*Feature:* Vengeance is His; Will He repay Jammeh?

Some time in 2005 the deaths and disappearances of some 44 Ghanaians and
other West African nationals were reported in The Gambia. One of the
Ghanaian nationals who survived that savagery in the Gambia, Mr. Martin
Kyereh, came back to the country and gave an account of what transpired.

According to him they were a group of West Africans nationals (mostly
Ghanaians) in Senegal who had chartered a boat to ferry them across the
Mediterranean to Europe. The boat however had to pick some other persons
from The Gambia before setting off for Spain. It was in this process that
they were captured in Gambian waters and allegedly accused of being
mercenaries brought into that country to overthrow the government of Yahaya
Jammeh.

The story continues that after languishing in jail for some days, they were
moved from there at night and packed in what was apparently a military jeep
in shackles, driven to some jungle and slaughtered, or otherwise made to
disappear.

News reports of this incident sparked off heated debates in the Ghanaian
media and political circles resulting in pressure on the then NPP government
to take steps to get the Gambian authorities to unravel the mystery
surrounding the killings; find and prosecute the perpetrators and also pay
compensation to the families of the victims of the dastardly acts. The
government led by the then Foreign Minister Nana Akufo-Addo, and later
Akwasi Osei Agyei did what they could leading several delegations to the
Gambia over this matter; but the Gambians just wouldn’t cooperate.

At a point, that is somewhere June/July 2007 some human right activists
including Nana Oye Lithur’s Commonwealth Human Rights Initiative planned to
demonstrate against Yahaya Jammeh if he attended the AU Summit in Accra that
year. That never happened though, because the police got a Court injunction
to stop it (if my memory serves me right) and in any case Jammeh himself
never showed up in Accra as if to forestall any further confrontation
between the police and the human rights folks.

After several ups and downs over this matter which got some frustrated
Ghanaians even suggesting the severance of diplomatic ties, the two states
agreed to a UN/ECOWAS Fact Finding Mission after Ghana had lodged a
complaint with the regional body, ECOWAS. This approach many thought was
going to bring out the whole truth and lay the matter to a permanent rest.

But the report of that Fact Finding Mission and an MOU which President Mills
and his Gambian counterpart have signed to implement the said report are
stirring up more debate and questions, including those bordering on the
international legal obligations of the Gambia. In this article I wish to
consider the legal implications of the alleged report of the UN/ECOWAS Fact
Finding Team and the purported MOU signed by President Mills and Yahaya
Jammeh to implement it.

Ghana News Agency (GNA) news sources say, that the Fact Finding Mission
reports that only eight instead of the earlier figure of 44 persons were
actually dead, six being Ghanaians. The alleged report also concludes that
the “Gambia is not directly or indirectly complicit in the deaths and
disappearance of the Ghanaian nationals concerned”.

Effectively what the Fact Finders are saying is that the Gambia is not in
anyway responsible for the gross human rights violations which occurred in
that country under the superintendence of the Jammeh regime. This conclusion
is most unfortunate and must outrage the conscience of any human right
sensitive person.

It is indeed intriguing as to whether the said Fact Finding team averted
their minds to the international human right obligations to which the Gambia
is subject before arriving at that conclusion. In article 2 of the Universal
Declaration of Human Rights and articles 4 & 6 of the African Charter on
Human and Peoples’ Rights, the inherent rights of all persons to life,
security of person and equal protection of the law are guaranteed and
constitute binding international human right obligations on the state and
government of the Gambia.

In Commission Nationale de Droits de l’Homme et de Libertes v.
Chad[2000]AHRLR 66, the African Commission on Human Peoples’ Rights has held
that the duty of all state parties to the African Charter including the
Gambia to ensure the protection of life and security of all persons within
their territories is non-derogable.

What this means is that no state will be heard to justify its failure to
respect that obligation on the basis of any excuse or circumstance. To put
it simply and bluntly, no exception is allowed as far as the obligation to
take measures to ensure security of person and equal protection of the law
for all persons is concerned.

Therefore, even if we accept the conclusion of the Fact Finders that no
Gambian official directly took part in or authorized the killings, and that
it was rather some human trafficking scam which perpetrated the acts as we
are being made to believe, the Jammeh regime could still not avoid liability
when in blatant violation of their international human right obligations,
they failed to take positive steps to prevent the incident from occurring.

Indeed the Gambian authorities do not deny that the murdered and/or
disappeared persons were found in Gambian waters, arrested by Gambian Navy
officials and put in police custody, so how could they be totally exonerated
from any liability when those persons have either disappeared or been killed
within the jurisdiction of the Gambia? What should be borne in mind is that
the Gambian authorities do not become any less culpable or exonerated by
denying official involvement. Acts of officials or agents of a state do not
constitute the only basis for establishing the responsibility of that state
for internationally wrongful acts under international law.

Indeed where a state fails to exercise due diligence to prevent
internationally wrongful acts of private individuals, those acts under
international law are imputable to the negligent state. So even if the
Gambia escapes liability under the excuse that the murders were not
committed by its officials or under their instruction, it can’t possibly
escape on grounds of the failure to take positive measures to ensure that
the incident never even occurred on its territory.

Again under international law a state will be responsible for an
internationally wrongful act committed by private persons if the conduct of
the state subsequent to the wrongful act indicates that it endorses the said
act. For the last four years or so that the murders and disappearances
became public knowledge, the Jammeh regime has not arrested let alone
prosecuted a single person.

Until Ghana filed a complaint with the ECOWAS, the Jammeh regime had treated
Ghanaian delegations led by the Foreign Minister to find diplomatic solution
to the problem with contempt. They simply did not cooperate. Don’t these
actions of the Jammeh regime speak volumes about their complicity in the
whole issue? Don’t they show that Yahaya Jammeh and his government simply do
not care and that they endorse the killings and therefore want to cover up?

In the face of all these how could a supposedly independent Fact Finding
Mission conclude that the Gambia is in no way ‘complicit’ in the murders and
disappearances? And it is more interesting how our government with all the
legal resources available to it could accept such a finding and go ahead to
sign an MOU for its implementation.

Even more intriguing is the contradiction the whole process is fraught with.
In one breath the Gambia is saying that it accepts no responsibility for the
killings but strangely goes on in another breath to say that they are
willing to pay ‘contributions’ to the families of the victims in conformity
with some purported African traditional values shared by the Gambia and
Ghana. What do they take us for …? A bunch of twenty million nitwits?

But what does the acceptance of the fact finding report and the signing of
the MOU mean for the families of the victims and human rights activists who
are dissatisfied with the turn of events and who may want to further take up
the matter? Are there avenues of redress open to them? The answer, I think,
is yes and no.

Clearly families of the victims or a concerned human right NGO may petition
the African Commission on Human and Peoples’ Rights which interestingly
happens to be based in the Gambian capital, Banjul or the UN Human Rights
Committee if the Gambia has ratified the First Optional Protocol to the
International Covenant on Civil and Political Rights (ICCPR).

A complainant who writes to the African Commission or the Human Right
Committee however has some initial legal hurdles to clear before his
complaint will be considered on the merits. The complaint must satisfy the
admissibility requirements some of which are the exhaustion of local or
domestic remedies, and the requirements that the communication must not be
anonymous or based entirely on newspaper reports.

One of the admissibility requirements which will be a huge challenge to a
person complaining about the Gambian killings is the requirement that the
complaint must not be a matter which is being “examined under another
procedure of international investigation or settlement” or one that has
“been settled by [the] states involved…”.In this regard the report of the
UN/ECOWAS Fact Finding Mission coupled with the MOU signed by President
Mills and Yahaya Jammeh are likely to operate as legal barriers to
individuals who may want to further take up the matter.

The likely defense for the Gambian government will be that the matter has
been settled between the two states following an international investigation
conducted by a joint team from the UN and ECOWAS and therefore the complaint
should be declared inadmissible. Looking at the matter from this angle, it
would appear that the issues concerning the Gambian killings have become a
closed book following the acceptance of the fact finding report and the
signing of the MOU by the Ghana government.

The only way by which a complainant before the African Commission or the
Human Rights Committee could overcome the above hurdle is to possibly argue
that the report of the fact finders and the MOU signed are illegal and void
under international law. Indeed under the Vienna Convention on the Law of
Treaties, 1969(i.e. the body of international rules which regulate
agreements between states) an international transaction such as the
Ghana-Gambia MOU could be held to illegal and void.

But before such a conclusion could be reached, it must be demonstrated that
the said transaction was either procured by fraud, coercion and use of force
or that the transaction violates a principle of jus cogens. Jus cogens is
simply a principle of international law recognised as being above all other
principles of international law and to which all other rules of
international law must conform. Jus cogens principles some of which are the
prohibition of slavery, the rules against piracy, genocide and aggression
are absolute legal obligations; it is illegal for any state to derogate from
them.

Therefore in this case if it can be demonstrated that the conclusions of the
UN/ECOWAS fact finders and the MOU are violative of an international law
principle of jus cogens then automatically the way would have been paved for
individuals who wish to resort to international forums for redress. But as
it stands now the conclusions of the fact finders and the MOU will continue
to be huge hurdles for such individual complainants.

This is because international legal opinion is still not settled on whether
or not international human rights law including the provisions of the
Universal Declaration of Human Rights and the African Charter which the
Gambia has wantonly violated has attained the status of jus cogens.

That being the case it appears that the so called settlement agreed between
Ghana and Gambia and which is evidenced by the signing of the MOU on July 1,
2009 has technically shut the doors to the African Commission and the Human
Rights Committee in the face of the families of the victims and concerned
individuals who may have wished to pursue this matter in an international
forum.

It is sad how the Gambia and Jammeh’s regime have been left off the hook in
this manner in spite of the savagery which occurred in that country in
2005.But maybe our consolation should be that God is watching from a
distance; slow He may be, but He will surely execute justice for souls of
those our brothers who perished. “Vengeance is mine and I will repay”—that’s
what He says.

Christopher Yaw Nyinevi
Faculty of Law, KNUST.
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 Story from Myjoyonline.Com News:
http://news.myjoyonline.com/features/200907/32328.asp

Published: 7/7/2009

© Myjoyonline.com

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