There has been a lot of justifiable outrage on the decision of the Attorney General to release some of the Junglers who have been involved in murder, torture and innumerable other crimes against Gambians under the Jammeh dictatorship. The release of the Junglers from detention is problematic but the problem goes even deeper than that. The Attorney General has shown inexcusable incompetence in his handling of this issue from the very beginning and almost complete disregard for Gambian people’s right to know about the justice process.
The Junglers were arrested more than two years ago. The basis of their arrests was strong probable cause even before a single witness appeared before the TRRC. They were either detained under the normal criminal code or the military code. The difference matters. If they have been detained under the normal criminal code for civilians, the government needed to bring charges or release them within 72 hours. If they had been detained under the military code, they could have been detained much longer, but even that would not be indefinite.
The argument here is not that the Junglers needed to be released. Far from it. However, there is a way of keeping them detained by following due process from the very beginning. Here is what could have been done. The number of crimes on which these Junglers can be indicted should be numerous. The serious crimes of murder and torture are the biggest but are far from the only ones. There is a way of charging them with lesser crimes that are easy to prosecute, while the state takes its time to properly investigate the more serious human rights abuses. Should these Junglers apply for bail, the government should be able to make a strong case that the bail should be denied. After all, there is a strong possibility of flight from justice, evidence tampering or possible witness intimidation. These individuals, accused of such human rights abuses, would be kept where they belong until justice has taken its course.
The first of a series of problems is that the government never communicated to the Gambian people, including the relatives of the victims, under which code these Junglers were detained (now we know it is the military code). Another is that it is not appropriate to have the Junglers case be handled under the Military Code even though they are soldiers for the simple reason that the military is far from undergoing the necessary reforms. Furthermore, the severity of these crimes goes beyond purely military-related crimes, which the military code is designed to handle. What’s more, the victims include civilians, which should provide further basis for handling the Junglers case under the civilian justice system.
Another problem is that it is apparent that the Attorney General had no plan on what to do with the Junglers. Mr. Tambadou told the media a few months ago that the government has no capacity to handle the Junglers’ case. The idea that the country would be unable to prosecute a group of such individuals beggars belief. First of all, some of these Junglers had confessed. Secondly, the content of the testimonies of many people before the TRRC provides further evidence and corroboration. In addition to these developments, the Ministry of Justice had almost three years to carry out adequate investigation and prepare a case. Even if a full investigation is yet to be completed, a competent investigating team should have enough time to build a case so that at least some charge could be made.
For the Justice Minister to argue that the needed resources have been unavailable is not a valid excuse, only a demonstration of ineffectiveness. Immediately after the fall of the Jammeh regime, The Gambia enjoyed a lot of international goodwill. A well-defined and articulated request about needing assistance for the proper handling and prosecution of human rights violations of the Jammeh regime would easily have met favorable reception almost everywhere. What has Mr. Tambadou and his ministry been doing all this time?
An argument has been floated that it makes sense to release some of the Junglers given that they have cooperated. In other words, the release is a form of incentive mechanism for continued cooperation. This argument does not withstand scrutiny. Yes, the Junglers have been under detention for over 2 years. But that length of detention is nothing compared to life imprisonment, which is the proper sentence if convicted for the crimes they committed. The way to incentivize their cooperation would be to offer them reduced sentence post-conviction. For instance, instead of life imprisonment, they could face reduced sentence from anywhere between 15 and 25 years of imprisonment.The possibility of a pardon without any jail time should not be a possibility for anyone involved in human rights abuses. Without any consequence for those kinds of wrong, what mechanism is there to ensure that such horrendous crimes are not repeated in the future?
A common mistake made by many commentators is that any criminal proceedings against the Junglers would impede the work of the TRRC. First of all, the issue of justice of the criminal nature that the Junglers were involved in cannot be fully addressed by the TRRC. In other words, the issue of justice such that the perpetrators face the consequences of their actions is not part of the responsibilities of the TRRC. In fact the TRRC, as constituted, does not include the prosecution and bringing to justice the perpetrators of human rights abuse. The Ministry of Justice could have handled matters in such a way that cooperation with TRRC by witnesses is enhanced while justice still takes its course. Specifically, the Justice Ministry could simply make it known to the Junglers and others that 100% truthfulness at the TRRC would be a mitigating factor when their case eventually goes to trial. The TRRC is one process, though a major one, among many actions that need to be taken by the government to correct the wrongs of the Jammeh regime. Needless to say, issuing pardons for any perpetrators of human rights abuses such as the Junglers would completely discredit the TRRC.
But here we are. We are left with a situation where the Justice Minister has released some Junglers without any plans of what to do except to hope that the TRRC would make some decisions for them. The survivors, other victims and their families are understandably outraged. This situation will only get worse.It should be clear to everyone by now that Mr. Tambedou has been an unmitigated disaster as the Justice Minister, despite what his CV may contain. His track record as Attorney General has been glaring for its lack of any significant accomplishments.
Consider the high-profile trials that started under the Barrow regime. The trial of the former DG of the NIA Yankuba Badjie is still dragging in the courts over 2 years since it started. There seems to be little progress to date. The trial of the witness tampering case against Yankuba Touray and Fatoumata Jahumpa-Ceesay collapsed within hours of arriving in court. The charging of Yankuba Touray with the murder of Ousman Koro Ceesay was a reactionary decision rather than a considered decision. After all, the investigation into the murder of Koro Ceesay seems unlikely to have been started, much less completed before Yankuba Touray’s arrest. These cases reveal a Justice Ministry that is led by an individual who, on the surface appears competent, but is far from that in reality. Little wonder there is an exodus of young talent from the Ministry.
Ousman Gajigo is an economist. He has held positions with the African Development Bank, the UN, the World Bank and Columbia University. He holds a PhD in development economics. He is currently an international consultant and also runs a farm in The Gambia.