The Lead Counsel at the Truth, Reconciliation and Reparations Commission said some of the jungulars who make full disclosure of their crimes at the TRRC may be considered for amnesty.
Last week, three jungulars (members of exiled ex-president Yahya Jammeh’s death squad) appeared before the commission and confessed to taking part in multiple killings allegedly on the orders of the ex-leader. The issue of the fate of the jungulars has been a major topic of discussion by Gambians especially on the social media after Justice Minister Abubacarr Tambadou told journalists last week that detained jungulars who made confessions at the TRRC may be released.
More than a dozen jungulars have been in custody since Jammeh left power in January 2017.
In an interview with The Chronicle, Lead Counsel Essa Faal said qualification for amnesty does not depend on one’s status or the types of crimes one may have committed, but on full disclosure of information as well as expression of remorse.
“Only those who bear the greatest responsibility for crimes and those adjudged to have committed crimes against humanity will not be entitled to amnesty,” he said. “For this being the case I think it’s not difficult to say some of the jungulars may qualify for amnesty.”
According Faal, TRRC has host of questions that are to be asked and considered before anyone can be granted an amnesty, stressing that full disclosure of information and showing remorse are two main issues established by the TRRC Act.
He said the commission may also come up with other conditions such as imposition of community services to people found liable, adding that if such conditions are not respected by people found liable, they will be denied amnesty.
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.
In February, Faal told The Chronicle that “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.”
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. But 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 and extra judiciary killings cannot be amnestied,” said Aaron Weah, NGO Search for Common Ground’s Country Representative in Liberia. “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.”
On another issue, Faal said approximately 160 people may have been killed or disappeared during the 22-year-rule of Jammeh. He added that “it is the duty of the commission to ascertain the whereabouts of these people.”
On the question of whether the International Criminal Court will take up cases after the TRRC completes its work, Faal said: “Perhaps it’s too early to determine whether ICC should come onboard because by the end of the day the commission is to determine whether there were crimes against humanity or not.”
“We’re yet to hear all the evidence coming before the commission and I think it will be premature to make a statement on whether the ICC can consider that crimes committed in the Gambia constitute crimes against humanity. We have to wait and see,” he said.