Correa to face trial for the crimes of enforced disappearances he is alleged to have committed… if there is strong political will from the United States and/or The Gambia.”

Our transitional justice correspondent reached out eminent international justice experts familiar with Gambia’s process to ask these questions on behalf of victims.

Mr Essa Faal, former lead counsel to the TRRC and currently on international appointment at The Hague, home of the International Criminal Court said: “You are right in the sense that The Gambia does not have such laws as we have not domesticated crimes against humanity (CAH). However, when these crimes were committed the enforced disappearance had attained the status of customary international law which therefore applied in Gambia. An internationalized tribunal in or for Gambia can therefore charge these crimes. Such a tribunal would have to be established and specifically given the jurisdiction with retroactive effect. Otherwise he (Correa) could go scot free.”

Even further, Essa Faal said that “a screwed prosecutor could still charge him domestically for crimes that are similar but not the direct equivalent to CAH, eg kidnapping.”

“Yes, the legislation should be able to address that. Examples are abound – the Special Court for Sierra Leone and the International Tribunal for Rwanda and that of former Yugoslavia,” asked if such precedents have been made in prosecuting CAH.

“Sometimes it is even more advantageous for the suspects to be tried through the internationalized system. These include fairer judicial process, lower custodial sentences, better facilities and access to more competent legal services,” Faal said.

For Reed Brody, the charges against Michael Corea in the United States relate only to torture, because the U.S. does not have legislation to prosecute many other crimes against humanity committed outside of its borders.

“In Gambia, Correa could have potentially been prosecuted for a number of statutory crimes such as murder, manslaughter, abduction, assault and the like, even though Gambia’s legislative arsenal does not yet include crimes against humanity and enforced disappearances. Back in 2019 and 2020, however, after Correa was first arrested in Colorado on immigration charges, I and others advocated with both the US and Gambian governments – Ba Tambedou at the time – for his torture prosecution in the United States  because the TRRC was underway, and Gambia was still years away from any trials for the Jammeh-era crimes,” Brody said.

“So, Bora Colley, for example, and other Junglers currently walking free in the streets of The Gambia, could all be tried using domestic laws while the hybrid court debate goes on...”

Another Gambian legal expert on international law appointment outside the country who wishes not to be named public due to sensitive nature of the work agreed that the proposed Hybrid Court address this concern of the victims.

“If that doesn’t work, we can have them (Bora Colley, other junglers) charged under our domestic laws. I’m not sure that’s the best though but it’s better than nothing.

“So, if there’s credible evidence showing those allegedly disappeared are dead, they can be charged with murder. There are many judgments (including from our courts) to the effect that the absence of a dead body doesn’t mean a murder charge would fail,” the lawyer argued.

But while these debate rages about the work of a special hybrid court in Banjul, local avenues in Gambian law books can fill the void if the government is indeed committed to prosecution of perpetrators already in the Gambian jurisdiction.

“A case in point is the Yankuba Touray case. In most tribunals the maximum sentence is usually 35 years in prison. Yankuba received a death sentence from the domestic court,” Essa Faals aid.

So a get-out-of-jail-free card for perpetrators of crimes in Gambia under Jammeh cannot be an option even when the debate around hybrid court continues...?

“Yes, that is right, except if we drop the ball. That can happen intentionally,” Mr Faal said.

He explained that the BarrowGovernment could “keep dillydallying” and be kicking the ball down the road until the end of its term.

“This is in fact more likely as this is a political hot potato,” EssaFaal contents.

That concern is not just of Mr Faal. A lot of observers are not haply with the approach to the trial phase of post TRRC process in Banjul ...”