Ba Tambedou v Mai Fatty: Will The NIA 9 Be Freed Soon?

For those unaware this is what happened yesterday 23 March 2017.

  • First, Justice Minister and Attorney General, Ba Tambedou, called a press conference and criticised the haste with which the police investigated, arrested and charged the NIA 9 in the case of Solo Sandeng’s murder. The police are as we all know under the Interior Ministry.
  • Then, Interior Minister Mai Fatty responded with a press release congratulating the police actions – and pointed out that if the NIA 9 had not been arrested as soon as possible they would have absconded and left the jurisdiction of The Gambia.

It is clear from social media discussions that 99% of Gambians support Mai Fatty for ensuring that these particular individuals were arrested and charged as soon as possible.

Ba Tambedou has a different approach:

  • … encouraging open discussions about the past and fostering national reconciliation through the establishment of a Truth and Reconciliation Commission. Any action, particularly in these early days, must be geared towards achieving that objective. Any other action that runs contrary to this spirit at this moment in time is both unwise and potentially dangerous. As leaders, we will have to make some hard choices. Difficult decisions form part of the burden of leadership. We must lead by example and at times, even lead public opinion in the supreme national interest”.

As in South Africa, “Truth and Reconciliation” may be seen by the ordinary citizens as the new rulers’ way of say “don’t rock the boat” – and may not infact offer any justice to the victims at all. In The Gambia, as in South Africa, what the victims of Yahya Jammeh’s brutality want to see is justice for the victims. And so the majority may applaud Mai Fatty for taking the steps that he did to ensure that the NIA 9 will face justice for Solo Sandeng’s murder. I think any attempt to “lead public opinion” on this matter (and let the NIA 9 go free) will end up alienating the public – something that Mai Fatty the politician is far more sensitive to than Ba Tambedou the lawyer. Lawyers don’t care about public opinion but politicians do.

In my opinion, Mai Fatty is on solid grounds in this case, but it does not end there!

Quotes from Ba Tambedou’s Press Conference (copied in full below)

Jammeh Era alleged criminals re-assured:

  • Ba: “no new criminal cases involving crimes allegedly committed by the former government will be handled by the Ministry unless they are thoroughly and comprehensively investigated …”

Police investigations to be overseen by Justice Ministry

  • Ba: “It is preferable that criminal investigations and evidence collection be guided by the Justice Ministry right from the start … no new criminal cases involving crimes allegedly committed by the former government will be handled by the Ministry unless they are thoroughly and comprehensively investigated, and until the Ministry of Justice is also ready in terms of its capacity, resources, and logistical needs, and only after the approval of cabinet”

 Finally, Mai Fatty and the police warned!

  • Ba: “our judiciary will be expected to assert their judicial independence and will vigorously scrutinize every piece of evidence presented by the prosecution as required in any normal criminal proceeding”.

What is gonna happen here? Will we see Mai Fatty or Ba Tambedou resigning? I think it will depend on the National Assembly Elections next month: a UDP landslide with a handful of votes for the GMC will mean Mai Fatty will solidify his position.

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The full story from Freedomnewspaper:

Ba Tambedou’s Press Conference

“I called this press briefing today to provide information about some of the activities of the Ministry of Justice over the past few weeks:

  • The first item I want to talk about is the international cases The Gambia is presently involved in. You may or may not be aware but this government has inherited some international cases which were filed against The Gambia as a result of the purported acts of the former government. Consequently, The Gambia now faces a potential legal liability bill in excess of two billion dalasis. The Ministry of Justice is currently exploring various options for a quick resolution of these cases so that we can put them behind us and focus on the important task of rebuilding and strengthening our justice system.

  • The Ministry of Justice has also been in contact with some international organizations including Article 19, the Westminster Foundation for Democracy, the Commonwealth Parliamentary Association, and the International Bar Association in order to seek support for the justice sector reforms. In consultation with the Ministry of Information and Communication Infrastructure, we will be reviewing a draft Memorandum of Understanding on a tripartite partnership between the Ministry of Justice, The Gambia Press Union and Article 19 in respect of reform of the media laws in the country.

  • The Ministry of Justice was also able to secure assistance from the International Senior Lawyers Project in specialized areas of legal practice such as preparing, drafting and reviewing international commercial agreements to cover capacity deficit in the Ministry in the short term. A senior lawyer will be seconded from this organization to the Ministry very soon at no cost to government.

  • The Ministry is on the verge of creating the post of Special Advisor to the Attorney General whose principal responsibility will be to provide policy advice on the justice sector reforms envisaged by the Ministry. The post will be funded by the British Government and applications will soon be invited from suitably qualified Gambians to fill the post.

  • The Ministry is also exploring other ways of shoring up capacity at the Ministry through donor funding of local support initiatives. We are looking at the possibility of hiring members of the private bar on contract as a stop gap measure while the capacity of existing resources within the Ministry is being strengthened in key areas.

  • In terms of ongoing activities at the Ministry, I wish to highlight some of the most urgent ones:

  • The Criminal Case and Detention Review Panel has already started its work. This panel was established by the Ministry of Justice in consultation with the Ministry of Interior to review and advise the Attorney General regarding the ongoing criminal cases against serving or former public officers, cases linked to a political activity, and the cases of all persons awaiting trial in remand. The membership of the Panel consists of lawyers from the Ministry of Justice, staff members from the Ministry of Interior, a representative from The Gambia Police Force and The Gambia Prison Service. I have started receiving their recommendations on a rolling basis and I will act based on this.

  • In consultation with His Excellency The President and my cabinet colleagues, the Ministry is in the process of finalizing the draft terms of reference for the establishment of a commission of inquiry to look into the financial and business related activities of the former president. The commission is expected to start its work soonest.

  • Meanwhile, the Ministry of Justice will be writing soon to all government departments, agencies and organs advising them to suspend all bilateral contractual engagements with certain identified companies pending a review of the contractual arrangements with them.

  • Finally, the Ministry of Justice has requested the police to conduct a more thorough investigation into the case of the NIA 9. I wish to state for the record, that this is in no way a reflection of the work of the police. They too have come under a lot of pressure to conduct a complex investigation within a very short time. This is why we must always endeavour to investigate before arrest rather than arrest and then investigate.

  • Criminal investigations must never be rushed. They require careful planning and strategizing and will often involve specialized investigation techniques which may not be readily available in this country. Otherwise, there is a real risk of missing or losing crucial evidence which can lead to the collapse of an entire case at trial. This is why it is preferable that criminal investigations and evidence collection be guided by the Justice Ministry right from the start.

  • We must recognize that we are now operating under a new and different judicial climate and that our judiciary will be expected to assert their judicial independence and will vigorously scrutinize every piece of evidence presented by the prosecution as required in any normal criminal proceeding. That is why we must also adhere to due process. Anyone familiar with serious criminal prosecutions will understand and appreciate the challenge of proving beyond reasonable doubt every element of a crime charged and the modes of liability alleged. Hence the importance of thinking through certain matters and taking great care before acting.

  • The priority at this moment is to rebuild the justice system of our country and strengthen capacity of the Ministry of Justice in this process. We must have the necessary legal processes and mechanisms in place to ensure not only prosecutions in the short term but also safeguarding the fair trial rights of the accused so that you the Gambian people and generations of Gambians yet unborn can live in this country safe in the knowledge that our criminal justice system will dispense justice in a fair, impartial and dispassionate manner. We must focus on building a strong, robust and independent justice system to match the aspirations of the people of this country so that no one in this country will ever be dragged before our courts for a crime that they did not commit. That is the primary objective of our reform agenda.

  • The Ministry must therefore be in state of full preparedness to handle the demands of our criminal justice system in all respects, and frankly speaking, the Ministry of Justice did not need to be put in this position with the case of the NIA 9 at this moment in time. It is rather unfortunate that the Ministry of Justice was not consulted by the Ministry of Interior or the police before any action was taken in this case especially in view of the fact that the Justice Ministry was going to be ultimately responsible for the case when it is presented before our courts. Hopefully, we will all draw appropriate lessons from this experience and adopt a more inclusive, consultative and coordinated approach in the future.

  • The Ministry of Justice takes very seriously the case of the unfortunate death in custody of Solo Sandeng and all other similar unfortunate incidents over the past 22 years of the former government and that is why we must adopt a comprehensive and holistic approach to addressing these justice related challenges rather than approaching it piecemeal.

  • Moreover, we must also be careful so as not to undermine the President’s desire to move this country forward by encouraging open discussions about the past and fostering national reconciliation through the establishment of a Truth and Reconciliation Commission. Any action, particularly in these early days, must be geared towards achieving that objective. Any other action that runs contrary to this spirit at this moment in time is both unwise and potentially dangerous. As leaders, we will have to make some hard choices. Difficult decisions form part of the burden of leadership. We must lead by example and at times, even lead public opinion in the supreme national interest.

  • Consequently, no new criminal cases involving crimes allegedly committed by the former government will be handled by the Ministry unless they are thoroughly and comprehensively investigated, and until the Ministry of Justice is also ready in terms of its capacity, resources, and logistical needs, and only after the approval of cabinet. As at this moment, we are a long way from that state of trial readiness. The working conditions of the Ministry must be improved first before we can engage in such highly complex and demanding exercises.

  • A Truth and Reconciliation Commission with appropriate reparations for victims will be set up within the next six months and public hearings will be expected to commence by the end of the year. We will need to adapt the lessons learnt from other TRCs to our particular context in The Gambia. Meanwhile, consultations are currently taking place to identify appropriate persons of high moral character and integrity from a cross section of our social, cultural and religious communities for appointment as commissioners to the Truth and Reconciliation Commission. An appropriate location for the public hearings will also be identified. A public information and awareness campaign shall also be launched soon to start discussions on national television and private radio stations throughout the country about the purpose and objective of a Truth and Reconciliation Commission.

  • In conclusion, the Ministry of Justice has developed and almost finalized its transitional strategic paper which details the policy and operational roadmap of the Ministry during this transition period. However, a successful implementation of this strategic plan will ultimately depend on the extent and nature of support that the Ministry will receive from its key partners both within and outside government. I hope that we can all work together as one team with the sole objective of fulfilling the aspirations of the people of The Gambia to live in peace, dignity and the pursuit of happiness. Thank you!”

 

Mai Fatty’s Press Release

STATEMENT FROM THE INTERIOR MINISTRY THROUGH THE OFFICE OF THE MINISTER REGARDING COMMENTS ATTRIBUTABLE TO THE JUSTICE MINISTER THAT THE MINISTRY DID NOT CONSULT WITH HIS MINISTRY IN THE ARREST OF THE NIA 9

March 23, 2017

“We want to thank the Gambia Police Force for a remarkable detective job in apprehending some of the allegedly notorious elements of the former regime. Gambians will appreciate the fact of legendary brutality inflicted by certain elements within the NIA and Jungullars against our citizens. The apprehension of some of the Jungullars who were serving members of the Gambian army was a result of excellent collaborative effort between the police and the armed forces for which we are appreciative.  The arrest of some of these elements required utmost secrecy and discretion within the law so as to avert the escape of some of these dangerous elements out of the jurisdiction.

The investigation in itself by nature required the integrity of the information be protected and also in accordance with the due process of the law. The mandate of the Ministry of the Interior is different from the Ministry of Justice although there is a certain overlap.

Regarding the NIA 9, the Ministry of the Interior acted properly in accordance with the law, and the best interest of the government of The Gambia and the citizens particularly the victims of torture, enforced disappearances, killings and other predatory malgovernance.

The Ministry of the Interior will continue to ensure the country remains stable, peaceful and safe. As part of the government, we look forward to a productive relationship with the Ministry of Justice in ensuring that there is justice for the victims.”

Signed

Lamin Njie

Press Secretary