Ex-President Jawara Vs Gambia Government Case




The Independent (Banjul)

September 22, 2000

Alieu Badara Sowe, Our U.K Correspondent
Banjul

A case that has been running for four years in the African Commission on Human
and Peoples' Rights, between deposed President Jawara and the Government of The
Gambia has ended in favour of Sir Dawda.

After examining a ten-point allegation against the government which was
submitted by Sir Dawda four years ago, the African Commission on Human and
Peoples' Rights found The Gambia Government guilty of basic human rights abuses
and urged it to bring its laws in conformity with the provisions of the African
Charter on Human and Peoples Rights. This was made during the Commission's 27th
ordinary session in Algiers, Algeria in May 2000.

Sir Dawda had submitted that after the 1994 military coup which swept him from
power, there were 'blatant abuse of power by the junta' alleging a reign of
terror, intimidation and arbitrary detention. The 76-year-old ex -President
currently in exile in the United Kingdom alleged that the abolition of the Bill
of Rights as contained in the 1970 Gambian constitution by military Decree No.
30/31 'ousted the competence of the courts to examine or question the validity
of such decrees'. Apart from other allegations such as the ban on ministers of
the former regime, and the restriction on freedom of expression, Sir Dawda also
alleged that a former interior minister of the Armed Forces Provisional Ruling
Council (AFPRC) did not die as a result of high blood pressure as was claimed by
the government, 'but was tortured to death'.

Sir Dawda went further to state that Koro Ceesay was 'killed by the government.'
The former Gambian leader also reportedly attached the names of thirteen out of
fifty soldiers he alleged were killed in what he described as a 'stage-managed
attempted coup,' before being buried in mass graves. It was his submission that
The Gambia Government has since 1994 violated various articles of the human
rights charter.

After the Commission had acknowledged receipt of the former President's
allegations, it notified The Gambia Government which responded that one of the
points raised lacks 'proofs in support'. The government asserted that the
decrees complained of may on their face value be seen to be contrary to the
provisions of the Charter but claimed that they must be 'studied and placed in
the context of the changed circumstances in The Gambia.' The government argued
that on the freedom of liberty it had always acted in conformity with laws
previously laid down by domestic legislation. It added that the decrees did not
prohibit the enjoyment of freedoms. They were merely to secure peace and
stability the state further argued. However, the Commission dismissed this
assertion as 'unfounded,' deciding that in respect of freedom of association
'competent authorities should not enact provisions which limit the exercise of
this freedom'.

'The competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and international
human rights standards,' the commission posited.

Added to its claim that 'not a single individual has been deliberately killed
since the take-over' The Gambia Government also told the commission that it
'does not intend to spend valuable time responding to baseless and frivolous
allegations by a deposed despot.' Moreover, making reference to Article 56 (5)
of the human rights charter the government argued that the claimant (Sir Dawda)
has not attempted to exhaust local remedies by sending his complaints to the
police who it held would have investigated the allegations and prosecute the
offenders 'in a court of law.' However, the commission countered that in view of
the fact that the Gambian courts' effectiveness were eroded by a heave of
decrees, 'it would be reversing the clock of justice to request the complainant
to attempt local remedies.' It argued that since local remedies were not evident
in The Gambia during AFPRC rule, these remedies could not have been invoked by
the state. The Commission posited that the existence of a local remedy must be
sufficiently certain not only in theory but also in practice, failing which it
will lack the requisite accessibility and effectiveness. 'Therefore if the
applicant cannot turn to his country's judiciary because of generalised fear for
his life (or even those of his relatives) local remedies would be considered
non-existent,' it advanced.

In this vein the Commission further emphasised that considering Sir Dawda's
'unconstitutional' overthrow, his trial in absentia and the detention of his
ministers 'it would be an affront to commonsense and logic to require the
complainant to return to his country to exhaust local remedies.' The Gambia
Government had always advanced that the Commission is allowed under the charter
to take action only on cases which reveal a series of serious or massive
violations of human rights. 'This is an erroneous proposition,' said the
Commission. 'Apart from Article 47 and 49 of the Charter which empower the
Commission to consider inter-state complaints, Article 55 of the Charter
provides for the consideration of communications other than those of the state
parties.

The Commission also observed that while the complainant had alleged that there
had been extra-judicial killings, no concrete evidence was adduced to support
this allegation. It said the government had provided official post mortem
reports on the causes of death of two AFPRC ministers. The government had not
refuted allegations of arbitrary arrests and detention nor did it dispute the
fact that soldiers died during the counter coup of November 1994. However, it
acknowledged that 'soldiers of both sides lost their lives due mainly to the
fact that the rebels were fighting back'.

The Commission ruled that it should not verify the authenticity of the post
mortem reports of Koro Ceesay and Sadibou Hydara or the truth of the
government's defence. 'The burden is on the complainant to furnish evidence. In
the absence of concrete proofs the Commission cannot hold the state to be in
violation of Article 4 of the Charter,' it declared.

However, in an overall judgement the Commission found The Gambia Government in
violation of the following provisions of the Charter; Articles: 1,2,6 7 (1) (d)
and 7(2), 9 (1)and (2), 10 (1), 11, 12 (1) and (2), 13 (1),20(1) and 26 of the
Charter, for the period within which the violations occurred. On the strength of
the ruling the Commission urged the Government of The Gambia through Germain
Baricako its Secretary to conform to those violated provisions of the Charter.

We will in subsequent issues serialise the case and the commission's judgement.

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