By Yankuba Jallow
Dawda A. Jallow, Minister of Justice has told lawyers for former intelligence chiefs that it is premature for him to consider any petition for a discontinuance of the prosecution of their clients at this stage.
Jallow was responding to a petition written by counsels for the defendants, who want the criminal case against their clients to be discontinued by the State.
It would be premature on my part to consider any petition for a discontinuance of the prosecution of your clients at this stage,” Jallow wrote.
Former NIA Director General Yankuba Badjie and eight others were arrested in February 2017 and are still in custody undergoing trial. They have been charged with criminal offences in connection with the April 2016 demonstration of some UDP supporters and alleged death in custody of a UDP militant (Solo Sandeng) at the NIA headquarters, and the alleged brutalization of some other members of the UDP.
The Defense team headed by Lawyer Christopher E. Mene and Emmanuel E. Chime, on their behalf and on behalf of other members of their team, wrote a letter dated 12th November 2020, addressed to the Minister of Justice and copied to the TRRC Chairperson Lamin J. Sise and Lead Counsel Essa M. Faal.
The subject of the letter was ‘‘a case to discontinue the ongoing criminal prosecution of former officials of the NIA (now SIS), in order to allow them appear as witnesses at the TRRC, in furtherance of the lofty mandate of the Truth Commission.’’
The letter continued: “We must hasten to make clear that this petition is not intended to and/or ought not to be seen as an attempt to diminish the gravity of the alleged loss of human life in the custody of the NIA or the alleged brutalization of the UDP supporters which is the backdrop to the criminal case before the Court. Indeed, we recognize that the accusations of human rights violations (if true), are condemnable and unacceptable in any civilized society.’’
Similarly, the petitioners indicated that their position should also not be construed to mean that the case of the Defense is weak.
‘‘Indeed, the defense is convinced that the summary of and the evidence led so far, does not disclose most if not all the offences charged,’’ the petitioners wrote.
However, they said the petition has become imperative having regard to the length of time the former NIA officials have been held in prison custody while the trial lasts, and the negative effect of continuing the trial in the face of the mandate of the TRRC, to elicit the truth and promote reconciliation in the New Gambia.
The TRRC was created by an Act of the National Assembly. The overriding objective of its setting up is evinced in the combined reading of the long title of the Act as well as the definition of “human rights violations and abuses” and “victims” in Section 2 of the Act, together with Section 13 and 14 of the Act which deals with the objectives and functions of the TRRC, in order of priority to first elicit the truth about all the horrendous human rights violations that occurred between July 1994 to January 2017 without any exception and second, to promote and encourage national reconciliation.
The petitioners indicate in their letter that these two are very significant and in their humble view, they come before reparation because it is a recognition that only when the truth is known, that appropriate steps can be taken to ensure that the human rights violations of the past are not repeated in the present or future.
They stressed that the TRRC Act emphasizes the need for national reconciliation as a tool for social harmony, unity and progress as we recover from the violations of the past regime.
‘‘The criminal prosecution of these former NIA officials who were all agents of the State and acted in their official capacities in relation to matters for which they stand charged before the Court, is inconsistent with and contrary to the letter and spirit of the TRRC Act,’’ the Defence lawyers wrote in their petition.
The former NIA officials were arrested and detained since February 2017 to date.
And according to the Lawyers, their clients have suffered personal losses and misfortune as a result of their continuous incarceration.
Yankuba Badjie, the former Director-General of NIA is a family man and sole breadwinner of his family. He lost both of his parents within a short interval while in prison.
“Their demise was not unconnected with the trauma both parents experienced as a result of the imprisonment of their son and breadwinner for so long,” the petitioners wrote.
On the health side, the petitioners said Badjie is also hypertensive and had been admitted to Hospital for an extended period of time. In addition, they said he has been placed on daily medication which has barely kept him alive until now. The Defence lawyers said the second accused person Louie Richard Leese Gomez, was not so lucky because he died in prison during this trial.
“The overwhelming sentiment is that he died because of his pre-existing medical condition which was compounded by his solitary confinement, resulting in his premature demise, leaving behind his young wife and several children, without a breadwinner,” the Lawyers wrote.
Sheikh Omar Jeng, the 3rd accused person according to the Defence lawyers, lost his father while in custody and did not have the chance to even bury him.
“The 3rd accused person also has a very serious heart condition which the State is aware of. It is nothing short of a miracle that he is still alive today,” the petitioners wrote.
The Defence lawyers also stated that the 8th accused person, Lamin Darboe, had a very serious and devastating accident while carrying out electrical maintenance works in the Mile 2 prisons, which resulted in him being bedridden with two broken legs; that Darboe cannot attend Court sittings at the time of writing their letter. The petitioners said all accused persons are Gambians and breadwinners of their respective families.
The long-standing case has suffered series of delay. The High Court granted a stay of proceeding in favour of the prosecution in November 2019 and for almost a year, the case was stalled. On the 8th of October 2020, the Court reversed the stay order by the High Court and ordered for the matter to continue. The prosecution has however appealed against the decision of the Court of Appeal to the Supreme Court. This means if the prosecution succeeds at the Supreme Court, the case would be further delayed while the accused persons remain in custody.
The prosecution team called thirty-three witnesses who testified after which the prosecution closed their case.
So far for the Defense Lawyers, Sheikh Omar Jeng is the only one who testified in defense of this case. Baboucar Sallah, the 4th accused person is expected to open his defense on Monday 15th of February 2021.
Yankuba Badjie wants to make a “no case submission” but the Judge refused his plea to move his motion. Badjie is seeking the Court of Appeal to direct and order the High Court, to allow him to make the “no case submission” known as “a no case to answer submission” by many.
The petitioners also raised the issue of discrimination by the State stating they are being tried and held in prison for four years when the TRRC is carrying out its legal mandate with witnesses some of whom had admitted to participating in horrendous human rights violations, including multiple killing of fellow citizens, before the Truth Commission, to give their testimony. The petitioners maintained that they were thereafter thanked for their testimonies and allowed to go home to their families.
“In these circumstance therefore, the feelings of the former NIA officials that they are being discriminated against by the State and/or treated differently from the others they served with in the security sector under the former regime, is understandable,” the petitioners wrote.
The petitioners said all the former NIA officials were public servants who served the State under the former regime, as State Agents and that they love their country no less than any other Gambian.
“Discriminating against them or treating them differently cannot be good for national reconciliation,” the petitioners wrote.
The Defence lawyers urged the Attorney General and Minister of Justice to consider discontinuing the ongoing criminal prosecution of these persons so that they can avail themselves of the opportunity to also appear before the TRRC, to give their testimony just like all other players in the Security sector, from 1994 to January 2017.
“Having regard to the prominent role the NIA played regarding internal security matters under the former regime, we are convinced that the work of the TRRC cannot be complete without their testimonies,” the petitioners conclude.
In his response, the Attorney General and Minister of Justice in a letter dated 5th January 2021, said the TRRC was established to create an impartial historical record of violations and abuses of human rights from July 1994 to January 2017; to promote healing and reconciliation and address impunity, and to grant reparations to victims amongst others.
Minister Jallow said a very important function and power of the TRRC is to identify and recommend for prosecution, persons who bear the greatest responsibility for human rights violations and abuses. He held that this can only be done at the conclusion of the public hearings and submission of a report by the TRRC. He mentioned that those who appeared, testified and admitted to the Commission of crimes they have committed have not been exonerated or granted relief from prosecutions.
However, Minister Jallow said by virtue of the TRRC Act, a person who makes full disclosure of his or her involvement in human rights violations and expresses remorse for their acts or conducts could be considered for amnesty where an application is made to that effect.
“The TRRC process is designed in such a manner that those who appear before it and fully cooperate by making full disclosure, could be granted amnesty. Certainly, not all those involved in the commission of crimes could possibly be prosecuted,” the Minister said.
Jallow said prosecuting everyone will undermine the spirit of healing and reconciliation by sending tremors on the very fabric of the society; that this is why a mechanism has been established to cater for all honesty and full disclosure.
“This is an opportunity accorded to all Gambians,” Jallow said.
The Attorney General said the NIA officials in custody could still avail themselves the opportunity for public testimony before the TRRC, since they may possess vital information that can assist in the accurate documentation of abuses and violations that took place in The Gambia; that a transitional justice process involves the application of a variety of mechanisms to ensure accountability, justice and reconciliation, which includes truth-telling, prosecutions, reparations and memorialization as well as healing and reconciliation among others.
‘‘It is never a situation that any one of these mechanisms should be pursued to the exclusion of others. In other words, these are always mutually reinforcing variables in a transitional justice process” Jallow said.
Minister Jallow said it remains always the prerogative of the State to determine the application and sequencing of these variables, adding that the State is always confronted with the difficult task of balancing the demands for justice, with pursuing the objects of healing and reconciliation.
He maintained that international best practice has demonstrated that justice and accountability are important factors for the ultimate objective of peace and reconciliation.
“In light of the foregoing, you may wish to advise your clients to explore the possibility of cooperation with the Truth Commission by initiating direct contact with its secretariat,” Jallow wrote.