ON THE WAY FORWARD
Letter To The Attorney General on the Current Situation
It is a trite perception in jurisprudence that justice must be done and be
seen to be done. This elucidates the cornerstone of a just judicial system.
No one can doubt that justice has two components. One is to administer law
without fear or favour, affection or ill-will. The other is for the public
mind to accept that laws have been administered without fear or favour,
affection or ill-will.
Once the two components of justice are satisfied without delay, the vast
majority of people are bound to have confidence and trust in a judicial
system. In that respect, restraint will always bind their actions in order
to wait for the due process of law to take its course. People's expectations
of a judicial system contribute a great deal to social cohesion or the break
down of social order.
In short, if a country is exposed to any situation which engenders the risk
of a conflict between expectation of what should be done and the failure to
meet such an expectation, social crisis becomes inevitable. To contain such
a crisis would require the undertaking of activities that are consistent
with the restoration of the fundamental principles which bind a proper
judicial order. This means that measures should be undertaken to restore the
balance on the scales of justice so that people will come to see that what
has been left undone has been done without undue delay and that no situation
will emerge in the future without being addressed in a convincing manner
without delay.
As you have rightly said in your press release of 13 April 2000, "the
credibility of our criminal justice system itself is on trial" How the
present crisis is handled is, therefore, of fundamental importance. Under
section 73 of the Constitution, subsection (2) "The Attorney General shall
be the principal legal adviser to the government...." You role is of
supreme importance.
Many things have already been said. Press conferences have been convened
during which cabinet members tried to explain how the government intends to
handle the crisis. There has been a major debate as to whether live bullets
have been utilised or not. Most of the information has, at best, been
speculative and, at worst, evasive.
What has become a matter of consolation is your press release of 13 April
2000. You have given assurance that you intend to pave a new path for the
system of dispensation of justice in cases that are of public interest. We
intend to give amplification to your assurances so that it will prevail over
the speculative testimonies which have been creating a lot of distrust that
justice will ever be done.
You made the following categorical statement in your press release of 13
April 2000:
"As the Attorney General and Secretary of State for Justice, it is my
constitutional duty to balance two equally valid, but often competing,
principles:
"i. the need to ensure that anyone who breaks the law is called to answer
for it;
"ii. and that in so doing the accused person must be accorded a fair
hearing.
"The latter means that the accused can only be arrested and later convicted
if there is sufficient evidence to warrant it.
"The sad events of the last few days deserve a response from the Department
of State for Justice in line with the dual constitutional role outlined
above.
"In line with Government's commitment to the principles of transparency and
accountability, and having regard to the fact that justice must not only be
done, but it must be seen to be done, I have invoked my powers under section
11(1) of the Coroner's Act, Cap 7.04, and an application is simultaneously
being lodged with the Chief Justice to order that an inquest be held
touching on the death of any persons as a result of the events of the 10th
and 11th April 2000.
"The purpose of the inquest is, of course, to establish whether or not an
offence has been committed by any person, known or unknown.
"As for the case of Ebrima Barry (deceased), an information will be filed in
the course of next week.
"In view of the fact the credibility of our criminal justice system itself
is on trial, the Attorney General will take the unusual step of appointing a
Public Prosecutor under section 65 of the Criminal Procedure Code. The
Gambia Bar Association, the family of the deceased, friends of justice (at
home or abroad) are invited to suggest names of lawyers, (both at home and
abroad) who can satisfactorily conduct the prosecution of the alleged
murderers of Ebrima Barry.
The Attorney General's Chambers will provide logical support; but will
otherwise do nothing to divert or influence the prosecutor.
"The State will, however, only be responsible for meeting the cost of a
local prosecutor.
"The Attorney General's Chambers will consider any other suggestion that
ensures a speedy and fair trial of the case.
"As for the case of Binta, the Attorney General's Chambers is handicapped by
the absence of identification of the alleged culprits. Investigations are
still in progress and the public is urged to come up with any information
that may lead to the identification and possible arrest of the alleged
culprits."
These steps are unprecedented. It is absolutely essential for all of us to
play our role to ensure that they are not mere declarations.
Four fundamental tasks can be adduced from the press release. First and
foremost, there is to be a Coroner's Inquest touching on the death of any
persons as a result of the events of 10 and 11 April 2000.
Of course, the dates need to be extended to cover any death associated with
GAMSU's plan to hold a demonstration. Your Department of State needs to
utilise the radio and television to explain very clearly how a Coroner's
Inquest is conducted and call on the public to be ready to give any
information touching on the death of any person without having any fear of
victimization. This is a very important component of the task.
Secondly, you have indicated your plan to appoint a Public Prosecutor under
section 65 of the Criminal Procedure Code to conduct the prosecution of the
alleged murderers of Ebrima Barry.
It will be important for your Department of State to address an official
letter to the Gambia Bar Association and the main advocacy groups in this
country for human rights, such as the African Society of International and
Comparative Law, inviting them to suggest names of lawyers who would be
willing to serve as Public Prosecutors.
We shall be making consultation with relevant institutions and individuals
and would give our own suggestions as soon as possible. We hope all
Gambians, especially those living abroad, will take this matter seriously
and play their quota in ensuring that words are backed with deeds.
The third task you have mentioned in your press release is the issue of the
alleged rape of Binta Manneh. It is rather unfortunate that the issue became
a matter of discussion during the press conference convened at the
Department of State for the Interior on Thursday, 13 April 2000.
You have indicated that investigation is still on progress. Some of the
comments made from the cabinet were clearly prejudicial to the case. As the
Principal Legal Adviser of the government, it is essential to guide the rest
of your colleagues not to make comments regarding the substance of a case
that could give the public the impression that those who lodged their
complaints are not believed, any way.
The case of Ebrima Barry and Binta Manneh are emotionally charged. The best
way they could be handled is through the avenue that you have proposed in
the case of Ebrima Barry once information is gathered.
Fourthly, you have raised the issue of speedy and fair trial. However, what
you have not raised is the issue of arbitrary detention. This issue is of
fundamental importance.
A state of emergency has not been declared. The fundamental provisions of
the constitution are still in force. People are being arrested. Many are
still under detention. Section 19 of the Constitution states categorically
that
"(1) Every person shall have the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his or her liberty except on such grounds and in accordance with
such procedures as are established by law.
"(2) Any person who is arrested or detained shall be informed as soon as is
reasonably practicable and in any case within three hours, in a language
that he or she understands, of the reasons for his or her arrest or
detention and of his or her right to consult a legal practitioner.
"(3) Any person who is arrested or detained -
"(a) for the purpose of bringing him or her before a court in execution of
the order of a court; or
"(b) upon reasonable suspicion of his or her having committed, or being
about to commit, a criminal offence under the law of The Gambia,
"and who is not released, shall be brought without undue delay before a
court and, in any event, within seventy-two hours.
"(4) Where any person is brought before a court in execution of the order of
a court in any proceedings or upon suspicion of his or her having committed
or being about to commit an offence, he or she shall not thereafter be
further held in custody in connection with those proceedings or that offence
save upon the order of a court.
"(5) If any person arrested or detained as mentioned in subsection (3) (b)
is not tried within a reasonable time, then without prejudice to any further
proceedings which may be brought against him or her, he or she shall be
released either unconditionally or upon reasonable conditions, including, in
particular, such conditions as are reasonably necessary to ensure that he or
she appears at a later date for trial or proceedings preliminary to trial.
"(6) Any person who is unlawfully arrested or detained by any other person
shall be entitled to compensation from that other person or from any other
person or authority on whose behalf that other person was acting."
It is abundantly clear that right is a possession. It is not a gift. It is
owned. It can, however, be seized. When that is done, justice must become
the casualty. No criminal justice system can be credible when it is marked
by a seizure of rights. Justice itself is a way of life. It is a culture. It
is the actions we take in fulfilling the two fundamental pillars you have
established that promote awareness and a culture of justice.
You have said that it is your constitutional duty to balance two valid
principles, that is, to ensure that anyone who breaks the law is called to
answer for it and that he or she who is accused must be accorded a fair
hearing.
On the other hand, it is an equally valid constitutional principle that no
one should be subjected to arbitrary arrest or detention and that those who
are arrested shall be informed within three hours of the reasons of their
arrest and detention and be accorded the right to consult a legal
practitioner. Those arrested should be brought before a court within
seventy-two hours or be released.
As the Principal Legal Adviser of the government you should communicate
these fundamental principles to those who are law enforcement agents.
It is important to convey to you that some students have been under
detention since Monday, 10 April 2000, but have not been taken before any
court. You should bear in mind that the police stations in the country are
generally congested; beds are generally not available; providing breakfast,
lunch and dinner has always been a problem for detainees. In many cases,
clothes are not changed and all sorts of infections are possible. It is
absolutely essential to put the issue of the student detainees into sharp
focus.
You would agree with us that when an innocent person is detained for a
second, justice goes to sleep for a year. When justice goes to sleep, rights
are left unprotected, freedom unguaranteed and social cohesion must become
the casualty.
It is, therefore, important for your Department of State to ensure that
students are not hardened by any miscarriage of justice based on the failure
to investigate the allegations against them with speed and release or take
them to court without undue delay.
Finally, it is important for your Department of State to be a depository of
all the information depicting what the victims went through. It is,
therefore, absolutely essential to establish a commission that will receive
complaints of losses and atrocities against all victims with the view to
setting up a Truth and Reconciliation Commission.
What happened here was a calamity which threatened the lives and well being
of many people. It is important that we all know what happened here so as to
know what measures to take to be able to live with ourselves and with each
other.
Suffice it to say, all detainees should be immediately given the opportunity
to be visited by relatives if that has not already been instituted. Even
under a state of emergency, section 36, subsection (1) (b) of the
Constitution states that "Where a person is detained by virtue of or under
any Act of the National Assembly referred to in section 35, the following
provisions shall apply -
"the spouse, parent, child or other available next-of-kin of the person
detained shall be informed by the authority effecting the detention and
shall be permitted access to the person concerned at the earliest
practicable opportunity, and in any case not later than twenty-four hours
after the commencement of the detention".
It is important for your Department of State to establish standards that
will enable us to forge ahead without being a menace to each other.
By a copy of this letter, we are calling on The Association of
Non-Governmental Organisation (TANGO), the Gambia Bar Association, the
Medical and Dental Association and the African Society of International and
Comparative Law to set up a Civil Society Monitoring Group with a division
of labour based on the competence of each jurisdiction.
Announcement can be made for all victims to report at the headquarters of
TANGO to lodge complaints. The Bar Association can set up a team of advisers
which will review cases and give legal advice as to what could be done to
ensure redress. The Medical and Dental Association can have a team of
medical doctors who will receive medical complaints and offer advice.
In this way, concerted action would be taken to evoke sensitivity and show
responsiveness to the plight of our fellow citizens. This will enable us to
build a culture of concern and care which is the double-edged sword that can
smite the ugly head which alone can prevent a country from sinking into
fascism.
This is the moment for all just people in the country to stay vigil. We must
not only observe; we must be involved. We must take charge of the situation.
We must not only ask why; we must accept responsibility of what is happening
and do what is necessary to prevent it from recurring. It is the actions and
reactions of people which breed trust or distrust, confidence or its
opposite, social cohesion or social discord, development or destruction. The
key lies in our thoughts and actions. We are the architects of our own
destiny, be it one of liberty, dignity and prosperity or tyranny,
degradation and destitution. The choice is ours. We must decide. History
will be the judge of us all.
While anticipating your favourable consideration of the proposals made,
We remain,
.......................................
Halifa Sallah
For: The Editorial Board.
----------------------------------------------------------------------------
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L
Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html
----------------------------------------------------------------------------
|
