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MISSION REPORT OF THE AGJA-WAYAMO DELEGATION TO THE GAMBIA Meeting Expectations on the Road to Justice: Achieving Accountability in The Gambia THE GAMBIA |MAY 2018 REPORT AUTHOR: MARK KERSTEN REPORT EDITOR: MICHAEL BENEDICT With the fnancial support of: 2 THE AFRICA GROUP FOR JUSTICE AND ACCOUNTABILITY (AGJA) & THE WAYAMO FOUNDATION TABLE OF CONTENTS Introduction and Background page 3 Observations, Conclusions and Recommendations page 6 Building capacity for justice and accountability page 6 Victim participation page 7 Communications and setting expectations page 8 Partnerships and co-operation page 9 Constitutional review and reform page 9 Supporting a free and independent press page 10 Reparations page 11 Linking transitional justice mechanisms page 11 Ongoing trials page 12 Criminal accountability for the former regime page 12 Annex: Summary of recommendations page 14 MISSION REPORT OF THE AGJA-WAYAMO DELEGATION TO THE GAMBIA | 2018 3 INTRODUCTION AND BACKGROUND On 1 December 2016, Gambians went to the polls. Little 2016, Jammeh declared the results of the presidential international attention was paid to the election, in view election null and void due to alleged abnormalities. of the widespread anticipation that President Yahya While the precise causes of Jammeh’s volte-face remain Jammeh, who had held on to power since his 1994 unclear, it is notable that prior to his rejection of the military coup d’état, would win yet another term. After election results and his demand for a new presidential all, Jammeh had, one occasion declared that he might poll, senior incoming government ofcials, including the stay in power for a “billion years”. To the surprise of local country’s future Vice President, had publicly suggested and international observers alike, however, Jammeh lost that Jammeh would be prosecuted for crimes allegedly power to a coalition of opposition parties led by Adama perpetrated during his rule. Barrow. In the wake of Jammeh’s refusal to relinquish power, the Given Jammeh’s personality and autocratic style of Economic Community of West African States (ECOWAS) leadership, along with the reality that The Gambia had launched an initiative to de-escalate tensions, enforce not hitherto experienced a peaceful transition of power, the outcome of the presidential election, and negotiate the fact that Jammeh conceded so readily was perhaps the transition to democracy. A group of West African more surprising than Barrow’s electoral victory itself. leaders, including those of Liberia, Ghana, Nigeria and Sierra Leone, thus engaged directly with Jammeh It initially appeared that The Gambia would experience in multi-track negotiations. Backed by an ECOWAS- a smooth transition from one-man rule to democracy led military intervention, these sensitive negotiations and respect for the rule of law. But on 9 December ultimately resulted in Jammeh’s stepping down and 4 THE AFRICA GROUP FOR JUSTICE AND ACCOUNTABILITY (AGJA) & THE WAYAMO FOUNDATION his acceptance of exile in Equatorial Guinea. Barrow’s included human rights advocate Fatiha Serour subsequent recognition as the nation’s democratically (Algeria) and Wayamo Foundation Deputy Director, elected President and the birth of a new era were met Mark Kersten (Canada). by jubilation and high expectations of what the future would bring. Over four days of consultations, the delegation held meetings with a wide spectrum of interlocutors, Jammeh’s departure, reportedly along with millions ranging from the country’s Vice President, Ministers of dollars in cash and a number of luxury items and of Justice and Foreign Afairs, Inspector-General cars, closed the chapter on autocratic rule in The of Police, Speaker and members of the National Gambia and, by the same token, introduced democratic Assembly, to representatives from the United governance to the country. Yet the challenges of Nations Development Programme, United Kingdom, re-building the state and its institutions, whilst United States and European Union embassies, simultaneously delivering on the promises to promote Centre for Victims of Human Rights Violations, human rights and achieve justice and accountability University Student Union, and Press Union. for alleged abuses and crimes committed under the old regime, are formidable. After more than two decades of autocracy, the capacity of vital institutions, including law enforcement agencies and the judiciary, is extremely low. Even so, there is immense potential for a democratic state respectful of human rights and the “The Africa Group for Justice rule of law to be built. and Accountability (AGJA) The Africa Group for Justice and Accountability and the Wayamo Foundation (AGJA) and the Wayamo Foundation have been engaged in The Gambia since July 2017, when they have been engaged in The were requested to make recommendations to the Gambia since July 2017, when Minister of Justice, Abubacarr Tambadou, on the proposed Truth Reconciliation and Reparations they were requested to make Commission. Subsequent to its report and at Minister recommendations to the Minister Tambadou’s express invitation, an AGJA/Wayamo fact-fnding delegation was sent to the country in late of Justice, Abubacarr Tambadou, October 2017 to ascertain the nature of the challenges on the proposed Truth confronting The Gambia’s transition and, in particular, Reconciliation and Reparations with regards to achieving justice and accountability for human rights violations and crimes perpetrated Commission. under the former regime. The delegation’s eforts have since been described by high-ranking ofcials as the “most thorough” consultative process undertaken in the The delegation’s efforts have country since the beginning of its democratic transition. since been described by high- Through a series of broad consultations with key ranking offcials as the “most stakeholders in the transitional process, including thorough” consultative process members of government, civil society, academia, and undertaken in the country since the diplomatic community, the delegation sought to understand the challenges and priorities surrounding the beginning of its democratic “ the achievement of justice and accountability in the transition. country. The delegation was led by former Tanzanian Chief Justice, Mohamed Chande Othman, and MISSION REPORT OF THE AGJA-WAYAMO DELEGATION TO THE GAMBIA | 2018 5 The visit made the determined and unwavering commitment of Gambian ofcials and civil society to deliver on the expectations of the Gambian people abundantly clear. It also shed light on the nature and scale of the challenges that this emerging democracy faces in meeting these expectations over the coming “ months and years. After more than two decades of autocracy, the capacity of Based on the delegation’s consultations as well as ongoing research on the country’s transition conducted vital institutions, including law at the Wayamo Foundation, this mission report ofers a enforcement agencies and the series of recommendations to authorities and ofcials in The Gambia as they continue to work on achieving judiciary, is extremely low. Even justice and accountability and building a state that so, there is immense potential eagerly and efectively defends the rule of law and human rights. It is also expected that it will inform for a democratic state respectful the work of the Wayamo Foundation, AGJA and other of human rights and the rule of“ partners interested in further supporting The Gambia’s law to be built. transition process. What follows is a full report of the delegation’s observations, conclusions and recommendations, with a summarised list of the recommendations appended as an Annex. Photography: Frans Sellies (2016) 6 THE AFRICA GROUP FOR JUSTICE AND ACCOUNTABILITY (AGJA) & THE WAYAMO FOUNDATION OBSERVATIONS, CONCLUSIONS AND AGJA-WAYAMO DELEGATION RECOMMENDATIONS RECOMMENDATIONS Building capacity for justice and The AGJA-Wayamo delegation recommends accountability that relevant civil society actors and international donors focus on capacity building for members of the judiciary, justice During the AGJA-Wayamo delegation’s visit, calls for ministry, and police. Ideally, this would institutional capacity building in post-authoritarian include: Gambia were heard loudly and clearly by the delegates. Training ofcials in securing and The Gambia has the beneft of strong and efective preserving documentation and evidence leadership at the most senior levels of its public of alleged crimes committed during the institutions. Justice Minister Abubacarr Tambadou Jammeh era which could subsequently be and Chief Justice Hassan Bubacar Jallow both come used in trials of relevant perpetrators; from distinguished careers in the feld of international Building expertise and training criminal justice. Jallow is the former chief Prosecutor of investigators and prosecutors on how to the International Criminal Tribunal for Rwanda (ICTR) as build cases of crimes against humanity, well as the United Nations Mechanism for International torture and enforced disappearances, and Criminal Tribunals while Tambadou was a lawyer and in particular, focusing on the collection and the special assistant to the Prosecutor of the ICTR from use of linkage evidence to establish the 2012 to 2016. In terms of political will, the government’s systemic nature of the crimes committed; overall commitment to achieving justice and Training judges on how to understand and accountability is commendable. After twenty-two years oversee cases against alleged perpetrators of autocratic

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