I understand the Barrow government’s preference to deal with the atrocities committed by the Jammeh regime through a Truth and Reconciliation Commission (“TRC”) mechanism, rather than engage in piecemeal prosecution of individual criminals. The TRC would require fewer resources; and depending on its terms of reference, it could be very effective.
But is a TRC the way to go in the current Gambian dispensation? Does the government’s desire for reconciliation trump crime victims’ and society’s right to demand that criminals be punished? In the Gambian context, is there truly a risk that the society will disintegrate once the government starts punishing certain criminals through the regular courts?
In my humble opinion, the government needs to take these factors into consideration and convincingly address the citizens, especially the victims, before going the TRC route. I respectfully urge our government to make a strong case to the Gambian people if it wants to go against international norms as articulated under the Rome Statute, and advocate for the non-prosecution of certain crimes (such as the massacre of our children on April 10 and 11, 2000). Yes, it could be argued that TRCs were effectively used in South Africa and elsewhere. But those countries had unique circumstances that invited the use of TRCs. If you have a legal system that is in tatters (due to war for example or a repugnant system like Apartheid), it makes sense to bypass the courts and set up commissions to handle certain crimes or to prioritize reconciliation over prosecution.
In The Gambia, the government needs to explain to the victims why it makes sense to not prosecute people who ordered the massacre of innocent and defenseless children. And not have senior government officials wine and dine with the criminals. How does it help assuage the victims and the larger society if criminals are celebrated in our society or given a mere slap on the wrist for murdering defenseless children? Ordinary citizens deserve an explanation from the government if it wants to lower the bar and absolve murderers simply because they appear before a commission of inquiry. I, for one, will not want to be a proud member of a society that condones mass murder. And I have not heard a single victim of the Jammeh regime indicate a willingness to reconcile with criminals who have not been punished for their crimes.
If the government is concerned about being accused of engaging in selective prosecution in order to settle political scores, then the April 10 and 11, 2000 Massacre is a perfect case to bring before the courts. Judging by the names of the deceased victims, it appears the victims came from a cross-section of the society. Baboucarr Badjie, Wuyeh Fode Mansally, Momodou Lamin Njie, Calisco Prera, Karamo Barrow, Reginald Carrol, Omar Barrow, Momodou Lamin Chune, Lamin Bojang, Ousman Sabally, et al., represent all tribes, religions, and economic backgrounds. Even the most biased observers cannot claim that it is unfair to prosecute the perpetrators of the April 10 and 11, 2000 Massacre.
When crime victims and society at large demand justice, they are not only seeking acknowledgement and monetary compensation from the state; they are also asking that the perpetrators be held accountable and punished. As I keep saying – and will not be tired of repeating – civilized societies must never allow certain heinous crimes to go unpunished; not in the name of national reconciliation, nor out of a false hope that treating criminals with mercy somehow deters crime. The culture of impunity must be eradicated in our society.
If the government wants to argue that rendering murderers scot-free would help national reconciliation and give us a more cohesive society, some of us have to push back on such a notion. While I recognize that we must discourage a culture of revenge in our society, it needs to be pointed out that this argument suggests that there is a faction of our society that condones mass murder. The argument, taken to its logical conclusion, wants us to believe for example that if the government were to prosecute former president Jammeh and his cohorts for the massacre of our children, there will be some from the society who did not partake in this heinous crime who will be prepared to bring chaos in the country in order to defend Jammeh. I cannot accept that argument. I believe we are from a civilized society and the overwhelming majority of the citizens will never condone impunity for such a callous crime.
By calling for retribution, the victims and society at large are not seeking to fulfil a desire for revenge. Criminals owe a debt to the whole society and not just to their proximate victims. Therefore, it is every citizen’s legitimate duty to demand justice for the victims and our society. And the government in whom the power of the people is vested should ensure that criminals are punished appropriately, pursuant to the laws of the land. Otherwise, there could be vigilantism and chaos in the society. To me, this is a bigger concern than the fear that Gambians are going to rise up to defend criminals. Gambians are very fair and will not defend criminals if they know that the criminals’ due process rights are being respected.
When the government punishes criminals for their behavior, the punishment serves a dual purpose: it deters the criminal from repeating the behavior and it also serves as a deterrent to others in the society who might have contemplated committing such a crime. Are there situations where the government, for the greater good, could decide to exercise leniency on criminals? Absolutely. As I argued before, even in the most sophisticated legal systems, certain situations warrant bargaining with less culpable criminals in order to get to the real culprits. This massacre, is not such a situation.
I think what the citizens will have a problem with is when commissions are used as a substitute for regular courts in order to avoid punishing criminals. That is exactly what Jammeh did when our children were gunned down in broad daylight on April 10 and 11, 2000; and he was roundly condemned by most Gambians. It pains me to even think that our current government is capable of taking the same route that Jammeh took.
If our prosecutors feel overwhelmed, they should consider referring Jammeh to the ICC. But I have confidence that the current system can handle Jammeh and his cohorts. I also have confidence in the decency of the Gambian people. Gambians are not going to come out en masse and plunge the country into chaos because they want to defend murderers, who are not being railroaded through the regular courts.
Muhamad Sosseh, Esq.
April 29, 2017