Victim Center writes to the UN Secretary General on the rejection of the draft constitution
29th September, 2020
United Nations Secretary General,
New York, United States of America.
Concerns of The Gambia Center for Victims of Human Rights Violations on the Rejection of the New Draft Constitution by the National Assembly Members (NAMs)
On behalf of all Victims of Human Rights Violations perpetrated during the 22 years of Dictatorship of the Yaya Jammeh Regime, we wish to express our concern on the rejection of the new Draft Constitution by the members of the National Assembly on 22 September 2020.
For your information, the new government of H.E. Adama Barrow upon taking over from Yaya Jammeh in 2017, initiated a series of Transitional Justice Processes, part of which was to review and rewrite a new constitution to replace the 1997 Constitution that was doctored by the former government of Yaya Jammeh. As such the Constitutional Review Commission (CRC) was established by an act of parliament in 2017 to draft a new Constitution.
The Draft Constitution was developed through a two years participatory process in consultation with all stakeholders, including the general public. The first draft was shared with all stakeholders and a final draft was sent to the President for consideration and Gazeting after which, a Bill for its promulgation was sent to the National Assembly for endorsement.
It was highly envisaged that the Draft Constitution was going to be passed by the National Assembly and sent to the Independent Electoral Commission for a National Referendum for Gambians to decide. Unfortunately, the promulgation bill failed to attain the required 2/3 majority votes in the National Assembly of The Gambia, to send it to a next reading and subsequently a Referendum. The supporters of President Barrow at the National Assembly, who did not want the Term limit imposed in the Draft Constitution to apply to his current term, and the National
Assembly members from the APRC Party ( Jammeh’s party) joined hands to block the progressive draft Constitution, which was going to usher the Gambia in to a new Democracy.
The rejection of the new Draft Constitution has specific ramifications and implications on our ongoing efforts as victims to seek justice and accountability in general, and for Yahya Jammeh specifically. The following are some of the key concerns the rejection of the draft constitution may impact the on-going transitional justice process;
1. Under the current Constitution, the Gambian legislature must act by a two-thirds majority before charges can be brought against Jammeh. Art. 69 provides that “a criminal court shall only have jurisdiction to entertain proceedings against [a former President] in respect of acts or omissions alleged to have been perpetrated by him or her while holding office as President if the National Assembly has resolved on a motion supported by not less than two-thirds of all the members that such proceedings are justified in the public interest.”
2. The 1997 Constitution purports in Article 13 (1) to immunize members of the Armed Forces Provisional Ruling Council (Jammeh’s first junta), for “an act or omission in the performance of his or her official duties” during the transition after Jammeh’s 1994 coup. Article 13 (5) further states: “It shall not be lawful for any court or tribunal to entertain an action instituted in respect of an act or omission against a person acting or omitting to act on the instructions or authority of the Armed Forces Provisional Ruling Council.” (This provision is now being challenged in court in the prosecution of Yankuba Touray, one of the top leaders of the 1994 military coup.)
3. In addition, the draft Constitution would have allowed the Assembly to resolve key problems in current Gambian law which does not prohibit or define crimes against humanity, enforced disappearances and torture and does not appear to recognize the principle of “command responsibility” or other modes of liability that reflect the ways in which mass crimes are typically perpetrated.
Both these problems are addressed in a draft International Crimes Bill which would be incorporated into Gambian law the crimes of genocide, crimes against humanity, war crimes and torture, as well as the principle of command responsibility.
The draft Constitution had a provision – consistent with international law – which would have allowed these provisions to be used in future prosecutions for Jammeh-era abuses. (“Nothing in the prohibition against retroactivity “shall prejudice the trial and punishment of any person for an act or omission which, at the time it was committed, was criminal according to the general principles of customary international law.”). The rejection of the draft Constitution means that even if the draft International Crimes Bill is adopted in the future, it will be much more difficult to apply to Jammeh-era crimes.
With the rejection of the draft constitution it will thus now be much more difficult to carry out a purely “domestic” prosecution of Jammeh and his enablers even after the TRRC makes its final recommendations. The rejection of the Draft Constitution will have a far-reaching consequence on other Transitional Justice mechanisms as it is regarded as the benchmark for their success.
Furthermore, we are disappointed that on the 23rd September, 2020 the APRC party which Yaya
Jammeh is still the Supreme Leader issued a statement urging the EU, British and German Embassies in Banjul to stay away from Gambia’s business after the Embassies issued a press statement urging NAMs to vote in favor of the Draft Constitution.
This we believe is still being influenced by Yaya Jammeh and his people who do not want to face Justice and be accountable to the crimes they committed.
It has come to the notice of the general public, through various media outlets that the APRC and the new political party of President Adama Barrow (NPP) are in close door consultation to form an alliance in the forthcoming general elections slated for December 2021. With this the likelihood of two parties coming with an MOU which may include freeing Yaya Jammeh’s assets, evasion of prosecution and free to return home which will obviously jeopardize the TRRC recommendations and other Transitional Justice processes.
The Gambia Center for Victims of Human Rights Violations the sole Victims association / organization is deeply concerned that the Gambia Government may not have the political will to fully implement the recommendations of the Truth Reconciliation and Reparation Commission after its completion, simply because of bitter lessons learned from the outcome of the Commission of Enquiry into the Financial Dealings of former President Jammeh and his close associates in which the Government produced a White Paper applying the law with impunity and selective justice on key Jammeh enablers that continue to hold key positions in the government of Adama Barrow. However, it is a great concern that, despite the continued funding being provided by development partners like the UN Peace Building office, the EU, AU, ECOWAS and other multilateral donor Agencies, the Gambia Government is yet to be fully committed to the realization of the objectives and rationale of the Transitional Justice programs.
In addition, the amount of D116,000,000 (2.3 Million Dollars) of taxpayer’s money spent in drafting the Constitution was a waste of resources as the people’s hope and aspirations were jettisoned in the bin by a handful of 23 NAMs.
It is against this background that the Victims Center, seeks the support of the United Nations and the International community to advised the Government of the Gambia to continue committing itself in ensuring a successful Transitional Justice Process so that our desired goal for a more democratic Gambia, where human rights abuses which happened during the Jammeh Regime will not happen again.
We are hopeful that our concerns will be given due consideration and attention.
Sheriff Mohammed Kijera
Chairman, Board of Directors
Gambia Center for Victims of Human Rights Violations
Cc: Secretary General and Head of Civil Service – Office of the President
Attorney General and Minister of Justice
United Nations Country Representative in The Gambia
UNDP Resident Coordinator in The Gambia
United Nations Special Representative of the SG for West Africa
United Nations Office of High Commission of Human Rights
UN Peace Building Office in Banjul
US State Department
Chairman Constitutional Review Commission
Chairman National Human Rights Commission
Chairman Independent Electoral Commission
President Gambia Bar Association
European Union Delegation in Banjul
African Union Representative in The Gambia
African Commission for Human and Peoples Rights
African Rising Movement
ECOWAS Mission in The Gambia
United States Embassy in The Gambia
British High Commissioner in The Gambia
German Embassy in The Gambia
French Embassy in The Gambia
International Center for Transitional Justice – ICTJ
International Coalition of Sites of Conscience
International Coalition for Jammeh-to-Justice Campaign
Institute of Human Rights Development in Africa
National Endowment for Democracy – USA
National Democracy Institute
African Transitional Justice Legacy Fund
International Republican Institute
International Monetary Fund
African Development Bank
Islamic Development Bank
West Minister Democracy Project