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Mr. Darbo,
Thank you for taking the time to straighten out what has been gnawing at some of us since the murder of the prisoners. The cackamane legal arguments they kept putting forward is always suspect. Damn I am pissed off. Excuse my language. The question going forward is how do we redress this blatant injustice? What avenues can we avail ourselves in the international arena if any, bearing in mind the grip the 'professor' has on the judicial system in the Gambia.
Live free or die
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100
percent unlawful: the killings that angered the world and stained a nation
In
a confounding display of reckless and secretive statecraft, even some who still
consider themselves officially connected and in the know swore on their lives that
prisoner killings did not happen in The Gambia notwithstanding BBC and other reports
quoting credible Amnesty International, and Civil Society Associations Gambia (CSAG)
sources. No surprise these fellow citizens live in The Gambia! Under circumstances
less contentious and disgraceful, and with consequences so far reaching for our
public life, a performance of this nature would be hailed a masterclass in
information management.
If
as contended by those who were left to deal with the fallout – the Cabinet and
parliamentary employees of His Excellency Sheikh Professor Alhaji Doctor Yahya
A J J Jammeh (the Professor) - the prisoner killings were on all fours with the
constitutional framework, the critical retort is why such secrecy in a matter
of such national moment.
Assuming
the constitutional framework was complied with, who owned the bodies of the
executed prisoners? Were the families notified in any way about the impending
killings? Were the prisoners killed on Thursday, 23 August, as claimed by
Amnesty, and CSAG sources, or on Sunday, 26 August, as reported by the
Professor’s government? Were the prisoners killed by hanging, firing squad,
lethal injection, or by methods less comprehensible to the lay person in
matters of terminal and violent state conduct? Where was the location of the
allegedly constitutionally sanctioned killings? What was the actual number of
prisoners killed? What was the rationale behind killing nine people on the same
night, perhaps at, or about the same time? Why were there no verifiable public reports
of observers independent of government witnessing the killings?
Over
time, others would no doubt elucidate and educate Gambians and friends of The
Gambia on some, perhaps all of the above questions on this rather
incomprehensible development in our public life. For present purposes, my
concern is limited to the simple inquiry of whether there is a legally implementable
death penalty law in The Gambia. In other words, were the killings constitutionally
permitted as claimed by the Professor and his Cabinet, by some APRC National
Assembly members, and by the hordes of party supporters, and so-called councils’
of elders from around the country.
In
my view, there is currently no constitutionally implementable death penalty law
in The Gambia, and regardless the actual date of killings, the Professor’s
government gravely erred in relying on section 18 of the 1997 Constitution of
the Republic of The Gambia (the Constitution) as justification for killing purported
death row prisoners. I cannot overemphasise the illegality of the prisoner
killings. Let us examine the pertinent law!
The legal framework
around the death penalty
Section 18, 1997
Constitution of The Gambia Protection
of right to life
(1)
No person shall be deprived of his or her life
intentionally except in the execution of a sentence of death imposed by a court
of competent jurisdiction in respect of a criminal offence for which the
penalty is death under the laws of The Gambia as they have effect in accordance
with subsection (2) and of which he or she has been lawfully convicted
(2)
As from the coming into force of the Constitution,
no court in The Gambia shall be competent to impose a sentence of death for any
offence unless the sentence is prescribed by law and the offence involves violence,
or the administration of any toxic substance, resulting in the death of another
person
(3)
The National Assembly shall within ten years from the date of the coming into force of
this Constitution review the desirability or otherwise of the total abolition
of the death penalty in The Gambia.
Section 226, 1997
Constitution of The Gambia Alteration of the Constitution
(2) Subject
to subsection (4), a Bill for an Act of the National Assembly under this
section shall not be passed by the National Assembly or presented to the
President for assent unless-
(a) Before
the first reading of the Bill in the National Assembly, the Bill is
published in at least two issues of the Gazette, the latest publication
being not less than three months after the first, and the Bill is
introduced into the National Assembly not earlier than ten days after
the latest publication, and
(4) A Bill for an Act of the National Assembly
altering any of the provisions referred to in subsection (7) shall not be
passed by the National Assembly or presented to the President for assent unless-
(a)
the Bill is published and introduced in the manner required by
paragraph (a) of subsection (2),
(b) The Bill is supported on the second and
third readings by the votes of not less than three quarters of all the members
of the National Assembly,
(c) the Bill
has been referred by the Speaker to the Independent Electoral Commission
and the Commission has within six
months of such reference, held a referendum on the Bill and
(d) at least fifty percent of the persons
entitled to vote in the referendum have taken part in the referendum and the
Bill is supported in the referendum by at least seventy five percent of those
who voted
(7) Subsection (4) applies to-
(a) this section
(b-d)
(e) Chapter IV (which provides for the
protection of fundamental rights and freedoms)
(f-l)
DEATH PENALTY
RESTORATION ACT Cap 11:02, Laws of The Gambia, 2009
[Decree
No. 52 of 1995]
[Date of commencement:
10th August, 1995]
1. Short title
This Act may be
cited as the Death Penalty (Restoration) Act
2. Restoration of death penalty provisions in Caps.
10:01, 11:01 and 19:01
The sections
contained in-
(a)
the
Criminal Code
(b)
the
Criminal Procedure Code, and
(c)
The
Gambia Armed Forces Act,
Prior to the
enactment of the Death Penalty (Abolition) Act 1993, which were amended by that
Act are hereby restored in their respective enactments and shall be construed
accordingly as if that Act had never been passed
Provided that a person shall not be sentenced to death on a charge of murder or
treasonable offence committed between the period of enactment of that Act and
the coming into force of this Act.
3. Repeal
The Death
Penalty (Abolition) Act 1993, is hereby repealed.
Analysis
of law and facts
From the onset, there
is absolute clarity on the fact that section 18, as part of Chapter IV of the
Constitution, is an entrenched provision. The fundamental point to note is
therefore that in light of the constitutional architecture on entrenchment, the
National Assembly has no unilateral capacity to “review the desirability or otherwise of the total abolition of the
death penalty in The Gambia”. In simple terms, section 18(3) of the
Constitution mandates the National Assembly to initiate a referendum process on
“the desirability or otherwise of the
total abolition of the death penalty in The Gambia”. The National
Assembly can only validly act in collaboration with the electorate. And the
referendum, a “yes” or “no” vote on the simple question of whether The Gambia
should maintain the death penalty must take place by 16 January 2007 at
the very latest.
Albeit partially, I
concede there is an argument The Gambia had a valid death penalty law from 10
August 1995 when the AFPRC reinstated it, up to, and including 16 January 2007.
That validity, sanctioned by a higher law and encapsulated in 18(1), and 18(2)
of the Constitution, lapsed on 16 January 2007. On 17 January 2007, an automatic moratorium on conviction, sentence,
and implementation of the death penalty kicked in by virtue of section 18(3) of
the Constitution.
In other words, section
18 (1) and (2) ceased to have effect and were placed in abeyance by the express
overriding qualifier of 18(3) in so far as the constitutional command of a referendum
on the death penalty did not take place.
All death sentences not implemented as of 16 January 2007 were
constitutionally stayed. And all death sentences imposed since 17 January 2007
were legally invalid. All of the 23-26
August 2012 prisoner killings were therefore unlawful! The supremacy clause
at Section 4 of the Constitution overrides the Death Penalty Restoration Act
1995 (see Cap 11:02, Laws of The Gambia,
2009)
Considering the
constitutional timelines around a mandatory review of the death penalty law in
The Gambia, even 16 January 2007 as an absolute deadline must be construed as somewhat
of a charitable interpretation of the law. The outer deadline of ten years assumes
the referendum process was in motion in accordance with the stipulated
timelines in section 226 (2)(a) of the Constitution regarding publication of a
pertinent Bill in at least two issues
of the Gazette, the latest publication being not less than three months
after the first, and the Bill is introduced into the National Assembly not
earlier than ten days after the latest publication. This alone is a
clear 100 days before the mandatory
“review” deadline of 16 January 2007!
On commencement of the Bill’s
journey through the National Assembly, it may take a good two to three months
through the third reading and voting on the matter in the legislative chamber.
After this constitutionally mandated journey in the National Assembly, the
Speaker must refer the Bill to the
Independent Electoral Commission which must, within six months of such reference, organise a referendum on the Bill. As the
wording on timelines permit some discretion on when certain things happen,
e.g., “within six months”, it is reasonable to assume that from the first
reading of the death penalty retention or abolition Bill in the National
Assembly through the holding of a referendum by the IEC, a solid six to nine
months could, at the very least, lapsed.
What this means is that
a referendum process must have commenced in January 2006 to avoid legal
uncertainty over the death penalty issue. Although the commencement of a
referendum process in January 2006 would not have invalidated sections 18(1)
and (2), it would have suspended the implementation of the death penalty
pending the verdicts of the National Assembly and the electorate. Since the
mandatory referendum process was not even attempted, a strict application of
section 18(3) suggests the death penalty was in abeyance as early as January
2006.
What implications then
for individual prisoners killed by the Professor’s government?
Tabara Samba, sentenced
to death on 26 September 2007, was neither validly convicted nor sentenced in
light of the fact that sections 18(1) and (2) lapsed by virtue of the
referendum requirement on the death penalty as stipulated in subsection (3).
The same applies to: Dawda Bojang, 30 July 2010; Buba Yarboe, 03 November 2010;
and Malang Sonko, 30 January 2012. None of these four people were validly
convicted, or sentenced to death. Killing them was unlawful. The Constitution
gave no permission!
As for Ex Lieutenant
Lamin Jarjou, Ex Sergeant alias Ex Lieutenant Alieu Bah, and Ex Sergeant Lamin
F Jammeh, they were all validly sentenced to death on 27 October 1998. Ditto
Gebe Bah, sentenced to death on 30 January 2004 (I make no pronouncement on the
actual trials). For these four, the unlawfulness in killing them is rooted in
the fact that Gambia’s overriding death penalty law lapsed on 16 January 2007.
In accordance with the supreme law of the land, they were, at worst, entitled
to legitimate expectations of life in prison. The Constitution prohibited their
killings!
Standing by itself is
the case of Lamin B S Darboe. He was sentenced to death during the First
Republic, on 03 December 1986. According to the Press Release entitled
“Warrant/order for Execution” issued 27 August 2012, by the Ministry of the
Interior, Mr Darboe “appealed against conviction and sentence on 18th
day of June 1988 and the said appeal was dismissed”. There is a palpable
perversity about the above quoted material from the Ministry of the Interior. It
is frightening that our government had the audacity to issue such a cavalier
and misleading statement on the utterly unlawful killing of Mr Darboe.
Even granting that his
appeal was dismissed “on 18th day of June 1988”, the legal landscape
underwent a complete alteration when the PPP government abolished the death
penalty in 1993. Even before the Professor’s government entered the political
scene, Mr Darboe was no longer a death row prisoner. By virtue of The
Death Penalty (Abolition) Act 1993, his sentence was commuted to life behind bars, a terminology in need
of clarification.
.
With all his power, the
Professor has no authority to retrospectively reinstate Mr Darboe’s death
sentence. Indeed, the Death Penalty (Restoration) Act 1995 expressly prohibited
any such move. In clear language, it says: Provided that a person shall not be sentenced to death on a charge of murder or
treasonable offence committed between the period of enactment of that Act and
the coming into force of this Act. I leave it to others to ferret out the
reasons behind Mr Darboe’s unlawful killing. No question he was unlawfully
killed!
As myriad delegations
from around the country trooped into the Vice President’s office to profess and
renew loyalty to the Professor, exculpate him from allegations of unlawfully
killing prisoners, and blaming the Constitution instead, I am reminded of the
massive difficulties embedded in our one-man political system. It is an utter
farce for uninformed so-called councils’ of elders to pontificate on
constitutional clauses of great moment, And especially as some of these high
priests and priestesses on the unquestionable legality of the killings are
unlettered in the language of the Constitution. I urge Gambians to reject age
as an exclusive barometer for deciphering judgement and credibility. If this
momentous issue of legality eluded government lawyers – assuming prior
consultation – it is hard to see how the unlettered can decipher the esoteric
legal architecture of Gambia’s death penalty laws.
As the government
anchored its justification for the prisoner killings in constitutional
permission, some form of national debate around that alleged legal
authorisation must be entertained. To talk about democracy and eschew public
conversation on momentous questions of life and death cannot garner credibility
from the informed and conscientious.
If only for this,
interposing sovereignty cannot in anyway be dispositive of the question of
legality. Ditto the contention that other nations also have, and do implement,
death sentences. And no amount of mere assertion that the Constitution
permitted the August 23-26 killings can legitimise the illegitimate.
Sovereignty and company are merely political arguments. I now challenge the
Professor and his government to publish its legal advice in light of the
formidable and absolute clarity of section 18(3) of the Constitution, a section
that operates in a manner akin to a statute of limitations
.
An elemental reading of
18(3) ought to have triggered some consultation with the government’s legal
advisers. The killings were more complicated than the sovereignty sideshow, and
the issues inherent in this farcical transaction are infinitely more
significant than the shameful contention our republic is a proud member of a
crowded field of state executioners and must therefore not be singled out for
widespread global condemnation.
Those who contend that
the killings were legal are wrong.
I challenge them to
tell us how a nation rights a wrong of such magnitude? How does it remove such
stain on its conscience?
Lamin J Darbo
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