Christopher Yaw Myinevi
7 July 2009
opinion
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.
Heated debates
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 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.
Wrongful acts
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.
The killings
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.
Be the first to Write a Comment!
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
