The Special Tribunal for The Gambia: A Regional Experiment in Transitional Justice and Its Challenges

The Gambia is enterprise an unprecedented experiment in transitional justice. On 15 December 2024, the Financial Neighborhood of West African States (ECOWAS) formally established the Particular Tribunal for The Gambia, a hybrid court docket designed to prosecute crimes dedicated beneath the authoritarian rule of Yahya Jammeh between 1994 and 2017.

Not like earlier hybrid tribunals, such because the Particular Courtroom for Sierra Leone or the Extraordinary Chambers within the Courts of Cambodia, the Particular Tribunal for The Gambia is the primary tribunal arrange by a regional group to deal with home mass atrocity crimes.

The Tribunal raises a number of jurisdictional and operational questions. How do findings of the Fact, Reconciliation and Reparations Fee (TRRC) inform prison prosecutions, and what authorized points could come up in translating truth-telling into prison accountability? Can a hybrid tribunal function successfully when essentially the most accountable determine resides overseas, past the attain of regional enforcement mechanisms? What constraints do political realities impose on the pursuit of justice? This put up examines the Particular Tribunal’s origins, mandate, jurisdictional and authorized challenges, and its broader implications for regional transitional justice in Africa.

Origins and Authorized Foundations

The Particular Tribunal for The Gambia emerged within the aftermath of Jammeh’s electoral defeat in December 2016 and his subsequent exile to Equatorial Guinea. President Adama Barrow’s authorities was confronted with the problem of making certain accountability for previous human rights violations whereas consolidating democratic governance. Home courts, nevertheless, lacked the capability to prosecute high-ranking officers with out jeopardizing judicial independence or nationwide safety.

In response, the Gambian authorities established the TRRC in 2018 pursuant to the Fact Reconciliation and Reparations Fee Act (2017). The TRRC collected testimony from almost 400 witnesses and produced a 16-volume report detailing widespread human rights abuses, together with extrajudicial killings, enforced disappearances, torture, and sexual violence. It recognized the Junglers, a paramilitary unit straight beneath Jammeh’s supervision, as principal executors of repression. Nonetheless, whereas the TRRC laid the evidentiary basis, it had no prosecutorial powers, leaving the Gambian administration to hunt complementary judicial mechanisms.

ECOWAS’s involvement was each political and authorized, and its help offered two important assets: legitimacy and technical experience. The Particular Tribunal for The Gambia will thus represent a hybrid court docket, working beneath Gambian legislation with Gambian and worldwide judges, prosecutors, protection groups, and different personnel.

Jurisdiction and Mandate

The Particular Tribunal’s jurisdiction is proscribed however strategically important. Underneath the Particular Prosecutor’s Workplace Act, 2024 (Act), the tribunal could prosecute “instances of great human rights violations and worldwide and home crimes” dedicated between July 1994 and January 2017. The tribunal will thus presumably cowl extrajudicial killings and enforced disappearances, arbitrary detention and torture, sexual and gender-based violence, together with rape and sexualized torture.

This jurisdiction aligns with worldwide norms, together with Article 7 of the Rome Statute and the Conference towards Torture and Different Merciless, Inhuman or Degrading Therapy or Punishment, each ratified by The Gambia. It additionally displays the nation’s willpower to pursue a real path towards accountability.

Part 11(2) of the Act grants the Particular Prosecutor appreciable discretion in figuring out the suitable court docket for prosecutions. Relying on the gravity and nature of the offence, the suspect’s place of authority, and the pursuits of victims and the group, the Particular Prosecutor could provoke proceedings earlier than the Particular Tribunal or the Particular Prison Division of the Excessive Courtroom. With the Lawyer Basic’s approval, instances can also be referred to a world court docket with related jurisdiction. After session with the Director of Public Prosecutions, the Particular Prosecutor retains the facility to switch or take over instances every time required to safeguard effectivity and the pursuits of justice.

Furthermore, two distinct prosecutorial avenues emerge from the Act. First, the Tribunal could pursue instances explicitly advisable for prosecution within the TRRC Report. Second, the Particular Prosecutor could provoke proceedings arising from additional investigations into the TRRC’s findings. Within the latter state of affairs, pursuant to Part 12(2) of the Act, “the Particular Prosecutor shall search the approval of the Lawyer Basic to prosecute any one who was not advisable for prosecution by the TRRC”. This provision underscores the structural want for cooperation between a Particular Prosecutor (presumably worldwide), and the Gambian Lawyer Basic, thereby reflecting the hybrid nature of the Tribunal.

Part 13 supplies that the Particular Prosecutor shall have primacy of jurisdiction over instances throughout the Tribunal’s mandate beneath Part 12. The Act additional grants broad investigative powers (Part 16), measures for the safety of victims and witnesses (Part 18), and entry to worldwide technical help (Part 24). These provisions are meant to allow prosecutions that meet the evidentiary requirements required beneath worldwide legislation.

Authorized and Sensible Challenges

Admissibility of TRRC Findings in Prison Proceedings and Protecting Measures

The Particular Tribunal for The Gambia’s reliance on TRRC findings introduces each alternatives and challenges. On one hand, the TRRC supplies a strong evidentiary base, together with witness testimonies, paperwork, and knowledgeable analyses. However, the TRRC was not a judicial physique: it operated beneath a truth-seeking course of. Guaranteeing that proof collected beneath a reality fee can meet prison requirements of proof can be a fragile activity, significantly given the potential for contested witness credibility and procedural objections. In the middle of future trials, authorized arguments will come up relating to the admissibility of TRRC proof and its chain of custody amongst different points.

This will result in a slower development in direction of a verdict; nevertheless, it have to be borne in thoughts that the precept of a good trial additionally requires shut scrutiny of the authenticity and reliability of evidentiary materials, within the pursuits of each victims and defendants.

It should even be taken into consideration that not all witnesses heard by the TRRC can be keen to testify publicly earlier than the Tribunal, significantly survivors of sexual violence. The Tribunal will due to this fact have to undertake particular protecting measures, resembling closed or personal periods, voice distortion, video pixelation, or the usage of witness numbers to ensure anonymity, to make sure that witnesses can recount their experiences freely, with out worry of public stigma or retaliation.

Jurisdiction over a Former Head of State, Extradition and Judicial Cooperation

One other authorized impediment is prosecuting Yahya Jammeh, at present residing in Equatorial Guinea. Underneath worldwide legislation, former Heads of State don’t get pleasure from immunity for crimes towards humanity or torture; nevertheless, sensible enforcement is constrained by political will. Equatorial Guinea is exterior ECOWAS jurisdiction and has proven little inclination to give up Jammeh.

Whereas ECOWAS might theoretically exert diplomatic strain, its authority is essentially political, missing binding enforcement mechanisms. African Union favor non-interference in home affairs, limiting recourse to obligatory measures. Referral to the United Nations Safety Council is technically potential however politically unbelievable, given the veto energy of everlasting members. Thus, the tribunal faces a jurisdictional hole: its authorized authority is obvious, however its sensible capability to prosecute Jammeh depends upon worldwide cooperation that’s removed from assured.

A complementary mechanism can be a bilateral extradition treaty between The Gambia and Equatorial Guinea. No such treaty at present exists, and advert hoc negotiation would require sustained political dedication from each states. Even when an settlement have been reached, compliance wouldn’t be assured; Equatorial Guinea might invoke completely different causes as nationwide safety to refuse give up. The absence of enforceable extradition obligations exposes the Tribunal’s structural vulnerability: its effectiveness rests much less on legislation than on diplomacy and negotiated political will.

Interplay with Common Jurisdiction

Common jurisdiction has already been exercised towards mid-level perpetrators: trials in Germany, Switzerland, and america have resulted in convictions of former Junglers members and the previous Inside Minister Ousman Sonko. These prosecutions, nevertheless, reveal that it’s persistently simpler to pursue low and mid-level perpetrators, whereas bringing to justice these on the highest ranges of authority stays significantly harder.

A Future Authorized Concern in Africa?

The Gambian expertise has implications past its borders. Transitional justice after authoritarianism is at all times a balancing act: reality commissions can doc violations, however with out prosecutions they danger producing recognition with out accountability. Conversely, prosecutions with out dialogue with society could seem externally imposed.

The Gambia has tried each: a reality fee adopted by a Particular Tribunal. It’s value noting that this suggests that truth-seeking can lay the groundwork for prosecutions if coupled with sustained political will and worldwide help (particularly technical).

The broader query is whether or not The Gambia’s mannequin can be emulated elsewhere in Africa. May ECOWAS, and even the African Union, take a extra assertive position in establishing hybrid courts for mass atrocity crimes? Or will the Particular Tribunal stay an distinctive experiment, examined by the problem of prosecuting Jammeh?

Conclusion

The Gambia’s transitional justice course of, comprising an intensive reality fee, universal-jurisdiction trials, and now a regional hybrid tribunal, is formidable. Nonetheless, ambition alone can not assure real accountability. Until Yahya Jammeh and different senior officers face trial, the Tribunal dangers turning into a case of selective justice. Whether or not it turns into a authorized mannequin or a cautionary story hinge on the alignment of key authorized variables: sturdy procedural safeguards (together with witness safety and fair-trial requirements), the flexibility to translate reality into admissible prison proof, regional and worldwide cooperation, and political will, all preconditions to forestall impunity for atrocity crimes.