Improper for President Barrow to Enter an Order of Nolle Prosequi On Its Own, Without A Motion by The Director of Public Prosecution!!!
Alagi Yorro Jallow
In a burst of action and words, President Adama Barrow demonstrated Tuesday that, in some instances, he still has the last word. Barrow granted immunity from prosecution and entered a nolle prosequi to all the defendants or officers of the Police Intervention Unit as well as the civilians standing trial for their role in the Faraba Banta incident in June 2018. At least three youths were killed, and several others injured when officers of the PIU fired live ammunition at the villagers who were protesting the mining of sand in their village.
President Barrow has sent a message to his friends and cronies that if you break laws to protect him or attack our democracy, he’s got your back. These security and civilian officers had to be prosecuted to protect the institution of justice, combating impunity, strengthening accountability, the rule of law and reinforce a culture of truth-telling.
All is fair in politics as in war. You can break the law, it is allowed – provided it will serve the purpose of advancing your gaze at illusion of power. So, if you are on Adama Barrow’s side and feel unjustness in what is going on in this democracy, just take a deep peep into history of politics and war. It is a salad of surprises, ironies and paradoxes. Any of the sides may yet serve fresher plates of these in days to come.
President Barrow and his Attorney-general and Justice Minister has the right to enter nolle prosequi, but the facts are these: the power “we shall no longer prosecute” a criminal case lies with the Director of Public Prosecution under Section 85 of the 1997 Constitution. The primary duty of the Director of Public Prosecution is to seek justice within the bounds of the law, not merely to convict, but to make use of ethical guidance in the criminal justice system based on the recommendations of the Faraba Commission. In criminal cases it has been held improper for the executive or the court to enter an order of nolle prosequi on its own, without a motion by the prosecutor. Without due process of the criminal justice system and rule of law, the action of President Barrow and his legal advisers constitutes a violation of the Constitution.
President Adama Barrow can only exercise his prerogative of mercy on individuals who are convicted and serving time. But Barrow cannot stop any court case whenever, the judiciary are exercising their judicial discretion on matters before them, the outcome of such actions should be totally free from the personal prejudices, whims and caprices of the executive. This action is a clear abuse of power and direct interference with the administration and erosion of the criminal justice system.
Since Adama Barrow has for all his acts of immunity since taking office, Adama Barrow bypassed the traditional system for granting immunity and disregard to focus instead on security officers whose cases resonated with blanket immunity his predecessors granted for security officers involved in killing unarmed civilians.
Does this departure constitute a break with the past? Is it symptomatic of changes in Adama Barrow’s Government? In one case, a public investigation loomed, and in the other case, those police officers who allegedly killed protesters with live ammunition may not face any criminal charges or prosecution because of the Indemnity Act of 1982 that was amended in 2001: “An Act to indemnify the Government or any agent of the Government or any person in the service of the Government or any authority acting on behalf of the Government for any act, matter or omission to act or thing done or purported to have been done during the period of the public emergency, and for connected matters” (Act No. 8 of 1982 amended by Act No. 5 of 2001).
After students’ peaceful demonstrations on April 10-11, 2000 during which 14 were massacred, the government amended the Indemnity Act of 1982. In both cases, the government of Sir Dawda Kairaba Jawara and the government of Yahya Jammeh created the law purposely to cover the acts and actors in these two regimes’ human rights violations against Gambians who were killed, tortured, or abused.
Both incidences in 1981 and 2000 involved human rights violations and crimes against humanity for which someone must be held accountable. These victims, who demand and need justice for closure, have been denied this because of the Indemnity Act, a law that indemnifies the government’s killings and torture by psychopaths. In other words, no one took public accountability for their actions.
The top executives’ political responsibility for mistakes, disasters, or political failures is regarded as an entrenched democratic principle linked to public accountability in many countries.
As one of many critics who saw Tuesday’s presidential immunity and the dangling of other immunity actions as a strategy to ensure loyalty within the security’s own circle.
Advisers and analysts said Adama Barrow seems delighted by his executive power. It’s a way President Barrow telegraphing that he’s in control of everything, including the Combined Security Forces as their Commander In- Chief.
But such immunity was only some of those issued. There’s never been a time when this was the only thing the president was doing, and he was doing these kinds of special deals without any evident recognition that there was an actual program of pardoning that was open to ordinary Gambians that really need relief with the Justice Ministry and office of the President.
Rather than go through the Justice Ministry, Adama Barrow considers cases brought to him directly by his Attorney General as when for example last year, around August Gambians woke up to the news that aconvicted Norwegian pedophile, Svein Aage Sandåker, was pardoned by Adama Barrow. The Justice Ministry’s official twitter handle responded to “clarify” that the pedophile was “being handed to Norwegian authorities for prosecution.” One problem with that narrative was that the initial press release from the same Justice ministry clearly stated that the President used his “prerogative of mercy to GRANT PARDON…” The Norwegian authorities have also made a statement that they are not involved or aware of the man’s release.Whether Norwegian pedophile is still serving jail time Mile II Central Prison or pardoned by President Barrow remains unclear.
The Gambia’s biggest problem isn’t the failure or incompetence of ‘independent’ agencies or the institution or the people working there. The issue isn’t tribalism as such and as the public are made to believe – it is impunity and it is all about money, it is abuse of power by those who wield it and have done so for years so need to protect their long history of misdeeds, misusing supposedly arms-length agencies like the military, intelligence agency, the police and even judiciary. Anyone from these combined ‘independent’ institutions, who tries to go against the grain faces huge challenges of carrots (mouth-watering bribery/inducement – cash or political jobs) and/or sticks (tax investigations, revival of any past wrongdoing previously ignored, harm to self and/or family, including death threats.
Power acquired in questionable ways will be protected and defended in questionable ways – a vicious cycle that will continue to impoverish current and future generations for decades, until Gambians unite against destructive selfish elite strategies to tribalize everything: