Mr. Joseph Hendry Joof, former Attorney General and Minister of Justice, on Monday told the ongoing Truth Commission, that he initiated a bill for the introduction of secular in the Constitution for the interest of all Gambians as extremism was creeping in the country.
He appeared before the TRRC in connection to his work with the Commission that Investigated the April 10/11 Students Massacred,the bill he tabled at the National Assembly in connection to the amendment of the indemnity, Judicial Interference by the Executive and a lot more.
Born in Banjul on the 25th October, 1960, he did BA Honourous in law and Economist from a London University and was called to the Bar of England and Wales in United Kingdom.
He later returned back to The Gambia and was appointed as State Counsel at the AG Chambers in 1986/87.
According to him, while working at the AG Chambers as State Counsel, he was assigned to the Prosecutions Unit helping the Chief Prosecutor in pursuing cases for the government, but was later moved to the Civil Division.
The witness testified the Office of the Director of Public Prosecutions (DPP) was independent while he was serving as State Counsel.
According to the witness after the Coup in 1994, there were lots of arrests and unlawful detentions of citizens and they spoke to government about them.
He said he cannot give specific cases on which the Jawara government descended on the bar, adding that the case of one Sanna Manneh was a bit difficult.
Dwelling on the Military regime, he said the Bar did want Military rule in The Gambia.
Mr. Joof said witnesses before the Commission might be right when they said decisions from the Judiciary were not respected by the Executive.
The former Bar Association President recalled that in 2000, he was appointed as member of the Commission of Enquiry alongside Justice Laty and Imam Jah by the former president.
He said their work at the Commission was emotional as they dealt with cases involving children, who were killed and injured.
During the course of the investigations, they were allowed to do their job as expected as the Commission was opened to the public and witnesses were called to appear.
On whether there was interference on their work, he said he did not think so; adding that the Chief Justice would not allowed such as he was from the Republic of Ghana.
“We did not get to know all those who know the details and you must left someone out.”
At this juncture, Counsel Mariama Singhateh told her that the TRRC received testimonies that some relevant witnesses were left out, but the witness said those people should have come out and testify. “They should have come forward and volunteer,” said the witness.
However, Counsel asked whether it was not their responsibility to subpoena the relevant witnesses to come forward, but the witness in response said those people should have come forward or even give a statement in writing.
“Mr. Witness you will agree with me that it is easy for a Victim to appear and narrate his/her ordeal than a Perpetrator to come forward?” quizzed Counsel.
“I agree,” he responded. He added that may be some of them were afraid to come forward as Yahya Jammeh was still the president.
However, Singhateh asked whether it was fear or a cover-up, Joof in response said he did not know who would cover up; adding that children were the principal witnesses as they were the people that spotted the perpetrators.
She asked: “Did the Commission bother to find out who gave the order for the students to be shot?”
The witness said in their report, they held that the president was responsible for the shootings and whoever was present at the time was out of the country.
However, Counsel put it to him that there was nowhere in the report where it was said that the President gave the Command, Joof responded that witnesses before that Commission said the Command was from above and they as Commissioners concluded that it was from former president Yahya Jammeh.
The witness said they were interested in evidence and the students pinpointed those that were responsible. However, he said that was not sufficient to establish a Criminal or Civil liability unless it was based on political motives.
He said: “We were interested, if we fix liability, it will constitute a criminal liability either from the Police or other Security apparatus.” He said the Commission for certain did not know where the orders were coming from, adding they were not sure that the orders came from the president, “but mostly they will say from ‘above’.”
He said they would have held Jammeh liable if a particular person they believed came out and admitted that Yahya Jammeh ordered for the shooting. “We were interested in the truth, overwhelmingly if the evidence was hooking the individual and not only based on rumours.
The evidence we had at the time was not sufficient to pinpoint anyone to be responsible,” said the former AG.
He said they concluded that Security Personnel deployed on the ground on the day of the demonstrations fired life ammunition to the student.
He said they recommend for Victims’ Families to be compensated while those responsible for the shootings to be prosecuted. The Executive accepted the report, but they were not happy with the Commission findings such as Prosecuting Perpetrators and also providing compensations, he said.
After the Commission of Inquiry, he continued with his private practice but was subsequently appointed as Attorney General and Minister of Justice in 2001.
On whether he advised the president on the findings of the Commission, he said Jammeh did not seek for his advice on that, but rather they came up with a Cabinet Paper. He said as Minister, he prepared a Cabinet Paper for the children to be compensated and this was supported by Ministers, but the president refused. He added: “We tried to convince him but the president was adamant, Finance was willing to pay, but the President was the ‘Finance’ because they would not take any money without his orders.”
He said the action of the President was wrong and uncalled-for. He added that it was the responsibility of the State to compensate the victims as they were those that gave orders to soldiers to shoot students.
The president in essence was refusing to admit liability on what happened on April 10/11, 2000, he noted.
“Did you make this opinion known to the President?” Counsel inquired. “He knew what I was doing at the African Center and the African Bar.”
The former Principal Government Legal Advicer testified that he did not further advise the President that refusing to compensate the victims was against the human rights principles. He said this is because he had done enough and did not have to keep doing it as it was not the spirit in Cabinet.
However, he recollected that some victims were taken for overseas treatment while some were compensated in a half hazard way as some did not get it at all. He added that the government did not do much.
On the recommendation for Prosecutions, the government relied on national security because that would have demoralized the Security Services, he testified.
At this juncture, Counsel asked him what his advice was on this issue, he said he advised that the recommendations were sound enough and that those responsible should be prosecuted and as a result of that couple with other things, he resigned.
However, Singhateh told him that he tabled before the National Assembly the amendment on the Indemnity Act passed in 1981 and there was a lot of outcry by Civil Society.
As Minister of Justice and National Assembly matters, his role was to complement the Attorney General who was the Chief Legal Advicer to government.
Mr. Joof denied that the amendment of the Indemnity Act was limited to the Students Massacred on April 10, but instead it was a general amendment dealing with emergency issues amongst others.
Counsel Sighateh said former President Yahya Jammeh neither compensated nor allowed the Prosecutions for security personnel found wanting.
However, the bill he presented before the National Assembly then indemnified government and its agents thereby making it difficult for people to go to court and seek redress.
At this juncture, Joof said the Indemnity Act was retroactive in nature and Singhateh put it to him that this was what made him responsible as students cannot sue the state neither could the government and its agents be prosecuted.
The witness said he wouldn’t agree to that. However, Counsel Singhateh told her that it was a massive cover-up, but Joof maintained that the Police cannot be held based on civil liability.
The witness, who is also a lawyer by profession, argued that a State of Public Emergency must be declared before the Indemnity could become efective. However, Singhateh told him that he was just arguing in order to extricate himself from responsibility.
Mr. Joof testified that as per Section 226 of the Constitution, any Act which is amended should clearly states that it is an amending Act which was not the case in this matter. He therefore said he was not responsible for the amendments on the Indemnity Act as he was not the Minister in 1982.
After reading the Act, Counsel put it to the witness that it was quite clear that the intention was to Cover-up the April 10/11 incident, as it was the tool which the government used to protect its officers from prosecutions.
She asked: “Was anyone prosecuted after April 10/11 incident?” “I don’t know,” Joof answered.
Joof maintained that a State of Public Emergency was not declared and therefore it did not extricate the officers from Prosecutions. ” So they could have been prosecuted,” he added.
He added that it was the court which should have determined whether the Assembly or gathering by the students was unlawful.
Sighateh added that what is astonishing is that this draconian law can still be used by the government, but the witness said it was not his responsibility.
However, in a Daily Observer Publication, the Editorial asked whether the amendment of the Indemnity was Validly done, as Sidia Jatta and Hamat Bah walked out of Parliament making it not to have the majority of numbers needed to make it validly enacted.
The Commission which did the Investigations on the shootings of the students in which he (Joof) served declared the demonstration as unlawful. Notwithstanding, the findings of the commission cannot be binding as it has to be interpreted by the Judiciary.
On the issue of including Secular in the Constitution, the witness said it was correct that he initiated that while serving as Minister as issues of extremism and intolerance was becoming rampant in the country. He said it was therefore included for the interest of all Gambians.
At this juncture, Counsel told him that as at the time of the amendment, it was an entrenched clause but Joof said it was not an entrenched clause.
He argued that Republican Status is different from Sovereignty. However, Counsel Signhateh said the Supreme Court which has the mandate to validate the validity of a particular law, ruled that the amendment was void.
Signhateh said te 1997 Constitution did not have the word “Secular” but he as Minister of Justice at the time, amended an entrenched clause which the Supreme Court declared void.
Mr. Joof said he tabled a bill before the National Assembly for amendment, but never passed it because it was only the Members of Parliament who passed it and the President ascended to it for it to become an Act or a law.
Several other amendments were introduced by the witness which was Act No. 6 of 2001, Giving Powers to President to appoint Chiefs and Alkalos. He said this idea was to make sure that every Gambian should be entitled to be a chief and should not necessarily mean one has to come from a particular family to become such.
In total according to Counsel, the witness made 30 amendments such as the review of dual Citizenship, The Different Able Person, Nominations of the National Assembly Members by the President amongst others.