Trading Truth for TRRC Amnesty: Who’ll Get Off the Hook?

On Tuesday February 12, Captain Bubacarr Bah alias Van Damme of the Gambia Armed Forces became the first witness before the Truth, Reconciliation and Reparations Commission to confess to torture. The soldier, dressed in full military uniform, described how he repeatedly ‘beat and kicked’ veteran politician and ex-minister, OJ Jallow in the aftermath of the 1994 military coup.

Captain Bah apologized to his victim and asked for forgiveness. And then the Counsel asked him if he would apply for amnesty and he said yes, emphatically.

Under the TRRC Act, the commission can recommend amnesty for alleged perpetrators, but the decision to grant amnesty rests in the hands of the president and the cabinet.

As the commission slowly moves away from how the July 22 military coup happened and what could have been responsible for it to the 11 November alleged extrajudicial killings of soldiers, it is expected that many other Captain Bahs will emerge – to confess, to ask for forgiveness and to apply for amnesty.

The Attorney General and Minister of Justice, Abubacarr Tambadou gave assurance to the victims of the Jammeh regime that amnesty would never be granted without their consent. However, that assurance is still not enough to allay their fears and concerns. Sheriff Kijera, the chairman of Gambia Center of Victims for Human Rights Violations is worried that the TRRC has not yet drawn up regulations in terms of how to offer such amnesty to perpetrators who may apply for amnesty.

The Lead Counsel at the TRRC, Essa Faal said the rules of procedures may perhaps be developed by the Ministry of Justice or through rules and procedures that may be formulated by the TRRC to guide the commission on how to apply the granting of Amnesty to perpetrators who admitted to committing crimes.

“The overarching principle of how to grant Amnesty is in the TRRC Act but the arrangement of how to deal with it plus some of the things that are to be considered by the commission are not yet in place. But this does not necessarily prevent the ability of the commission to address the issues of Amnesty.” He however admitted that ‘it would be nice for the commission to produce a set procedure especially for people who are legally conscious and would like to go over the procedures of obtaining an Amnesty.’

Under the Act, Amnesty is considered when the applicant accepts committing a crime, shows remorse for the crime and speaks the truth before the commission. The law requires the TRRC to establish a committee on amnesty that can co-opt with people to advice on the laws of amnesty. But in the streets, opinions are divided on the issue of granting amnesty to perpetrators. Juldeh Njie, journalism student is against the idea of granting amnesty to perpetrators who committed atrocities.

“Looking at the way the commission is going, some of the revelations are really devastating and unbelievable. You cannot believe that such atrocities were committed in this country. In the future, such atrocities can be repeated. If people commit human rights violations, they should be prosecuted so that all of us can learn from it, and after justice there can be amnesty and forgiveness.”

For Sang Mendy, an administrator, people who are courageous to publicly come out and give accounts of crimes they’ve committed and then seek forgiveness should be amnestied. “They should be given amnesty for the fact that they’ve remorsefully accepted that what they did was wrong and they publicly apologized,” he said.

As such public opinions over the issue of amnesty grow, lead counsel Faal told The Chronicle that the TRRC will not be driven by public opinion, arguing that it is the responsibility of the commission to look at things critically before arriving at any lawful decision.

“I’m encouraging people to come before the commission and speak the truth about what has happened, what they have done and what they have seen, what they know and what they have heard. That is what I will encourage people to do and if it takes them to apply for amnesty so be it. It is not my responsibility to be making decisions about the amnesty. It is my duty to dig the truth and present it before the commission,” Faal said.

As a tool of transitional justice, amnesty is an important incentive that truth commissions often use to attract alleged perpetrators to come forward and engage in the process of truth telling. In the case of The Gambia, it’s also meant to promote reconciliation between perpetrators and victims, as well as national healing.

However, according to international law, amnesty can never be granted for international crimes including torture. Marion Volkmann, a human rights activist from Human Rights Watch and the coordinator of the #Jammeh2Justice campaign is disappointed that the TRRC bill does not fully comply with this principle as it only excludes amnesty for crimes against humanity.

“This provision therefore implies that the TRRC, or maybe Gambian courts, will have to make a complex legal decision as to whether perpetrators’ conduct was committed as part of a crime against humanity,” she told The Chronicle.

The issue of amnesty has always triggered controversy. In countries where truth and reconciliation commissions were used to deal with remnants of past regimes and atrocities, official requirements for granting amnesty to perpetrators often attracted national debates.

“In the case of Liberia, the act establishing the Liberia Truth and Reconciliation Commission was clear on the use of amnesty, that certain crimes such as rape, torture, extra judiciary killings (and others) cannot be amnestied. However, the LTRC used reprieve to recognize some perpetrators who collaborated with the process. The word reprieve suggests a temporary exemption from prosecution. It also means anyone who is reprieved is vulnerable to prosecution should evidences be brought against you in the future,” said Aaron Weah, NGO Search for Common Ground’s Country Representative in Liberia.

The amnesty issue will perhaps be one of the biggest challenges for the TRRC and the overall Gambian transitional justice process. For a country which experienced two decades of some of Africa’s worst atrocities, the process of and criteria for granting amnesty can consolidate or reverse the embryonic democracy.

Kebba Jeffang contributed to this report