Debates concerning justice and resources are a familiar feature of transitional justice, particularly after a legacy of human rights violations. It is becoming increasingly clear that without adequate resources government may not be able to deliver the right justice to meets the victims’ expectation. Therefore, it is necessary to distribute liabilities between parties at fault, so as to provide the right remedies for injuries and losses suffered. The meaning of justice is highly contested because of its relativity. But as the ultimate goal of the rule of law, justice implies that all criminal acts must be punished and victims’ injuries must be fairly remedied to promote peace and stability. For the Gambia, it encompasses criminal accountability for the perpetrators of the human rights violations as well as accountability for economic actors that had breached the principles of good governance, while dealing with the former regime. Good governance requires economic and non-state actors to partake in the promotion of human rights as well as enhancing better management of public resources.

As resources are critical to proper administration of justice, this raises the question whether the Gambia government alone can deliver justice given its dire economic situation. The dire situation is in part caused by colossal debts of more than one billion dollars acquired under its autocratic regime.  A population of just over two million people, the debts seem relatively big given the size of its economy. What is striking is that the creditors could not employ any creditable measures that could curtail mismanagement of public resources and human rights violations. Despite this, the government was allowed to acquire loans in the name of Gambians, knowing that there can hardly be a proper democratic accountability. It still remains a mystery as to the way in which these loans were spent. But what is less obvious, is the dire status of the Gambia’s economy with increasing level of poverty..

It is perfectly coherent to claim that Justice can only be served, if the creditors demonstrate sensitivity to Gambia’s situation by writing off the debts acquired under the autocratic regime. Seemingly, the creditors would have been aware of the fact that, the Gambia’s economy was one man’s bandwagon economy that benefited more of those in government’s inner circle than public interests. Obviously, the financial reforms recommended by the IMF in its successive Article IV Consultation reports seem to have failed to convince the government to adopt principles of good governance, resulting in accumulation of unnecessary debts.

 Drawing on Aristotle’ view of substantive justice, which espouses a fair distribution of liabilities for the ‘collective good’ of the society, I suggest creditors to act justly and ensure that the Gambia’s economy is not stifled by its debt repayments. In this sense, restoration is a mending process where all parties pay their fair share towards the restoration of injuries and economic loss suffered during the repressive regime. It follows that ‘‘all principles of justice are principles of allocation’’.

While I accept the point that transitional justice must be delivered in a way that promotes reconciliation, national unity consideration must not be used as a mean to absolve the perpetrators from their criminal liabilities. The very point of justice is fairness which involves striking the right balance between the need for punishment and the victims’ right for justice. Although there is no means of calculating the weight of the conflicting interests in question, the’ balancing’ task must take into account the available resources at hands in order to protect the interests of the whole community.

Generally, restorative justice is regarded by many legal scholars and lawyers as an effective problem–solving model that brings together, the victims, the perpetrators, and the community as a whole to reflect on historical crimes, in order to finds way to repair the injuries and the losses to the victims, the model is undoubtedly sensitive to the needs of the population affected by serious human rights violations’. Although it pays particular reference to victim right to a fair remedy, what constitutes of a fair remedy seems elusive. The remedy awards to victims is always dictated by available resources and the effectiveness of the compensation scheme in place.

 Importantly, the government must not adopt lukewarm approach in addressing victims concerns to maintain public confident in the justice system. Of course, dealing with the acts of the prior regime can cause political tension, and even sometimes fist throwing moments, as politicians try to figure out the best way to serve justice efficiently. Nonetheless, justice can be instrumentally justified once the citizens are made aware of the benefits of the mechanism in place to deliver it. It is true that a society that attempts to come to terms with a legacy of large-scale past abuse is always marred by tensions. That tend to have profound effects on the stability of the nation.  At times, these tensions are better resolved by repentance and reconciliation to promote social harmony. Similar proposition is espoused by Hart in The Concept of Law as he said that the criminal liabilities are better accommodated through restorative justice.

On the other hand, it is unclear whether a reconciliation models have impending deterrence effects on the behaviour of perpetrators. Certainly, they have not deterred the perpetration of heinous crimes committed in Ivory Coast, Kenya, Liberia, Sierra Leone, and The Gambia. The Kenyan National Dialogue and Reconciliation Process offers a telling example of how a reconciliation mechanism failed to provide justice for the victims of post-election violence, as there was no ‘goodwill’ on the part of one of the state’s organ. Such failings cast doubt on the effectiveness of reconciliation mechanism to render justice.  Therefore, government must get the balance right.

There can be no doubt that justice entails fair and proportional allocation of liabilities between parties. With this regard, it seems just to hold the economic actors if they were complicit in the former government wrong doings. Although consideration to popular sovereignty might have justified their inaction, but as agents of global governance they are required to apply measures that are geared to prevent serious human rights violations. Given the fact that it cannot be said if this had happened or not. In my view, at the very least, they are morally bound to facilitate the process of restoration of injuries and losses in the Gambia. The recent $60 million pledge made by the World Bank to fill the ‘Gambia’s empty coffer’, must serve as an exemplary for others. Albeit the amount pledged can be seen as ‘a drop in the ocean’ if one compares it to the Gambia’s lingering debt, nonetheless, it efforts deserve commendation. I envisage that the economic actors will follow suit to elevate Gambians’ sufferings.

In conclusion, it is a glaring fact that ordinary Gambians’ interests were marginalised under the autocratic regime as they were less engaged in the decision making process. Therefore, the debts incurred cannot be based on the informed consent of the citizens. The human rights violations and mismanagement should have served as alarm bells for the economic actors so as to employ measures necessary to uphold good governance principles. Rightly so, it is more plausible to suggest that the Gambia’s debts deserve to be written off for the interest of justice and fairness. Such decisive measures will greatly help the new government to deliver ‘substantive justice’ for the victims.

Forward with the Gambia!

Solomon Demba

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