By Rtd Lt Colonel Samsudeen Sarr
For the first time, Gambians have been given a closer look at the machinery that is supposed to turn the Truth, Reconciliation and Reparations Commission’s findings into criminal prosecutions.
Last week, Special Prosecutor Martin Hackett and his team held a town-hall meeting with some of the country’s leading lawyers, members of the Gambia Bar Association, a university law lecturer and students, as well as journalists. The meeting lasted about two hours and, for me, revealed something rather important about the journey from the TRRC’s findings to a criminal conviction that may be much longer, more complicated and more expensive than many Gambians imagined.
Mr. Hackett, a British barrister with more than three decades of experience in criminal and international law, made one point particularly clear. His office, the Special Prosecution Office (SPO), will certainly use the TRRC recommendations as an important starting point. But it cannot simply pick up the TRRC files, dust them off and march straight into court.
Every serious case must be investigated afresh.
Evidence must be collected, tested and corroborated. Witnesses may have to be interviewed again. The circumstances surrounding each alleged crime must be established. The legal responsibility of each individual must be determined. And, above all, the evidence must be strong enough to survive the rigorous environment of a criminal courtroom, which to me, is a significant revelation.
It suggests that a TRRC recommendation is not the same thing as a criminal case ready for prosecution.
This should not necessarily be interpreted as an indictment of the TRRC. A truth commission and a criminal court have different jobs. The TRRC was principally concerned with establishing the truth about a troubled period in our history, giving victims a voice and recommending measures for accountability. A prosecutor, on the other hand, has to prove a particular criminal case against a particular individual according to the rules of evidence and criminal procedure.
The difference is enormous.
I was therefore pleased to hear Mr. Hackett repeatedly emphasise fairness—not only to victims but also to people accused of crimes. Defense lawyers, he stressed, must be allowed to do their job. No accused person should be shouted down, intimidated or deprived of proper legal representation simply because the allegations against him are emotionally powerful.
That principle naturally took me back to the TRRC.
I personally know what it feels like to be accused without being given the opportunity to properly answer the accusation. The Commission publicly associated me with alleged crimes through testimony that I strongly disputed, yet I was not allowed to appear before it to defend myself. The Government’s White Paper subsequently acknowledged that I had not been afforded an opportunity to respond and found that this was inconsistent with my right to a fair hearing.
That experience explains why I listened particularly carefully when Mr. Hackett spoke about due process.
The SPO’s task, however, is not only a legal mountain. It is also a financial one.
Investigating crimes committed more than a decade ago will require investigators, forensic experts, prosecutors, witness protection, evidence-management systems and considerable logistical resources. There is nothing inexpensive about reconstructing crimes that occurred years ago across different locations, involving witnesses who may have disappeared, died or forgotten important details.
And then comes the question of the proposed special or hybrid court.
The idea of combining Gambian law and expertise with international standards and experience is attractive in principle. But the legal foundation, jurisdiction, financing and relationship with the Gambian Constitution and existing courts will require careful examination. One lawyer at the meeting raised precisely that concern, while another pointed to precedents involving international or hybrid justice mechanisms.
These are not small technicalities. They go to the heart of whether the eventual court will be legally sound and capable of surviving challenges.
Perhaps nothing illustrates the difficulty better than the case of Sanna Manjang.
At the TRRC, Manjang was portrayed as one of the most notorious members of the so-called Junglers, with testimony after testimony associating him with some of the most serious crimes of the Jammeh era. Yet after his eventual return to The Gambia, the murder charges initially brought against him were withdrawn and replaced with assault charges. He is also facing a military case relating to alleged desertion.
Whatever one’s personal feelings about Manjang, the episode provides an important lesson. That being described as a notorious perpetrator at a truth commission does not automatically produce a criminal conviction in a court of law.
And that, perhaps, is the real story behind the SPO.
Many Gambians understandably want to see the perpetrators of the Jammeh era brought to justice. Victims and their families have waited for years. But justice cannot simply mean satisfying public anger. It must also mean satisfying the law.
At the town hall, the lawyers asked sophisticated questions, sometimes in the kind of highly polished legal English that could make an ordinary Gambian wonder whether a courtroom had suddenly been transported into the meeting hall!
But beneath all the legal terminology was a simple question of whether the SPO can actually prove these cases.
My answer, for now, is that we simply do not know.
What we do know is that the TRRC has opened the door, but Mr. Hackett’s office has discovered that there is still a long corridor to walk before reaching the courtroom.
There will be investigations, challenges, defense lawyers and questions about evidence, jurisdiction and resources. And, inevitably, there will be disappointments.
I am generally an optimist. But on this particular matter, I have serious reservations about whether the SPO can complete such an enormous undertaking within the timeframe many Gambians expect.
It may take years. It could take much longer.
The victims deserve justice, the accused deserve due process and, certainly, The Gambia deserves a process that is sufficiently strong that, when the final verdicts come, nobody can reasonably say that justice was achieved by abandoning the very principles of law that were supposed to deliver it.
The TRRC told us where to look and the SPO must now prove what actually happened. That is a very different—and much harder—job.