(JollofNews) – To draw plausible conclusions as to whether justice would be served for alleged human rights abuses committed by state officers in the Second Republic, it is necessary for one to revisit the case of Senator Augusto Pinochet as it may allow us to understand the importance international law attaches to the protection of peremptory norms.
This will also help us to examine the extent to which international human rights law has evolved to disallow the use of state immunity doctrine to shield perpetrators of deplorable crimes from prosecution.
Augusto Pinochet was significant and a symbolic figure in many ways. In diplomatic sense, it was unprecedented for a state to arrest another sovereign state’s former head at a request of another foreign power.
It constituted the end of sates’ cautious approach to interfere in internal affairs of another state. No wonder it had generated ceaseless glare of media attention. The Spanish authorities were not prepared to settle for anything less than a speedy extradition of the General to face criminal trial for alleged human rights abuses commissioned under his watch. .’It was contended that Chile had a vested right to immunity to the General and that no other State had the right to exercise jurisdiction over his crimes.
Moreover, such protection is in accord with the Vienna Convention on Diplomatic Protection which provides former heads of state with immunity ratione materiae. It follows that Chile as an independent and sovereign state has the necessary legal capacity to confer such right on its former head of state. The House of Lords rejected this argument by displacing the state immunity doctrine for justice to take its course.
Your lordships took the view that state immunity should not be invoked as facade to cover up international crimes.
Certainly, it defies common sense for an abstract state to commit serious crime against the very citizens it has a sovereign duty to protect. In the words of Lord Slyn ‘it is artificial to say that an evil act can be treated as a function of a head of state’. In my view, perpetrators of such crimes represent the controlled mind of the state. Therefore, they should face the full force of the law if found guilty of their crimes. There can be no doubt if international law fails to hold such men responsible for culpable crimes; impunity seems the likely consequence.
It was a known fact that the Senator had a well-established close nexus with the UK’s political establishment. But as a state party to the Torture Convention, the UK has an obligation to make sure that crimes within the scope of the Convention are punishable by national laws. It is also the case that the UK has extradition treaty with Spain which provides that the perpetrators such of offence be extradited within a reasonable time. Undoubtedly, the case affirmed that no head of state has blanket immunity against crimes that have a character of Jus cogen.
Importantly, it places the community’s security over individual’s security that is crafted in state immunity doctrine.
Turning to human right abuses allegedly committed by state officers in the Second Republic. Firstly, The Gambia must bring criminal charges against those perpetrators for their role in such distasteful crimes to create the right momentum. Indeed, the perpetrators must be presumed innocent until proven guilty by a competent court.
That is an important principle of fair trial. It will be against all principles of justice for defendants to be tried by the public opinion or the media.
Subsequently, the government may choose to seek extradition of the perpetrators provided that there is enforceable extradition treaty between The Gambia and their country of residence. Absent of extradition treaty is likely to stall any proceedings. For instance, In 2004 Equatorial Guinea did not secure the extradition of foreign mercenaries who were allegedly involved in a plot to oust its government because there was no extradition treaty.
A deliberate omission designed to insulate a culture of impunity, but sounded death knell for the efforts to bring the perpetrators to justice. It is interesting to note that, there is no extradition treaty agreement Equatorial Guinea and The Gambia. Perhaps, this explains why Equatorial Guinea is seen as a preferred destination for anyone who might be implicated in the alleged human rights abuses that occurred in the Second Republic.
What is more striking is that The Gambia has not yet ratified the Torture Convention. This raises the question whether state officers who were complicit in commission of torture could be brought to justice under the Convention. It is undisputable fact that the both Republics had abysmally failed to give effective to one of the most seminal human rights instrument that accords comprehensive protection to the citizens’ human rights. The Torture Convention has been ratified by majority of states; even Equatorial Guinea has acceded to the Convention in 2002.
The inaction of successive Gambia governments suggests, there could be inherent difficult legal challenges ahead to bring any successful prosecution. Nevertheless, if justice is to be delivered the new government must be ready to take bold actions to overcome such challenges.
The 1997 constitution of the Gambia prohibits torture under Section 21. However, it could be argued that it is not precise to make attempts and complicity as criminal offences. If there are no national laws pertaining to such offences, the secret services agents and law enforcement officers may be absolved from certain criminal liabilities under the Convention. The other important point is that the Convention has the necessary ingredients that can compel state party to take training and educational measures, in order to equip relevant state officers with the knowledge and skills on how to relate with the civil populace. That way , they can perform their duty with diligence in respect of citizens’ human rights.
Therefore, It is incomprehensible, a government that supposed to have the interest of its people at heart failed to confer much needed protection on citizens. The omission can only be seen as a travesty to the intelligence of Gambians, an absolute failure to govern in good faith. It suggests here that governments were more interested in asserting their grip on power rather than guaranteeing the security of Gambians.
Notwithstanding, the torture Convention categorically prohibits torture and no state can derogate from it because it has become peremptory norms. That been the case there is a glimpse of hope for justice if Equatorial Guinea and other state parties adhere to their obligation under the Convention, by taking reasonable steps and facilitate proper dispensation of justice.
They could either execute arrest warrant put forward by a requesting state, or they may well assert jurisdiction over the crimes under the ambit of the Convention. This is illustrated in the recent Swiss case where a former government officer was reportedly arrested for crime against humanity. Such decisive action is likely to be lauded by many around the world. Importantly, it would provide an opportunity for state such as Guinea to unmask its perceived ‘rough state image’ and uphold international justice.
While punitive justice seems desirable because of its deterrence effect on the perpetrators, the truth reconciliation process may also deliver justice as well as unify the nation. The story telling of the historical facts can bring closure to the sufferings and pains of those affected by the atrocities as they learn the unambiguous truth about what had happened. Despite this, there is a danger that the process may be stymied, if tension is allowed to rife between those who want retributive justice as opposed to those who favour reconciliation.
Therefore, there is a need for an active political leadership to engage all stakeholders in good faith for the construction of the Commission. Whatever the circumstance, it helps greatly if the perpetrators are remorseful about their crimes.
If the new government managed to reverse the decision of leaving the ICC, it can allow court to have jurisdiction over some cases. However, crimes against humanity must meet the requirement of widespread and systematic to fall under the ambit of the ICC. This requires adduction of creditable evidences that are crucial to the success of any future trial. The Chief Prosecutor could invoke the power of proprio motu power to investigate any relevant crimes if they meet the necessary criteria.
The power has been a subject of selectivity because it has been mostly deployed to investigate African cases. Although the court has been seen by some African leaders as an instrument of foreign powers that only target Africans, the court is treaty based on state’s consent, depriving its authority from the membership. Bensouda, the Chief Prosecutor, responding to such criticism said this: ‘‘What offends me most when I hear criticisms about the so-called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals and to forget about the millions of anonymous people that suffer from these crimes.’’
Surely such propagandas are designed to undermine the authority of the Court. Let me make it clear, the court has achieved justice for powerless Africans who were brutalised by repressive regimes. I wonder if there is any strength in the ‘African bias argument when in fact these atrocities were committed on African soils by callous Africans for political power.
The case of Augusto Pinochet illustrates the point that international law has fundamentally changed to make it difficult for the perpetrators of international crimes to escape justice by hiding in safe haven. Individual criminal act cannot be attributable to impersonate state for the purpose of absolving one from criminal liability. It is not only unrealistic but also offensive to all notions of justice if state immunity is employed to cover up serious crimes committed by state officers who have fallen from grace.
Therefore, it is incumbent on the new government to take all measures necessary and deliver justice for the victims. This can be achieved through truth and reconciliation mechanism or proper application of the law. From now onwards, the clock starts ticking while the jury is sent out to consider verdict as to whether the government has the tenacity to avoid ‘‘Show Trials’!!
God bless
CHARITY BEGINS AT HOME, AND THE NEED FOR TRANSPARENCY, ACCOUNTABILITY AND DUE DILIGENCE FROM THE NEW LEADERS AND THE NEW POLITICAL DISPENSATION IN THE GAMBIA:
I would first, like to take this opportunity to send my Heartfelt Sympathy and CONDOLENCES to Adama Barrow and his family for the immense loss of their Son. May Allah/God Welcome and Receive the Departed Child in Heaven. May his Soul rest in Peace.
Given the Circumstances Surrounding the then President Elect Adama Barrow’s Son’s alleged killing by a family dog, while Barrow and his Clique were in Senegal Without Proven Evidence so far, that President Elect Adama Barrow’s life is in Danger, or any Tangible and Rational Reasons given to the Gambian people, other than either Political Drama, that Some might See as Opportunistic Political Moves to Potentially Camouflage Cowardice while at Same time Conveniently place Macky Sall and Senegal in Center of the Gambian Political Crisis. The alleged Culprit and or Material Evidence of the Crime and the Victim, that is, the Son and the Dog needs to be Utopsed by an Independent Qualified Forensic Pathologist Not Connected with the Coalition Alliance Party or Government for the Interest of the Public/Gambian People. The fact that the reports indicate that the Family dog has never bitten anyone before and Significantly, that Tests indicate that the Family dog is not Rabid (No Rabies) and therefore, Not Sick, should raise Questions, if not Suspicion and Concern with reference to the Poor CHILD’S UNTIMELY DEATH. The Questions and Suspicion are more Warranted and indeed made more Legally and Socially Relevant due in part to the Potential and Real Child Abuse and Neglect Charges following a Detailed independent investigation into the Circumstances Contributing to the Death of the Poor child. Such an investigation Should have been initiated by the Authorities Against the Aunt and anyone who was Entrusted with the Care and Guardianship of the Child. Questions such as, how many times and for how long has the child victim been at the Aunt’s house in the past while the dog is at the same Compound or house? Is this the first time the child has been in Contact with the dog? Where were the Aunt and other Adults of the family at the time of the child victim’s alleged attack by the dog? The nature and duration of the alleged attack has to be established? The nature and extent of the wounds also needs to be established given the alleged enresult. The questions may seem to the avarage Party Hack, Supporters, and even some Common Decent GAMBIANS to be Mobid and Intrusive on the Family’s Life. However, this is Not and I Submit until Proven otherwise, a Coincidental, Happenstance Incident or as would be termed quoloqually, “Allah Lakke”, Mandinka for God Willed it/Did it. The Presidency is a Public Office and as a Consequence all of his Actions or Lack of Action, Family Events or Incidents are of Public Interest and Concern. After all that is why the Presidency occupies the State House at the Expense of the Gambian Public’s Tax Money. Some detractors might Object and dismiss the Salient Questions and Suspicion raised about the Child’s Death, that is Murmured about Softly between friends and family, as “another Opposition Supporter or Critic of the Adama Barrow Presidency”. Nothing is further from the Truth. The fact is, I am at least at present, Not a Member of any Gambian Political Party and have Never been. Never Voted in Gambia. When and if, the Franchise is Extended to the Diaspora, I will at that time, with Informed Consent, Decide which Party to Register as a Loyal Gambian and offer my Support. I may, given my Propensity for Independence of Thought and Action, register as an Independent. This way, I can Vote for the Policy and not the Personalities or a Party’s Agenda that may be Detrimental to the REPUBLIC, The Gambia. That is another matter. Back to the one at hand.
Furthermore, the Questions and Suspicion are more Warranted given the Reaction or more Accurately the lack of it from the then President Elect Adama Barrow and his Clique in Senegal, as well as the Son’s mother about the death of their Son. Any parent who experiences such a loss, especially, (Socio-Cultural Context), that of a Male child or any child for that matter, would not be Able to Restrain themselves in Private or Public, to Show or Demonstrate their Emotion, Trauma and Parental or Socio-Cultural Reaction to Such a Loss.
However, this is not the case with the death of then President Elect Adama Barrow’s Son, allegedly by a family dog. What transpired through out the time or days of the Child’s Death, was “Business as Usual”. In this case, President Elect Adama Barrow and his Clique Continued on with their Stay or as Some might say, Vacation at The Gambian Tax Payers’ Expense at a reported Elegant and High End Hotel in Senegal where they Entertained and were Entertained by SENEGALESE Musicians and Wrestling Personalities and Who knows Who and What else. The Circus was even too much for some Decent Senegalese who took to Facebook and the Internet to Slam and Blast the Gambian President and his Cliques’ Troubling Reckless Leadership and lack of empathy and compassion for their Continued Stay in Luxury in Senegal while the Gambia they are Supposed to Lead was on a Dynamite Set to Explode. The Uptick narrative and in this case, an unavoidable one is, how can such an individual and Clique be Entrusted with the Administration and Management of the Affairs of the Gambian State and People? All Variables considered, the future under such a Clique at the Top of the Gambia Government does not indicate good tidings. I am not a Pessimist by Nature, but in this Circumstance, I am very Worried, infact, I am Terrified of what is in Store for the Gambia, moving forward. I am and shall always be a GAMBIAN no matter what. But the Quality of LEADERSHIP at the very top of the Gambian Government is Not what The Gambians and Gambia Deserves. A Coalition Government by Definition is a Government of Equals and its Composition should reflect such a definition to Avoid further Crisis down the road. The Gambia and GAMBIANS Deserves Better After 32 years of the David/Dauda K. Jawara’s and 22 years of Yaya Jammeh’s Regimes. I pray and hope that I will be proven wrong and that President Adama Barrow and his Clique would Succeed in leaps and bounds and Usher in Tangible Egalitarian Socio-economic and Infrastructural Developments, from where President Yaya Jammeh’s government left off. If they Forthwith embark on this with a Sense of Purpose and Urgency, unlike how they’ve been performing so far, The Gambians and Gambia may yet be in for better days yet. I would then, eat my own Words or Worst, eat CROW.
Mr. PRESIDENT and Clique, Please Take Me On this HOPE…
WITH MALICE TO NONE, A QUEST FOR JUSTICE, DUE DILIGENCE AND PEACE TO ALL. ONE GAMBIA, ONE PEOPLE AND ONE DESTINY.
Sidi, extending your condolences to the Barrow family is commendable and very Gambian. I also agree with you on the issue of accountability and transparency. However your suggestion that there was no security risks to the then president-elect is either being ill informed or incapable of making simple analysis of a given situation to anticipate potential problems. Quite frankly Sidi I do not believe either of this apply to you because you are intelligent. I think you are just being clever in your analysis to avoid admitting the truth. You have said in you comments that the presidency is a public office and that all it’s occupier’s actions and family events are of public interest yet Mr. Barrow was never given state security to safeguard the public interest. All party leaders should be given state protection during election period. But that never happened. Perhaps if there were state security agents in attendance, most if not all the salient questions you asked could have been answered. Because they will give an unbiased account of the incident or events leading to it. Barrow has been catapulted from an ordinary citizen to a president-elect on the 2nd of Dec 2016. This has made him a high value target for anyone who wants to destabilised the country. Sidi we all know that Gambia was on the brink of civil war some weeks ago, so without state protection, the risks to Barrow’s life was extremely high. Security is all about anticipating potential problems and taking preventative measures. However I agree with you on the issue of transparency, therefore the president should come clean to Gambians about who foot the bill of his stay in Senegal and give a detail account of what the tax payers money was spent on. Grief, Mr Bojang is an individual act and response to loss. Different people grief differently. It is therefore very wrong for anyone to try and dictate how a person should grief. On the issue of investigating the death of Mr Barrow’s son, well that should have been carried out by the police at the time of his death. Barrow was not the president then and even if he was it would be wrong for him to dictate what the police should and should not investigate. No president or politician should interfere with the functions of the police. So lets leave it to the IGP to decide whether to investigate this rumours or not. I believe most Gambians will support any decision he takes as long as he clearly communicates the rationale behind that decision to the nation.