PRESS RELEASE - Democracy Watch Gambia
Thursday 25th April 2019
Re: The Ongoing Truth, Reconciliation and Reparations Commission (TRRC)
Following the Press Statement by the TRRC Lead Counsel, on Tuesday 23rd April 2019 the Democracy Watch Gambia (DWG) wishes to raise a few pertinent points and make public its concerns with respect to certain aspects in respect of the subject matter.
The Rules of the TRRC
The Lead Counsel pronounced to the effect that the Procedural Rules which are currently being used by the TRRC (the Commission) “…dated 7th January 2019 are still in draft pending confirmation...” Effectively, witnesses (including those suspected of having committed offences) are having evidence adduced from them under oath in circumstances whereby the Rules governing such statutory exercise are unclear, uncertain or shrouded in secrecy – their existence and substance remain an enigma.
This state of affairs is undesirable and must not be allowed to continue to prevail. Additionally, s.21 TRRC Act 2017 in mandating the Commission to make its own Rules of Procedure dictates that such power must be exercised in accordance with the “…rules of natural justice…”
Accordingly, we urge the Commission to in the interest of justice and fairness address this anomaly as a matter of urgency.
Legal Representation for Witnesses
The Lead Counsel alluded that Witnesses (suspected of having committed offences) under the Rules of the Commission are permitted legal representation. However, it is unclear whether such representation is available at Public expense.
We hereby politely request clarity (from the Commission or A.G) on this issue. Additionally, if such representation is not publicly funded, in the interest of justice and fairness we would strongly recommend that legal representation in this regard be made publicly available at public expense.
The Arrest and Charge of TRRC Witnesses
The Lead Counsel reiterated the power of the Commission under s.15(1)(h) (i) to request Police assistance and or make referrals for prosecution of suspects and, confirming that the Commission is yet to exercise this power, states that those witnesses who have been arrested and charged following their appearance at the Commission were arrested and charged “…under the instructions of the Attorney General (A.G) as per the dictates of the Constitution…” or words to that effect.
We would use this opportunity to rectify the Lead Counsel and for the benefit of the general public set the record straight – the A.G has no legal Authority (whether Constitutional, statutory or otherwise) to give “instructions” to cause the arrest of anyone whatsoever. In a democratic society, unlike in a dictatorship policing & law enforcement is not conducted at the behest of or under the command of political authority. The A.G’s brief is policy formulation within the Justice Ministry and the provision or facilitation of legal advice to the Government of The Gambia (GoTG). His brief does not extend to “instructing” on operational matter of the Police and or investigators under any capacity.
The authoritative clarification by the Lead Counsel of the involvement of the A.G in the manner described confirms the common suspicion of many at the material times. This level and manner of blunt interference with law enforcement and justice administration by someone whom the GoTG looks up to for legal advice (the A.G) most especially at a time when the nation is reeling out from and, in the solemn process of healing from those wounds which were inflicted (as a consequence of impunity and disregard for the rule of law) upon society, public & democratic institutions and individuals, is extraordinary and grotesque. As stated in our letter to the GoTG dated 8th April 2019, such legally questionable conduct deserves immediate corrective action, something which is unfortunately yet to happen.
The TRRC was set up to look into atrocities of the past and, it is ironic and self defeating for the very architects of such noble exercise (GoTG) to engage themselves in legally questionable conduct and victimization of the sort which necessitated a need for this TRRC in the first instance.
The DWG on the 17th April 2019 wrote to the office of the A.G in an attempt to constructively engage the Minister on this very important question and others of concern to us, however, an acknowledgment and or response to this effect is yet to be received. We are inclined to believe that the A.G as a Minister of State of a democratically elected government, unlike his infamous predecessors takes his responsibilities seriously and is not on this occasion seeking to evade public accountability. That said, we hope that a response from the office of the A.G in respect of the subject matter will be forthcoming in due course.
The Lead Counsel states that “…we cannot sit here and pretend that the government can give reparation to everyone…” which is a very significant commentary. It is worthy of note that under s.20(1) it is stated that “…the Commission may grant reparation to an application who is a victim…” it is further stated under s.20(2) that “…The Commission may make regulations for the granting of reparations under the Act…”
Bearing in mind that the Commission unlike the GoTG does not have access to the Treasury (does not have control of Sovereign funds) we are concerned that the level of reparation anticipated under the TRRC Act is significantly inadequate and may not justly restore the victims. Whilst this provision in question (s.20(1)) may not have been drafted in order to intentionally and unjustifiably limit the level of reparation made available to victims and or, statutorily prevent / bar the use of Government (public) funds to adequately restore victims, we are gravely concerned that this is actually a likely prospect by virtue of the existing law - it unfairly pitches the financial interests of the Commission against those of the victims which is very undesirable. We would politely request clarity (from the Commission or A.G) on this fundamentally important fact.
Additionally, in light of the significant commentary (referenced above) on the subject by the Lead Counsel which appeared to suggest an inclination to limit victims’ reparation, clarity is sought (from the Commission) on how and to what extent the above significant commentary by the Lead Counsel informs or will inform the exercise of the Commission’s duty in respect of s.20 - power to make regulations for the granting of reparations to victims. We would also politely request clarity on the extent to which the victims will be given a meaningful say on, and or availed publicly funded legal representation (which is independent of the Commission and the GoTG) to have their interests legally represented in respect of the subject matter (regulations on reparations).
Independence and impartiality of the Commission
In light of the emerging facts in respect of gifts by the Lead Counsel to at least one witness, the use of the Commission’s platform by third parties for the aforementioned purposes and subsequent comments by the Lead Counsel regarding the subject matter, we would politely remind the Commission of its obligations with respect to impartiality as per s.6 of the Act. Additionally, such acts (regardless of intention and motive) apart from appearing to or potentially having the effect of creating a friction among victims raises serious ethical and professional conduct questions which even when viewed favorably does not put the Commission in good light. Such could undermine the credibility of the Commission and, hamper the important and arduous work it has been tasked.
In the Public interest and the integrity of the Commission, we strongly urge the Commission to publicly reconsider its position on this issue. Our humble advice is, that all such acts of benevolence by third parties and members of the public should be appropriately signposted to the Victims’ Centre.
Accordingly, we hope that the the Commission would in future ordinarily do its utmost best to avoid giving rise to situations and states of affairs which may give rise to its reputation, credibility and or impartiality being called to question.
The DWG remains ardently supportive of the object of the TRRC and we applaud the efforts of the Commission in pursuit of the same.
Democracy Watch Gambia