Yankuba Touray at TRRC: No Concept of Constitutional Immunity for Serious Human Rights Violations

When former AFPRC junta appeared before the TRRC Wednesday, it was widely hoped, I guess, that he would tell the truth and admit his complicity in the atrocities committed during the wee days of the junta’s reign. And, in doing so, show humility, regret and seek the nation’s forgiveness. Simply, follow in the foot-steps of his AFPRC cohort Sana B. Sabally. It was anything but. This was like a theatre of nightmares, an eerie scene from a disturbing Shakespeare play, a clash between Brutus and Julius Caesar. Yankuba Touray, before the TRRC, viewed by millions here and abroad, appeared indifferent. He was aloof, arrogant and condescending. He defied the Commission and by extension the entire Gambian people, on whose behalf the TRRC has been set up.

The TRRC, like other truth commissions, is not a criminal tribunal (court). In our own context, much like elsewhere, is to build a national and collective platform from which to discuss human rights violations from 1994 to 2016. Through this process, it is hoped, we will be able to create a space in which both victims and offenders will participate and through which we would be able to resolve grievances in the spirit of “truth telling/seeking” and “reconciliation.” The lessons learned through the public hearings will help us to rewrite accurate historical narratives and for the Commission to recommend appropriate reparations, not least criminal accountability for the most culpable (those who bear the greatest responsibility/blame) and institutional reforms to address historical injustices.

This country endured pain and suffering under Jammeh. It is only appropriate that we unearth the truth and somehow, muster the will to forgive and reconcile. Some of the testimonies of witnesses are harrowing. Some perpetrators, like Sabally, legitimise the work of the TRRC by facing the nation and owning up to their wrongs and asking for our forgiveness. That is the concept and rationale of the TRRC. It will then be up to the Commission whether to grant some form of amnesty to individuals who testify and tell the whole truth. Equally, for those that appear to deliberately lie before the TRRC, to face the consequences of their inability to embrace the spirit of the process.

When Yankuba Touray appeared before the TRRC, he was rude, snobbish, abrupt and adamant that he was not interested in taking part in the proceedings because believed that he has constitutional immunity that robs the Commission of a legal jurisdiction to put him on oath and hear his testimony. He repeatedly said “I invoke my constitutional immunity in all these issues”, adding that the Commission lacked “legitimacy” to question him.

Yankuba Touray is relying on the Second Schedule of the 1997 Constitution (Transitional and Consequential Provisions), more particularly section 13 which relates to legal proceedings. It reads:

13(1)- No member of the Armed Forces Provisional Ruling Council, any person appointed Minister by the Armed Forces Provisional Ruling Council, or other appointees of the Armed Forces Provisional Ruling Council shall be held liable either jointly or severally for any act or omission in the performance of their official duties during the administration of the Armed Forces Provisional Ruling Council”.

This provision, I believe, is what Mr. Touray is relying on to argue that he is immune from taking part in the process. And perhaps section 13(2)(3) and (5).

It is my belief that Yankuba Touray is not immune from any form of civil or criminal liability for his actions insofar as serious human rights violations are concerned. Firstly, the constitution does not envisage or contemplate the concept of immunity from criminal prosecution for serious offences such as rape and murder.

Secondly, there are entrenched provisions in the constitution under Chapter 4 (section 17 – 38) that guarantee the protection of fundamental rights and freedoms. Section 18(1) states that no one shall be deprived of his or her life intentionally except in the execution of a death sentence imposed by a court. Section 19 protects the right to personal liberty and section 21 provides protection from inhumane treatment such as torture or other degrading punishment. Section 24 provides for protection under the law and for fair trial.

Thirdly, it is almost legally inconceivable that the same constitution will derogate entrenched provisions under Chapter 4 by providing criminal immunity for the same rights that this Chapter seeks to protect, hence they are referred to as fundamental rights. Even under international law, certain rights are absolute and non-derogable, such as the right against torture. The right to life, although derogable, albeit in limited and specific circumstances, may only be interfered with by a court of law and after all appellate rights have been exhausted. Therefore, the constitution is not an instrument that will cloth members of the AFPRC a constitutional right to commit rape, murder, torture etc with impunity. Any such law will be wrong and unconstitutional as it will be inconsistent with the International Covenant on Civil and Political Rights (ICCPR), which we are a party. Similarly, section 13 is simply an unjust law in the context of Yankuba Touray’s claim.

Suppose I am minded to even give attention to Yankuba Touray’s foolish argument, I will not labour to state that section 13, assuming without accepting that it is even constitutional, is concerned with acts and omissions in the course of official duties and functions. Now, let’s say that Yankuba Touray, in his capacity as Minister at the time as Minister for Local Government and Lands, authorised the demolition of stalls/shops in a market required to make room for the expansion of the same market and aggrieved individuals report the matter for criminal damage. In such scenarios, perhaps he may argue that he is immune from civil and criminal liability for his actions as they were taken in the performance of his official duties and in good faith.

Now I would like Mr. Touray to tell us what was official in his conduct and actions when he and other henchmen lured Ousman Koro Ceesay to his residence near Senegambia and ambushed him and murdered him in cold blood and then set him on fire in his vehicle so as to cover their crime. The planning and execution of the grotesque and horrific murder of Ousman Koro Ceesay, was criminal and has no nexus whatsoever with the duties and/or official functions of a cabinet minister. The aghast murder of Koro Ceesay has no link or bearing on the issue of governance or ministerial functions.

It thus, does not make sense for Yankuba Touray to appear before us, the Gambian people, devoid of any hint of remorse or sorrow, and claim that he has constitutional immunity to commit murder and other serious human rights violations. There is no such doctrinal concept in our supreme law because that will undermine and defeat the purpose and sanctity of constitutional law and its principles. It was held in Attorney General v Pap Cheyassin Ousman Secka by the Gambia Court of Appeal in July 2008, relying on sections 200(1) and 202(2) of the Constitution that the primary function of a Commission of Inquiry (the TRRC has the same rights, powers and privileges exercisable by the High Court and its powers are akin to that of a Commission of Inquiry) is eliciting evidence on the subject of inquiry or investigation, holding that “… if it cannot enforce the attendance of witnesses, examine them and compel production of documentary or other evidence then certainly it will be unable to carry out the functions and duties vested on it by section 200(1) and 202(1) of the Constitution…….”

I understand, though I cannot confirm, that the Supreme Court had declared the unconstitutionality of section 13 in a case involving Kemesseng Jammeh, represented by Lawyer Ousainou Darboe (unreported case).

Mr. Touray also questioned the legitimacy of the TRRC. That’s utterly absurd and ludicrous. While legality is derived from law, legitimacy emanates from moral and political considerations. I guess you do not know the difference between legality and legitimacy and I guess you were trying to challenge the legality of the TRRC and not its legitimacy. The TRRC is a creation of the National Assembly, the 2017 Act is a statutory provision passed by our MPs. So you are wrong to even remotely question the legality of the TRRC. On the issue of legitimacy, that will depend on whether the functions of the TRRC will serve a public purpose and for the common good of our country and whether the people support it by and large. I think all these questions can safely be answered in the positive. The TRRC is needed to confront the wrongs of the past, learn from them in order to prevent a repeat. The majority of the people, I can fairly assume, are in favour of the work of the TRRC. That, Mr. Touray, is where the TRRC’s legitimacy comes from.

The appearance of the Sana B. Sabally before the TRRC and how he accepted responsibility for his actions and apologised to the nation further legitimised the work of the TRRC because it gave it credibility and authority to summon high profile perpetrators before it. In a stark difference, Yankuba Touray appeared today and only interested in defying the Commission and telling the Gambian people that he has no regard for the process, in fact, that he does not even believe in its jurisdiction. That’s not only rude and inconsiderate, its cowardice to refuse to face the cameras and the Gambian people. Chairman Sise acted swiftly and decisively. Yankuba Touray’s petulant actions today, brought the administration of the TRRC into serious disrepute. We cannot allow a perpetrator to make a mockery of the TRRC. The Attorney General must act swiftly and indict Yankuba Touray without delay. There is nothing in the TRRC Act or any other law that prevents the AG from indicting Yankuba Touray on murder and all the other crimes that he allegedly committed during his time as AFPRC and APRC Minister. If he is charged with murder, a non-bailable offence, he will be remanded in Mile Two during the trial. Then again, if he is charged with misdemeanour offences under the TRRC Act itself or under the Criminal Code or other penal laws, he will likely be granted bail and that I am afraid, will make a mockery of our judicial and criminal justice system as that will embolden him.

Abdoulie Fatty is a lawyer at A. Fatty & Co. He previously served as a Magistrate in Banjul. He studied in the U.K and was called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice and his LLM Dissertation looked at truth commissions and transitional justice.