Dear Mr Mbai,
Thank you for the great stance on the selective justice and outrage with regards to witnesses at the TRRC. Fair is fair and the process must be impartial.
The TRRC Act and Law has deficiencies and the cast of characters running the TRRC are increasingly showing their prejudices and that is a disservice to the victims and our Nation.
I agree with your stance and analysis on this matter.
TRRC Act has unconstitutional powers and puts witnesses in legal jeopardy.
The TRRC Act and Law are deficient and the powers of the Commission are not only excessive but infringe on centuries old human and civil rights and therefore need to be corrected as soon as possible or we will see the TRRC become an instrument of vindictiveness, malicious and selective justice and persecution.. a 21st century Inquisition. A witness before the TRRC like JC Mendy is the proverbial woman accused of witchcraft, she is tied up and dumped in the lake, she floats and she is a witch and burned at the stake; she sinks and dies and is innocent.
Witnesses to the TRRC may be well advised to take a lawyer with them because on one hand, the TRRC has the power to compel witnesses to give testimony at the risk of being held in contempt;
Yet if the witness does withhold evidence or information or state his or her version and the high and mighty TRRC finds that not “truthful”, the witness can be charged with perjury ie lying to the Commission.
Yet it is a fundamental right of citizens, defendants and witnesses that they cannot be compelled to give evidence against themselves and they have the right not to self incriminate.
Implication that the TRRC Act and Law suffers from not only poor draftmanship but may be fundamentally flawed and have some of its elements unconstitutional especially Section 15 (4): A person who fails to answer to a summons or subpoena issued by the Commission or fails answer questions of the Commission after responding to a summons or subpoena, or intentionally providing misleading or false information to the Commission shall be deemed equivalent to contempt of court and may, be referred to the High Court for trial and punishment.
The draftsmanship shows incompetence and yet this passed the MOJ, the National Assembly and even has UN backing while fundamentally reversing ages old convention with regard to the right not to self implicate is disappointing. It is a kind of “victors’ justice” that is never sustainable nor conducive for national reconciliation, peace and development and therefore at complete odds with broadcast objectives of the TRRC being:
13.Objectives of the Commission
The objectives of the Commission are to –
(a) create an impartial historical record of violations and abuses of human rights from July 1994 to January 2017, in order to-
(i) promote healing and reconciliation,
(ii) respond to the needs of the victims;
(iii) address impunity; and
(iv) prevent a repetition of the violations and abuses suffered.
(b) establish and make known the fate or whereabouts of disappeared victims;
(c) provide victims an opportunity to relate their own accounts of the violations and abuses suffered; and
(d) grant reparations to victims in appropriate cases.
The TRRC should suspend hearings and take up the challenge of ensuring that the TRRC Act and Laws are in line with the highest norms of international human and civil rights and even Section 24 of the 1997 Constitution on Provision to secure protection of the Law and Fair Play.
What we needed and what was agreed in the ECOWAS-AU-UN Agreement on the Peaceful Resolution of the Post-electoral Impasse in The Gambia as per clause 9 was ” In order to avoid any recriminations, ECOWAS, the AU and the UN commit to work with the Government of The Gambia on national reconciliation to cement social, cultural and national cohesion.”
The current manner in which the TRRC Act and Law and Commission are being implemented are not conducive to national reconciliation nor cementing social, cultural and national cohesion.
The Hon Minister of Justice and AG in his guise as a “Struggler” and so called “Human Rights Champion” has failed this historic opportunity to promote reconciliative justice rather than retributive justice and has given the TRRC to many parties that cannot be accepted as impartial and if the TRRC was a jury, many would not have passed the impartiality and non conflict test.
HE The President has the ultimate responsibility to correct this and secure the peace.
Written By Pa Musa Jallow