Author: Dr Sophie Frediani
Site of publication: Geneva Center for security sector Governance
Type of publication: Policy paper
Date of publication: July 2021
In December 2016, Adama Barrow was elected President of the Republic of The Gambia, succeeding Yahya Jammeh who had seized power in a coup d’état in 1994. For 22 years, Jammeh’s rule was characterized by a pervasive and entrenched disregard for the rule of law and systematic human rights violations. This included enforced disappearances, arbitrary arrests and detentions, torture and other forms of ill-treatment, unlawful killings and intimidation.1 These human rights abuses targeted journalists, human rights defenders, civil society organizations (CSOs), student and religious leaders, political dissidents, members of the LGBTQ community, and dissenting members of the state’s justice and security institutions. For the most part, these serious human rights violations were committed by members of state security institutions or paramilitary groups, which served as the Jammeh regime’s tool of repression. The state apparatus was further characterized by highly politicized security institutions, the lack of independent judicial authorities and the absence of genuine parliamentary oversight.
Upon taking office, the new Government committed to creating the required architecture that would guide Gambian society in reflecting and upholding overarching principles or democratic principles, human rights and the rule of law. Under this broader framework, the Government identified three critical processes: transitional justice, security sector reform (SSR) and constitutional reform. The success of these three processes hinges on their ability to address the legacy of abuses under the Jammeh regime while establishing the parameters of separation of power, the rule of law and good governance. This policy paper specifically focuses on the interlinkage of the SSR and the transitional justice processes as complementary tools to provide a platform for reconciliation, reforming abusive institutions and ensuring oversight and accountability of the justice and security sector.
Human rights violations during the Jammeh era. The TRRC published an interim report in March 2020 and is expected to produce a final report in July 2021
The SSR process and the transitional justice process in The Gambia were both initiated in 2017 and have since run in parallel. To date, each process can claim some important achievements. The SSR process has led to the Government adopting an ambitious SSR transformation agenda by adopting a series of overarching policy and strategic documents. This includes the National Security Policy (June 2019) and its subsidiary strategies – i.e. the National Security Strategy (2020-2035) and the SSR Strategy (2020- 2024), both launched at the end of November 2020. Similarly, the Truth, Reconciliation and Reparations Commission (TRRC) was established by its constitutive Act of 2017, with the mandate to establish an impartial historical record of human right abuses from July 1994 to January 2017 and to make recommendations to prevent the recurrence of abuse. Since its establishment, the TRRC has conducted and completed a large number of public hearings, gathered written statements, and conducted on-site visits and exhumations. In so doing, it has documented the involvement of the executive, security institutions and paramilitary groups in the commission of serious human rights violations during the Jammeh era. The TRRC published an interim report in March 2020 and is expected to produce a final report in July 2021.
Understanding SSR in the framework of transitional justice
Transitional justice commonly refers to “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” Through a set of complementary mechanisms, transitional justice encompasses and gives effect to four international fundamental rights and obligations: 1) the right to truth; 2) the right to reparation; 3) the right to justice and; 4) the guarantee of non-recurrence of violations. These four fundamental rights and associated obligations of states to respond to mass violations of human rights are enshrined in the Updated UN Set of Principles to Combat Impunity – as reflected in the four pillars of the mandate of the Special Rapporteur on transitional justice.
Because the four pillars of transitional justice consist of fundamental rights of people and related state obligations under international law, these pillars are cumulative and not alternative. This implies that compliance with the obligation to guarantee the right to truth through the establishment of a truth commission does not absolve the state from its obligation to prosecute gross violations of human rights. Likewise, complying with the obligation to prosecute violations does not relieve a state from its obligation to undertake the required measures and reforms to prevent the recurrence of violations. As a result, all pillars are closely interlinked and mutually reinforcing and as such ought to be considered through a holistic approach.
Transitional justice commonly refers to “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”
As stated by the UN Special Rapporteur, an obligation to respect and ensure human rights entails an obligation to take measures to prevent a recurrence of their violation. The obligation of states includes a need “to organize the governmental apparatus, and in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.”
SSR and the guarantee of non-recurrence
SSR as an international legal obligation?
SSR is generally referred to as a process of transforming the security sector to strengthen accountability, effectiveness, and respect for human rights and the rule of law. The security sector is a broad term used to describe the structures, institutions and personnel responsible for the management, provision and oversight of security in a country.
Since the emergence of the concept in the 1990s, SSR has been conceived as a process to promote and strengthen good governance, and especially accountability, of the justice and security sector. More rarely, however, has SSR been understood in light of international legal obligations. Yet, as detailed above, in the context of past gross violations of human rights, the guarantee of non-recurrence obliges the state to undertake the necessary reforms to, inter alia, shape its security sector in such a way that fully ensures respect for human rights. As such, it can be argued that the justice and security-related initiatives undertaken by the state – whether or not officially branded as or part of an SSR process – constitute the means by which the state complies with its international legal obligation to guarantee non-recurrence.
SSR-related measures and compliance with the guarantee of non-recurrence
There is no specific approach for complying with the guarantee of non-recurrence, as this guarantee is a function that can be satisfied through a broad variety of measures. Human rights treaty bodies have identified a series of measures that can be undertaken by states under the guarantee of nonrecurrence, all of which fall within the parameters of an SSR process.
The measures identified in the 1993 Van Boven Report include: ensuring effective civilian control of military and security forces; restricting the jurisdiction of military tribunals; strengthening the independence of the judiciary; protecting human rights workers, and; providing human rights training to all sectors of society, in particular to military and law enforcement officials. Measures listed in the Updated Set of Principles to Combat Impunity include: 1) reform of state institutions, through legislative and administrative reforms; 2) disbandment of unofficial armed groups; 3) legal reform, notably repealing of legislation and regulations that contribute to or legitimize human rights violations; ratification of human rights treaties; domestication of international crimes; judicial reforms and constitutional reform.24 According to the Updated Set of Principles, measures toward reforming state institutions ought to include civilian oversight of military and security forces and of intelligence agencies, including by legislative oversight bodies; civil complaint procedures and “at a minimum”, the removal of “public officials and employees personally responsible for gross human rights violations, in particular those involved in military, security, police, intelligence and judicial sectors”.
Retrospective & prospective
SSR Research examining which states are more vulnerable to gross human rights violations has identified a series of “risk factors”. Two of these risk factors are particularly relevant in the context of SSR. The first key risk factor relates to contexts in which there are weak state structures. In such cases “the weakness of State structures will not necessarily be a cause of atrocity crimes, but it undoubtedly decreases the level of protection and, when analysed in conjunction with other risk factors, increases the probability of atrocity crimes.” The second risk factor relates to contexts where there are cases of serious violations of international human rights along with a policy or practice of impunity. In such cases “the legacies of past atrocity crimes have not been adequately addressed through individual criminal accountability, reparation, truth-seeking and reconciliation processes, as well as comprehensive reform measures in the security and judicial sectors.” This factor increases the risk that state security institutions will “resort again to violence as a form of addressing problems.”
These two scenarios mirror the two complementary objectives of SSR in the framework of past human rights violations. The first scenario calls for “prospective” SSR, which commonly aims at improving security sector governance (SSG). SSR processes aim to identify and pursue reforms that influence how institutions and their personnel will and/or should operate and behave in the future. SSR focuses on strengthening the accountability, effectiveness and efficiency of justice and security sector institutions. This includes promoting ethics, integrity and professionalism, addressing structural or management deficits, establishing internal control mechanisms and ensuring effective external oversight of the security sector by state and non-state actors (i.e. parliament, CSOs, media, ombuds institutions, national human rights commissions).
In the second case – records of unaddressed human rights violation– “prospective” SSR alone would not adequately prevent a recurrence of violations. The SSR process should be “retrospective” in nature as well. This implies shaping the SSR agenda in light of the underlying root causes of past violations, whether cultural or structural, and aims at disbanding the system (both at the institutional and individual level) that enabled or facilitated previous human rights violations. The SSR agenda must thus be crafted with due regard to the structures, policies and practices that facilitated or allowed the violations, and to disable the organizational, operational, if not the legal capacity, to commit the violations. In the same vein, in designing the justice and security reform process, one must consider the extent to which the past human rights violations, by act or omission, directly or indirectly targeted specific groups of the population on the basis of their ethnicity, religion or gender.
Interlinking SSR and transitional justice processes in The Gambia
Overview of past abuses in light of the TRRC (Truth, Reconciliation and Reparations Commission) proceedings The TRRC collects information on past human rights abuses through public hearings, statements, onsite visits and exhumations. The public hearings are conducted following predefined “themes” that relate to specific events (e.g. the 1994 coup;), to the type of human rights violations (sexual and gender-based violence [SGBV], violation of freedom of press or assembly; enforced disappearance etc.), to Jammeh’s paramilitary hit squad known as the “Junglers” or to justice and security institutions. Beyond the impact that the information collected will have on the victims in terms of their right to truth, the evidence gathered by the TRRC is key to laying bare the systemic, legal, and cultural factors that facilitated human rights violations.
The TRRC’s public hearings confirmed the extent to which security institutions were involved in systematic human rights abuse and that they were used as the past regime’s tool of oppression and power. Notably, the hearing corroborated allegations pertaining to the central role of the National Intelligence Agency (NIA; Jammeh’s personal secret police) in the commission of human rights violations; a role that can be summarized by the following witness statement: “It was a tolerated practice that NIA would bring prisoners in without proper documentation or paperwork. Some came in a bad shape, after torture.” The TRRC conducted an on-site visit to the NIA, including the infamous “Bambadinka” (crocodile hole), where victims, particularly alleged dissidents, were tortured. In addition to torture, illegal arrest and detention and other human rights violations, NIA members were allegedly implicated in drug trafficking, along with members of the Drug Law Enforcement Agency of The Gambia (DLEAG).
The evidence gathered by the truth commission are key to understanding the system through which the state apparatus, and specifically security institutions, were de facto and de jure able to curb the fundamental rights of the population. These constitute fundamental elements to shape the SSR process, provided that the relevant tools and mechanisms are adopted to ensure an integrated approach of the two processes.
Promoting an integrated approach of the two processes The Gambian SSR and transitional justice processes were launched simultaneously in 2017 and have since run in parallel. In spite of their complementary objectives, it is argued that efforts to ensure an integrated approach or even a dialogue between the two processes, have been somehow lacking.
The fact that transitional justice and SSR were launched and are running in parallel constitutes a genuine opportunity – if not a necessity – to ensure effective coordination and communication between the two processes so that SSR is continuously fed by and mindful of the TRRC proceedings. The role of the Government, in particular the Office of the President, the Office of National Security and the Minister of Justice, are instrumental in ensuring that the information provided by victims and witnesses in the framework of the TRRC regularly infuses and guides SSR and its priorities. The Minister of Justice, who leads the transitional justice process and also chairs the SSR Steering Committee, has a pivotal role to play to ensure that the voices of the victims and witnesses are equally heard and addressed in both the SSR and transitional justice processes. In parallel, a good practice may consist in establishing a dedicated framework or mechanism to foster coordination between SSR and transitional justice. It is notable that the 2020 SSR Strategy foresees the establishment of a “joint coordinating committee to synergize transitional justice and SSR.” This body was, however, never established. Its creation and operationalization at the outset of the SSR process could have been instrumental in influencing the SSR agenda. It is hoped that such a body will ultimately be created to serve as an effective tool for the purpose of analysing and acting upon the TRRC’s recommendations, following the release of its report.
In parallel, due consideration of transitional justice in the SSR process should imply that it is fully inclusive and participatory in such a way that it is designed and implemented having due regard to the experiences, concerns, fears and expectations of the victims of past violations, including vulnerable. groups or minorities. As Mayer-Rieckh stated, “in the aftermath of serious abuses, particular efforts should be made to reverse the process of excluding victims of abuse and other marginalized groups and reaccept them in the political community.” Likewise, it entails adequate representation of victims and marginalized groups in security sector institutions, considering that “dealing with the past in SSR should aim not only to reform the security providers but also to empower directly victims and other marginalized groups.”41 Notably, this requires that victims and witnesses of past abuses are represented and participate in the development of key strategic SSR documents. Yet, in The Gambia, concerns have been raised about the lack of genuine participation of CSOs in the SSR process, and specifically in the development of strategic SSR documents.
An integrated approach of the two processes would also imply considering the need to “deal with the past” as a core objective of SSR. Admittedly, the SSR strategic framework (National Security Policy and the two subsidiary strategies) expressly acknowledge that past human rights abuses were committed by members of security forces. While the SSR Strategy does set its first SSR priority area as “Addressing Post-Authoritarian Legacies to Enhance Reforms”, the specific objectives or interventions foreseen under this pillar do not respond to the stated priority area. As a way of example, the revision of laws and policies is aimed at “reflecting the current realities.” Other objectives stated in the strategy are also so broad that they hardly commit the Government to implementation. For instance, it refers to the need to “impose sanctions on those responsible for human rights violations.” Not only is the language here problematic (the aim should be to ensure accountability of persons involved in past abuses rather than “imposing sanctions”), but the document fails to clearly identify the required measures (in terms of legal reforms and justice reforms) that would allow effective and efficient prosecution of violations.
Vetting at the core of the intersection of SSR and transitional justice
The 2019 National Security Policy states: “Further delays to set up a mechanism for dealing with members of the past regime accused of committing atrocities has resulted in deep-seated grievances amongst sections of the civilian population. Importantly, alleged perpetrators still actively involved in the security sector must be brought to account for alleged crimes in a strengthened Transitional Justice Process to ensure accountability and justice.”
A vetting process of the security sector has been either called for or referred to in both the transitional justice and the SSR processes. It appears, however, that the two processes have taken a different approach as to the scope and purpose of vetting. On the one hand, the transitional justice strategy states that “vetting and ejecting the individuals responsible for abuses from public office is an integral part of the process of restoring the trust of the victims and the society in state institutions.” On the other hand, under the SSR strategic framework, the vetting envisaged is to “screen and vet personnel of all national security institutions before enrollment and as may be deemed necessary.”58 The National Security Strategy and the SSR Strategy foresee the enactment of a “Vetting Act” and the establishment of an independent and multisectoral vetting capability responsible for all vetting. This mechanism moreover is to be under the purview of the SIS.
Further delays to set up a mechanism for dealing with members of the past regime accused of committing atrocities has resulted in deep-seated grievances amongst sections of the civilian population. Importantly, alleged perpetrators still actively involved in the security sector must be brought to account for alleged crimes in a strengthened Transitional Justice Process to ensure accountability and justice
It appears that the Gambian Government plans solely for “security vetting,” as opposed to “transitional/ integrity building vetting.” “Security vetting” aims to ensure that the character, personal circumstances of an individual, including his/her vulnerabilities and associated risks, are such that he/she can be trusted with sensitive Government information or assets. “Security vetting” therefore consists of a screening process for criteria that do not include human rights considerations but focuses instead on issues related to the security of the state. It seems that the “security vetting” process planned in The Gambia will mirror that undertaken in Kosovo. “Security vetting” is to be differentiated from the common concept of vetting in transitional settings which generally refers to “a formal process for the identification and removal of individuals responsible for abuses, especially from police, prison services, the army and the judiciary.”
While “security vetting” should be part of a comprehensive SSR framework, it could be argued that priority should have been given to a “transitional/ integrity building vetting” process.
An additional argument for vetting is that the absence of “integrity building vetting” diminishes any efforts made towards preventing the recurrence of human rights violations. As stressed by the UN Special Rapporteur on Transitional Justice: “The continuation in power of an abusive regime makes it impossible to guarantee that violations will not be repeated.”67 Those security personnel who bear the greatest responsibility in past abuses are likely to reproduce their previous behavior in a given or similar context, including during a political or security crisis.
Ensuring accountability for past abuses
While the truth commission and vetting mechanisms both contribute to acknowledgment of and accountability for past abuses, they are not alternatives to criminal prosecution. CSO representatives in The Gambia have stressed the importance that criminal prosecution will have in the healing and reconciliation process for Gambians. Surveys indicate that 68 per cent of Gambians believe that “perpetrators of crimes and human rights abuses during Jammeh’s regime should be tried in court”. During the so called “reconciliation hearings”, which are critical for healing, citizens still express concerns that there must be criminal justice. It is worth stressing that the Supreme Court of The Gambia ruled that members of the previous regime do not enjoy constitutional immunity from prosecution. The TRRC Act provides the basis for the Commission for the “identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses”. As the then Minister of Justice stressed, this is the first truth commission in the world with such a mandate. The phrase “who bear the greatest responsibility” has been used to establish the primacy of ad hoc international or hybrid criminal tribunals over national courts, leaving to the latter the responsibility to prosecute lower-ranking individuals. The recommendations of the TRRC as regards to “those who bear the greatest responsibility” may serve as a guideline for developing a prosecutorial strategy and shall not constitute legal findings as to the individual criminal responsibility of the individuals mentioned.
During the so called “reconciliation hearings”, which are critical for healing, citizens still express concerns that there must be criminal justice. It is worth stressing that the Supreme Court of The Gambia ruled that members of the previous regime do not enjoy constitutional immunity from prosecution. The TRRC Act provides the basis for the Commission for the “identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses”
Overall, the transitional justice process represents a genuine opportunity to ensure that criminal justice reforms constitute an integral part of SSR while providing the relevant framework, tools and mechanism to prevent and prosecute serious human rights violations.
More than four years into the political transition, significant progress has been achieved in the framework of transitional justice and SSR. While the former process will lead to the drafting of a final report in the near future, the latter process led to the collection of data and the establishment of a framework to inform and implement reforms. For the most part, however, these two processes have been developed and implemented in silos, with little dialogue, let alone integration. One could refer to the sequencing of the two processes to explain this gap. There are indeed some benefits when SSR processes are initiated after the completion of a truth commission’s mandate, allowing SSR policymakers to review the commission’s recommendations and design the reform agenda accordingly; as such, this sequencing is likely to leverage the impact of transitional justice.
On the other hand, the launching of the two processes in parallel constitutes an opportunity of mutual integration and dialogue from the outset. This is particularly true in The Gambia where the transitional justice process has benefitted from a wide and effective communication campaign, which could have simultaneously advanced dialogue on and inclusiveness of the SSR agenda. This limited dialogue among TRRC and SSR practitioners may be seen as a missed opportunity to better understand the systemic or structural issues that have contributed to the misbehavior of the security sector, thereby enhancing the relevance of the SSR process to the needs, views, and fears of citizens and vulnerable groups impacted by the atrocities committed by the security sector under the previous regime.
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