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Preliminary observations of the Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to The Gambia (12-19 June 2017)

​19 June 2017

Introduction

A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) concluded an eight-day official visit to The Gambia. The visit took place from 12 to 19 June 2017.

The delegation was composed of the Chair of the WGEID, Ms. Houria Es-Slami, and Mr. Henrikas Mickevicius, member of the WGEID.

At the outset, the WGEID wishes to thank the Government of The Gambia for extending an invitation to visit the country, and for the efforts made before and during the visit, in particular by the Ministry of Foreign Affairs, to facilitate its smooth undertaking. It welcomes the fact that virtually all meetings requested by the WGEID, at all levels, were accommodated and thanks the Government for its openness.

The WGEID also wishes to thank the Office of the United Nations Resident Coordinator in The Gambia and the Regional Office of the Office of the High Commissioner for Human Rights in West Africa, for their support.

During the visit, which took place at a crucial moment in the transitional period following the Presidential elections in December 2016, the WGEID perceived a prevailing sense of hope and relief for what has been defined by many as “The new Gambia”. The WGEID has received information from the Government, victims, and civil society organizations and discussed with all stakeholders the measures to prevent and eradicate enforced disappearances, as well as issues related to truth, justice and reparation for the victims.

The WGEID met with the State President, the Speaker of the Parliament, the Minister of Foreign Affairs, The Minister of Interior, the Chief Justice, the Solicitor General, the Chief of Defence Staff and the Inspector General of the Police. It also met: the Permanent Secretary of the Ministry of Interior; the Deputy Director for Prosecution; the Special Advisor of the Attorney General, the members of Defence and Security Committee of the National Assembly; members of Parliament from the Foni region; the Prisons Directorate; the Deputy Director of the State Intelligence Service and other staff; and the Panel of Missing Persons within the police.

The WGEID met relatives of disappeared persons and also held a meeting with representatives of civil society including NGOs, human rights defenders and lawyers. It wishes to thank all stakeholders met, and in particular the relatives of disappeared persons who shared their testimonies with the WGEID.

The WGEID visited the greater Banjul area and the burial sites in Tanji and in the Titinba Forest (Foni region). It also visited the Mile 2 Prison and the SIS (former NIA) building and attended a meeting of the National Council for Civic Education’s (NCCE) dialogue session for the Kanilai community.

 

Over the years, the WGEID has transmitted 12 cases of enforced disappearances to the Government of The Gambia, of which 4 are still outstanding. The cases relate to disappearances occurred between 2006 and 2015, with one case concerning a disappearance allegedly occurred in 1995, reportedly perpetrated mainly by officers of the former National Intelligence Agency (NIA). The eight individuals whose cases were clarified were released from detention. As in virtually all countries facing the issue of enforced disappearances, also in The Gambia the number of cases reported to the WGEID is not illustrative of the real dimension of the problem. This is also recognized by the authorities, who have described this practice as widespread in the past. A number of new cases have been received by the WGEID during the visit. Victims of enforced disappearances also reportedly include more than 40 migrants from Ghana who would have disappeared after having been arrested in July 2005.

The invitation extended by the Government to the WGEID and its increasing openness to international engagement are very positive and encouraging steps. Today, the Gambian Government has the challenge and the opportunity to undertake a comprehensive set of measures towards the achievement of democratic and constitutional reforms – including of the security sector and the judiciary - and the full respect of rule of law and human rights, including the rights to truth, justice, reparations, memory and guarantees of non-repetition for the victims of human rights violations, their families and the Gambian society as a whole.

The WGEID welcomes with satisfaction the current Government’s commitment and resolve to address the problem of enforced disappearances in The Gambia, reiterated during many of the meetings held, including by the highest authorities of the country. The WGEID is ready to support the Gambian Government and society in this process.

Below are a number of preliminary and non-exhaustive observations and recommendations on a number of issues, which will be developed further in the country visit report to be presented to the United Nations Human Rights Council in September 2018.

Legislation

The WGEID welcomes the Government’s commitment to ratify the International Convention on the Protection of All Persons from Enforced Disappearances, as expressed in a number of meetings with the authorities. It encourages the Government to ratify the Convention as soon as possible without reservations and with the express recognition of the competence of the Committee on Enforced Disappearances according to articles 31 and 32 of the Convention.

The ratification should be accompanied by implementing legislation making enforced disappearances an autonomous crime in the Penal Code consistent with the definition given in the 1992 Declaration on the Protection of All Persons from Enforced Disappearance (the Declaration) and punishable by appropriate penalties that take into account its extreme seriousness. The legislation should also cover the various modes of criminal liability, including in relation to any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. It should also expressly provide for the application of command or superior individual criminal responsibility for such crime. In addition, it should expressly mention that enforced disappearance is a continuous crime to which amnesties or immunities cannot be applied. The inclusion of an autonomous crime of enforced disappearance in domestic criminal legislation, though, should not be dependent on or conditional to the ratification of ICED.

Given the importance of these instruments for the protection of human rights in general and the prevention of enforced disappearances in particular, the Government should also urgently ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol. Likewise, it should speedily ensure that torture is established as an offence in national law, adopting a definition of torture that includes all the elements contained in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Truth

The WGEID, in its General Comment on the right to the truth in relation to enforced disappearance, stated that the right to the truth “means the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, and the circumstances of the disappearance, and the identity of the perpetrator(s)” (A/HRC/16/48, para. 39).

The WGEID notes in this respect the current discussions around the establishment of a forthcoming Truth and Reconciliation Commission (TRC), announced by the Government as one of the first and main measures to address the past violations, including enforced disappearances, within the envisaged transitional justice process. A stakeholders’ conference was convened in Banjul between 23 and 25 May 2017 to kick off the discussion about the main pillars of the transitional justice process. The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, visited the Gambia in preparation of the stakeholders’ conference to provide inputs on the discussions about transitional justice. The Government of the Gambia should continue to cooperate with the Special Rapporteur’s mandate in this regard.

The WGEID herewith provides some general remarks on this process while being ready to assist with further and more detailed comments in relation to its specific mandate, if required.

While supportive of the establishment of such a mechanism, the WGEID underlines that transitional justice measures are broader than a TRC and that the design and implementation of all measures taken in the areas of truth, reconciliation, justice and reparation should be parallel and go hand in hand, encompassing truly inclusive, good faith, consultative and participatory methods, notably with the victims of human rights violations, including victims of enforced disappearances. The process needs to be well-thought, tailored to the specificities of the country and designed in order to allow proper national consultations as well as the necessary communication and awareness-raising measures to manage the expectations of victims. It is essential that all communities and ethnic groups are duly consulted and represented. The TRC should be composed of highly professional and independent members after a full and thorough vetting process. The institution should also adopt a victim-centred approach, and be fully accessible to the families of disappeared persons.

The Government has already taken a number of steps to search for those who have disappeared and should continue to do so with the assistance and support of the international community. In this respect, the WGEID met with the Panel on Missing Persons, a specialized task-force created within the Police in February 2017 specifically to look into cases of enforced disappearances committed between 1994 and 2016. They reported that they are currently investigating 35 possible cases of enforced disappearances but that the number may be higher as relatives are still coming forward to present their cases as times goes by. It is very important that families are duly informed about the investigations and that regular channels of communications are established for that purpose.

Two burial sites have been already identified in Tanji and in the Titinba Forest near Bwiam (in the Foni region) and the remains of four disappeared persons have been exhumed. The WGEID has visited both sites and believes that the exhumation of these bodies is certainly a positive step. There are however some obstacles in the identification of the bodies due to the lack of adequate technical means and resources, notably for appropriate DNA testing.  

According to the information received by the WGEID, there are in addition a larger number of disappeared persons whose bodies are believed to have been thrown in wells or graves in or around the village of Kanilai, in the Foni region. However, due to the lack of adequate technical means and resources as well as the geographical characteristics of the land, the exact places of burials have not been identified yet. Reports have also been received in relation to a possible mass grave in the Army Barracks in Yundum, where 13 army officers who had allegedly participated in an attempted coup in November 1994 would have been buried.

It is evident that there is a critical and urgent need to improve the forensic capacity and technical means of all those involved in the exhumation and identification of bodies as well as on the ensuing criminal investigation, especially in relation to DNA testing and forensic anthropology. The Government should also be proactive in the identification of new mass graves, and provide the necessary equipment to probe their location. The Gambia needs technical cooperation and assistance in this respect.

The WGEID also emphasizes that access and meticulous preservation of all existing archives is essential to secure the rights to truth and justice and that access to archives, including those of security sectors institutions, should be guaranteed for the purpose of the search of the disappeared.

Justice

The Declaration requires that the State guarantees to victims of enforced disappearance an effective remedy that includes a thorough and impartial ex officio investigation with a view to identifying those allegedly responsible for the disappearance and imposing the appropriate penalties taking into account the extreme seriousness of the crime, with the exclusion of capital punishment. Mitigating circumstances though may be established in national legislation for persons who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive or in providing voluntarily information which would contribute to clarifying cases of enforced disappearance, as established in article 4(2) of the Declaration.

 

The WGEID notes that while reconciliation is a fundamental element of the transitional justice process, it cannot be achieved at the expense of the rights of the victims. In this context, a fundamental element to take into account is that cases of enforced disappearances dealt with by the envisaged TRC should not lead to amnesty, in accordance with article 18(1) of the Declaration. In this respect, it is essential for the national justice systems and transitional justice processes to work closely together.

Only in one case the investigation carried out by the Panel of Missing Persons has been completed and is in the adjudication phase, notably the case of Mr. Solo Sandeng, where 9 former agents of the NIA (including the former Director) have been arrested, charged with conspiracy and murder (among other counts) before the Banjul Magistrate Court. The trial is ongoing and awaiting for the results of the DNA exam to proceed.

Investigation is also ongoing in a number of other cases though it is being delayed either due to difficulties in the exhumation and/or identification of the bodies or due to the fact that perpetrators are at large, including abroad (notably in Guinea Bissau). A number of army officers have been arrested and detained in connection with the disappearance of four individuals allegedly involved in a coup attempt against the former President in December 2014. The WGEID received allegations that procedural guarantees and due process might not have been followed in relation to their detention. Those arrested are being detained under the Military Act and will be presumably prosecuted by Court Martial under military jurisdiction.  In this respect the WGEID emphasizes that, according to the Declaration, no role or intervention should be given to the armed forces in the prosecution and trial of enforced disappearances.

The WGEID encourages the relevant authorities to continue their efforts in investigating all cases of enforced disappearances given that, as reiterated on many occasions, lack of accountability for enforced disappearances may be a source for new violations in the future. It is encouraging that a specific task-force (the Panel on Missing Persons) has been created within the Police to investigate cases of enforced disappearances. However, this unit needs to be reinforced and provided with the necessary skills, equipment and resources to properly carry out its functions.

Relatives of disappeared persons have indicated their concern in relation to the fact that a number of perpetrators are still at large, some reportedly still holding official positions in  State institutions. This is why it is of outmost importance to take appropriate measures to fully ensure the protection of relatives and witnesses throughout their contact with the criminal justice process, as well as to foster the conditions encouraging more witnesses to provide crucial information. Equally important in this respect is a process of human rights vetting in all security sector institutions, including the Army, as those involved in past human rights violations cannot be part of the search, investigation or prosecution of the disappeared persons.   

Another measure that needs to be taken within the justice sector is to strengthen the impartiality and independence of the judiciary, as there seems to generally be little confidence in judges and prosecutors.

The WGEID would also like to underline again the importance of introducing an autonomous crime of enforced disappearance in the penal legislation, as the lack thereof creates a situation whereby acts of enforced disappearances are investigated and prosecuted under other crimes (e.g. murder, abduction or arbitrary deprivation of liberty), which is highly problematic in terms of the specific investigation required from the outset in cases of enforced disappearances. This also creates a situation whereby suspects of enforced disappearances can be acquitted if the standards of proof for the other crimes of which they are accused are not met.

 

Reparation and memory

All victims of enforced disappearances and their relatives have the right to full reparation, which includes compensation, satisfaction, restitution, rehabilitation and guarantees of non-repetition, as provided for in article 19 of the Declaration.

The WGEID received testimonies related to the difficult economic situation that relatives of those who disappeared suffer. Particularly, it saw how mothers, wives and children were left in economic hardship without little or no support. It recommends that the Government develops a national reparations policy, considering the specific needs of women and children, and make adequate provisions in this regard, with the support of the international community.

In a case of disappearance the victim is not only the person who disappears but also any other person, particularly the next of kin who suffers as a consequence of the disappearance. The Government should also adopt programs of psychosocial support for victims, including for survivors of enforced disappearance.

The WGEID also recommends that the Government adopts a policy regarding the issuance of certificates of absence, which permits the recognition of some rights and entitlements to the relatives of the disappeared.

The WGEID emphasizes the importance of State-sponsored memorials as well as the State’s support for civil society remembrance initiatives, including their proper maintenance, for the benefit of the Gambian people and the new generations in particular.  

 

Prevention of enforced disappearances

Awareness-raising, training and human rights education

In order to prevent recurrence of enforced disappearances, it is essential to properly educate generations to come and to provide society in general, and civil servants in particular, with adequate human rights training. The WGEID emphasizes the importance of including the necessary education and information regarding the relevant provisions of the Declaration in the training given to law enforcement personnel, civil or military, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty. Training for judges, prosecutors and lawyers is equally important. The WGEID emphasizes that a request for capacity-building and adequate training came from virtually all official authorities met during the visit, and cannot be unanswered.

It is also very important to support the work of civil society organizations, including those working on behalf of the victims of enforced disappearances, notably through the provision of appropriate resources and adequate capacity-building.

Oversight of security sector conduct

One important element of prevention of enforced disappearance is that independent mechanisms of oversight exist to monitor the conduct of law-enforcement and security officials. The WGEID notes in this respect the establishment in 2012 of a human rights police unit with this mandate. According to the information received during the visit, while this unit was previously within the police structure, it has now been moved within the Ministry of Interior, in order to enhance its independence and efficiency. However, only two officers are part of this unit, which also suffers from scarce resources, notably in terms of office space and mobility, as well as lack of adequate training. This should be remedied soon, including with a view to establishing local cells of this unit outside Banjul.

The police human rights unit though does not cover the conduct of the SIS (former NIA). It is unclear whether an oversight mechanism monitoring the conduct of the intelligence services actually exists. The same applies to the Army. The Defense and Security Committee of the National Assembly seems to formally have this power though it has never been reportedly used, mainly because of fear of repercussions under the former regime, in particular through the use of article 91(d) of the Constitution, which de facto affected the free exercise of the parliamentarian mandate. The WGEID recommends that all security sector institutions - including the military - be subjected to an independent oversight mechanism.

Registration of deprivation of liberty

According to the Declaration, an official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention and all States should take steps to maintain centralized registers (article 10(3)). During the visit to the Mile 2 prison, the WGEID could observe that such centralized system does not exist in The Gambia and that the absence of a digital system - everything is still manually transcribed - renders inaccuracies frequent and abuses possible. The Government should urgently address this issue in order to build a nation-wide system of registration of all persons deprived of liberty.

The WGEID also feels compelled in reporting some of its additional findings during the visit to the Mile 2 Prison. The WGEID observed the extremely poor conditions of detention of the prisoners, though with palpable and inexplicable differences within the same wings. Conditions are especially deplorable in the high security and remand wings, where some prisoners have been reportedly held for up to 7 years in pre-trial detention. There is also a serious problem of overcrowding in the remand wing. In addition, in the short time that the delegation spoke to prisoners therein, it heard a number of concerns, including regarding prisoners with reportedly mental disabilities being held on remand for a very long time or foreigners on remand for several years without the family being informed of the detention. The living conditions of the prison officers are also deplorable. The WGEID urges the Government to dismantle the Mile 2 Prison and appreciates that the concerned authorities are aware of the urgency to address this issue. The unacceptable delays in trials resulting in extremely long periods of pre-trial detention should also be swiftly addressed.

Conclusion

During the visit the WGEID perceived a prevailing sense of hope and relief for “The new Gambia”, after 22 years of an authoritarian regime, during which serious human rights violations were committed. There is a real opportunity for lasting change to be achieved, especially if the Government squarely faces and addresses the past human rights violations.

It is encouraging that the Government is willing to undertake a comprehensive set of measures towards the achievement of the needed democratic and constitutional reforms – including of the security sector and the judiciary - and the full respect of rule of law and human rights, including the rights to truth, justice, reparations, memory and guarantees of non-repetition for the victims of human rights violations, their families and the Gambian society as a whole.

A forthcoming Truth and Reconciliation Commission (TRC) has been announced by the Government as one of the first and main measures to address the past violations within the envisaged transitional justice process.

The WGEID supports the establishment of this mechanism, while stressing that transitional justice measures must be understood in a broader way and that all measures taken in the areas of truth, justice and reparation should be parallel and go hand in hand. Among other elements, participatory methods, appropriate and regular communication, and consultation with the victims of human rights violations, including victims of enforced disappearances, are crucial.

Other measures that should accompany this process are human rights vetting in all institutions of the security sector, and a strengthening of the efficiency and independence of the judiciary. It is essential for the national justice systems and transitional justice processes to work together hand in hand.

The WGEID recognizes that while reconciliation is an essential element of this process, it cannot be achieved at the expense of the rights of the victims.

It is also of outmost importance to create an adequate legal and institutional framework to prevent enforced disappearances to occur again in the future, and ensure its adequate implementation. Some of these measures can be taken swiftly, such as the ratification of the International Convention on the Protection of All Persons from Enforced Disappearance and the introduction of an autonomous crime of enforced disappearance in the penal legislation.

The WGEID also calls for the immediate closure of the Mile 2 prison.

The WGEID reiterates its willingness to continue its constructive dialogue with the Gambian authorities and offers its unreserved support for the full implementation of the Declaration.

The Gambia needs the support of the international community in this transition period, notably the provision of adequate resources, technical assistance, capacity-building and training.

The WGEID reaffirms its solidarity with the victims of enforced disappearance and their relatives. Their continued suffering is the living proof that enforced disappearance is a continuous offence and a permanent violation of their human rights until the fate or whereabouts of the victim is clarified.