This
question is best answered in the following legal interpretation at both
international and domestic level, as far as commission of the alleged crimes
under 22 year regime of Jammeh and his team are concerned, hence no room for
speculation and gossiping.
The Rome
Statute that established the International Criminal Court (ICC) based in the
Hague, Article 5 therein 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 and punishable with
death under section 188 therein
Whereas
Article 3 of the Universal Declaration of Human Rights provided for right to
life, liberty and security of persons. Article 5 therein prohibited torture and
other forms of cruel degrading treatments.
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 accused. This must be balance against allegations of torture
made by series of people over the years and such persons were not limited Imam
Baba Leigh, who was recently quoted narrating what he described as 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 met on him while in state custody, which inspired his legal
suit at the Ecowas Community Court and judgment delivered in his favour, but
Jammeh and his team did not respect the said judgment, despite the Gambia being
signatory and 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 among others arrested in connection with 14th
April 2016, Electoral Reform protest they 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 African Commission on Human and
Peoples Rights Resolution for 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 guideline 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 criminalise in the Gambia
under the 22 years of 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 forced 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
Enforced disappearance
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, Journalist working for the Daily
Observer Newspaper, Editor and State House Correspondent at the time went
missing since his arrest and detention in 2006, from his work place at the said
newspaper by state agents of the Jammeh regime and nothing is still heard about
him or his where-about is yet to be established
The case of former Kiang East National Assembly Member
Mahawa Cham and one Saul Ndow on allegation of their abduction from the sister
republic of Senegal and alleged handed over to Jammeh regime security agents in
2013 and their where-about is also yet to be established
Abduction runs contrary to 1969
Vienna Convention of
the Law of Treaty as it did not only constituted an offence under international
law, but also greatly undermines the state sovereignty and territorial
independence of the victim states.
Nothing
prevent states from entering into treaty on such matters as return of fugitives
of law among others considered necessary for the interest and welfare of the
state parties to such treaties on various subject matters, in line with Article 38 of Statutes of International Court of Justice
(ICJ), which provided for sources of international law, including treaty as
one of the most important sources therein
Section 19 of 1997 Constitution provided for right 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 seventy two hours. Subsection 6 therein reads; any person who is
unlawfully arrested or detained by any other person shall be entiled 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 arrested and prolonged detentions without trial, that often led
to allegations of disappearances of such persons without trace to date as
illustrated in the cited names yet to be accounted for by the Jammeh regime
Other
victims of alleged disappearance without trace were not limited to the
following; Momodou Lamin Kanyi alias Kangiba Kanyi is another person who went
missing for decades now after been allegedly arrested from his house by state
agents under Jammeh regime and nothing is heard about him to date. Haruna
Jammeh, Masireh Jammeh, Jasaja Kujabi, among others are all alleged to have
been arrested, detained and 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 to death while driving home from
celebrating the said medium’s anniversary. Circumstances of dead is yet to be
established, despite allegations of state security agents involvement, but
nothing comes out, hence the global condemnation of the action exhibited by
Jammeh regime.
Presumption Of Innocence
However,
Jammeh and his co has what the legal pundits called ‘’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 1048
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/
she 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 imission 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 guarantee 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. 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 extence 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 innocent and presumption until the contrary is proven
Article 66(1-3) of The Rome Statute that established the International
Criminal Court (ICC) also provided for such 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
Its obvious
for any criminal or civil proceeding to have enough evidence for 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 the case that are admissible and not admissible and such evidence
will greatly depend on available cases of alleged murder, disappearance without
trace, torture among others made various persons, their families, friends or
associates over the course of 22 years under Jammeh and his team under review
Surrender
Of Accused Persons
Article 89 (1-3)(a-e)(4) of The Rome Statute outlined
procedures for 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 as well as 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
complementary Role Of ICC Be Invoked?
There
existed 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 lacks the capacity or the will to prosecute such crimes listed under the
jurisdiction of the cited court
This dictates
among others that, the ICC would be competent to invest and try such cases,
unless there is another state that claim jurisdiction over the case. This
theory holds that, states continue to play important role and ICC would only
come in when the state failed or find it impossible to assume that role or show
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, Chief Executive
Officer-The Advocate
