Saturday, October 19, 2019

Is The TRRC A Special Criminal Court Or A Truth Commission? Caution Should Be Exercised


The TRRC is established by an Act of Parliament by Gazette No. 2 of 24th January 2018.

The Commission is a body corporate which should not be subjected to the direction or control of any authority save the Constitution and the Truth Reconciliation and Reparation Commission Act. The Commission has functions and powers. Section 14 of the Act establishes its functions as follows:

Section 14 (1) states:

“The Commission shall initiate and coordinate investigations into

  • Violations and abuses of human rights;
  • The nature, causes and extent of violations and abuses of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations and abuses;
  • The identity of all persons, authorities, institutions and organisations involved in such violations;
  • The question whether such violations were the result of deliberate planning on the part of the State, its organs or other groups or an individual;
  • The gathering of information and the receiving of evidence from any person, which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victims; and
  • Determining what evidence have been destroyed by any person in order to conceal violations and abuses of human rights.”

What is it to do after conducting its investigations? It certainly has no powers to pass judgment and acquit or discharge a person. Its mandate is to submit reports as follows:

Section 14 (4) indicates

“The Commission shall –

  • After one year of its establishment, submit an interim report to the president, detailing its activities;
  • After the end of its mandate –
  • Prepare a comprehensive report, which sets out its activities and findings based on factual and objective information and evidence collected, received by it or placed at its disposal, and
  • Make recommendations to the President with regard to the creation of institutions conducive to the development of a state and democratic society as well as the institutional, administrative and legislative measures which should be taken in order to prevent the commission of violations and abuses of human rights.”

Hence the Commission needs an environment which will enable both sufferers of wrong doing and perpetrators to have trust that it will gather information that is vital to document what happened so that those unalloyed happenings would form the basis of forming a fair opinion of the state of affairs regarding any allegation of human rights violation. The state should recognise that the Commission has its powers to prevent contempt either by giving false evidence or making attempt to interfere with witnesses. The Constitution is very clear on this. Even though section 15 (2) tends to minimize the Constitutional powers and requires to be read in association with section 202 subsection (2) of the Constitution which should oust it.

Even if it comes to the implementation of section 36 it is the Commission that should initiate police investigation through direct referral rather than using the office of the President. The executive should stay out of the work of the Commission if the process is to be freed from any allegation of undue interference.

Gambia is going through what it has never been through since 1965. There was no truth and reconciliation commission after 1981 and no truth and reconciliation commission after the change of 1994. There is now a truth and reconciliation commission after the 2016 change.

The objective is to ensure that no matter how gruesome the action, the perpetrator must not be intimidated not to come out and tell the truth. This is the most difficult part.

The nation will not be able to heal until we go through this path, without judgment being passed until all the facts are known and corroborated.

South Africa heard the testimony on the gruesome murder of Steve Biko. However, it managed to prevent the perpetrators from feeling insecure, thus preventing them from moving into adventurism and the suicide trail. In order to have truth and justice we must balance justice with fairness and mercy.

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