Introduction

The ultimatum by ECOWAS to Yahya Jammeh to leave The Gambia by noon local time on January 20, 2017 or face a forceful removal or arrest is interesting to note. The Chairman of the ECOWAS Commission, Marcel Alain de Souza, is quoted as saying that "If by midday, he [Mr Jammeh] doesn't agree to leave The Gambia under the banner of President Conde, we really will intervene militarily."

The main reason Jammeh wanted to stick to power was to avoid possible prosecution for the numerous heinous human rights violations which he is alleged to have committed which, if proven, would constitute crimes against humanity. It is the same reason (fear of prosecution) which forced him out of the country on Saturday, 21 January 2017.

This view is confirmed by his statement of January 11 2017 in which he is quoted as having appointed a national mediator to meet "all parties to resolve any mistrust and issues" and draft an amnesty bill to ensure there was "no witch-hunt so that we can restore a climate of confidence and security."

It is to avoid such scenarios that the framers of the Rome Statute of the International Criminal Court (ICC), in their wisdom, provided in the Statute and endorsed the position that for certain acts which violate jus cogens norms, sitting heads of state should be brought before the ICC to face justice if their state is unable or unwilling to try them.

Jammeh’s human rights record

The litany of violations Jammeh is alleged to have committed is well-documentd by Amnesty International, Human Rights Watch, the UN Human Rights Council and many other bodies. They cover violations of the right to self-determination of the people of The Gambia (on two occasions – how he came to power through unconstitutional means and how he attempted to cling to power, also through unconstitutional means).

The African Commission on Human and Peoples’ Rights issued 5 resolutions against Jammeh on his poor human rights record. In one of such (Resolution 134), the Commission summarized the state of human rights in The Gambia by referring to the “routine allegations of unlawful arrests and detentions, torture in detention, unfair trials, extrajudicial executions and enforced disappearances by State Security Forces, which target human rights defenders, journalists, and all persons suspected of involvement in the attempted coup to overthrow the Government of The Gambia.” It also requested for the immediate and unconditional release of Chief Ebrima Manneh, Kanyie Kanyiba and all prisoners of conscience.

This resolution was issued in support of the 5th June 2008 judgement of the ECOWAS Community Court of Justice which had ordered the release of Chief Ebrima Manneh from unlawful detention and the payment of the damages awarded by the Court.

The legality of granting refuge, immunity, impunity to rights violators

ECOWAS’s decision had been pre-empted by Nigeria’s Lower House of Assembly which voted on Thursday, January 12, 2017 to offer Jammeh asylum if he stepped down. While he initially declined that offer, ECOWAS and the AU piled pressure on him to accept that or face forceful removal from office and arrest.

However, that decision is in violation of international law, which includes AU and ECOWAS laws. First, according to Article 1(F) of the 1951 UN Convention relating to the Status of Refugees, a person is not entitled to be granted refugee status if,

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(c) He has been guilty of acts contrary to the purposes and principles of the United Nations

While this provision seems to indicate that the person should have already been convicted of the crime, the AU position is different. Article 5 of the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa,

“The provisions of this Convention shall not apply to any person with respect to whom the country of asylum has serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(c) he has been guilty of acts contrary to the purposes and principles of the Organization of African Unity;

(d) he has been guilty of acts contrary to the purposes and principles of the United Nations” [Emphasis added].

One may further argue that the particular country of refuge may not have such “serious reasons” to consider that Jammeh has committed any of these crimes. However, to take such a stance will be in violation of the AU Constitutive Act which provides that the organization shall function in accordance with the following principles, which include “respect for the sanctity of human life, condemnation and rejection of impunity  …  and subversive activities; and, “condemnation   and   rejection   of unconstitutional   changes   of governments.”

It is also important to refer to the High Court of Nigeria case of Egbuna v Taylor, Anyaele v Taylor, brought against Charles Taylor in 2004 while he was in exile in Nigeria, which technically ruled against the Nigerian government and the AU. The applicants instituted the action to determine whether they could seek judicial review, in a domestic court, of an executive decision granting asylum to a person indicted by an international tribunal, arguing that Taylor had been wrongly granted asylum in Nigeria. The court rejected the argument of Nigeria that the act of granting asylum was a diplomatic issue and not one for the applicants. This is a very important decision which should guide any country that would want to grant asylum to Jammeh.

The legal obligations that will be violated if Jammeh is granted refuge anywhere include the non-recognition of refugee status to persons in violation of international crimes and also the duty not to grant amnesty in relation to crimes that are contrary to jus cogens norms.

Therefore, any state that would purport to give asylum to Jammeh should reckon that that decision will come back to haunt it because, like the Habre case, the victims will not keep silent.

The best option for Jammeh?

The Gambia is a State Party to the ICC. Therefore, it is expected of it to try Jammeh for possible crimes against humanity within its domestic courts. If it proves unwilling or unable to try him, then under the complementarity rule, jurisdiction will be transferred to the ICC to do the same.

For that matter, President Adama Barrow may have suggested a soft landing for Jammeh when he proposed the setting up of a truth and reconciliation commission. Yet, even in that case, as was in Sierra Leone, there are some serious crimes which cannot be swept under the carpet and for which the perpetrators should be made to face full justice, internally or externally.

What is clear at this point is that Jammeh will face justice for the crimes he is alleged to have committed, possibly alongside some other Ministers of State and the Chief of Defence Staff. But the question then is, will Jammeh be better off facing the music within The Gambia or outside? It is the author’s view that it would have been better for Jammeh to stay within and negotiate for a softer landing.

The likely scenarios when outside The Gambia is that he will be subjected to a Hissene Habre-style Special Chambers trial as recommended by the Committee of Eminent Jurists of the AU, or he will be taken to the ICC. One thing which is sure is that he will not enjoy amnesty or immunity, as it happened to other leaders like Idi Amin (Uganda) or Haile Mariam (Ethiopia) who is alleged to be still in hiding in Zimbabwe. Times have changed.

It is also important to note that the ACDEG provides in rticle 25(5) thereof that “Perpetrators of unconstitutional change of government may also be tried before the competent court of the Union.”  Therefore, Jammeh can run but he cannot hide.

The lesson for all African leaders is to respect human rights, the rule of law and democratic principles while in power in order to enjoy life in dignity and in respect after leaving office.

* Kwadwo Appiagyei-Atua is a Senior Lecturer at the School of Law, University of Ghana, Legon where he teaches Public International Law and International Human Rights Law. He can be reached at [email protected]

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