By Haddy Touray
The Gambia established a Special Accountability Mechanism (SAM) to prosecute cases arising from the Truth, Reconciliation and Reparations Commission (TRRC) because the conventional criminal justice system was not considered sufficiently equipped to address the complex legal and evidentiary issues involved, according to Ida Persson, head of the Post-TRRC Unit at the Ministry of Justice.
Speaking on Gambia Radio and Television Services, Persson said the TRRC and criminal courts operate under fundamentally different standards, with the commission focused on truth-seeking while courts must determine criminal liability based on admissible evidence.
“The TRRC dealt with information, but criminal courts deal with evidence,” she said.
Persson explained that The Gambia’s common-law system placed strong emphasis on protecting the rights of defendants, particularly where an accused person faced the loss of liberty or life.
Although The Gambia maintains a moratorium on executions, the death penalty remains part of the law.
She said a person who admitted wrongdoing before the TRRC could deny the allegations during a criminal trial, requiring prosecutors to prove the case using evidence that meets the applicable legal standards.
Some testimony received by the TRRC, including hearsay and second-hand accounts, may not be admissible in criminal proceedings, she added.
Persson described attempts to equate the TRRC process with criminal prosecution as “comparing an apple to a table”, saying the two processes serve different purposes and operate under different legal standards.
Under the conventional system, a criminal prosecution would normally begin with a police investigation, followed by the submission of a case file to the Directorate of Public Prosecutions (DPP) at the Ministry of Justice. A case could then proceed to the High Court, with the possibility of an appeal to the Supreme Court.
Persson said the government concluded that this process alone was not adequate to address the scale and complexity of cases emerging from the TRRC.
More than 50 people appeared before the commission and confessed to involvement in human rights violations, she said, but such admissions cannot automatically be relied upon to secure criminal convictions.
She said some of the challenges became apparent in two early post-TRRC prosecutions — the NIA 9 case, involving the killing of opposition activist Solo Sandeng, and the prosecution of former junta member Yankuba Touray.
According to Persson, the cases highlighted difficulties in meeting evidentiary standards, managing proceedings involving multiple defendants, securing witnesses and addressing the expectations of victims and their families.
She also noted that the conventional criminal justice system provided limited opportunities for victims to participate directly in proceedings.
To address these challenges, civil society organisations and the Gambia Bar Association brought together Gambian legal experts at home and abroad to help develop a prosecutorial framework suited to the country’s transitional justice process.
The objective, Persson said, was to create a mechanism capable of protecting defendants’ rights while delivering meaningful justice to victims and the wider public.
The resulting Special Accountability Mechanism has been under implementation since April, she said.
Three-Part Accountability Mechanism
Persson said SAM comprises three main components.
The first is the Special Prosecutor’s Office, which combines investigative functions normally carried out by the police with prosecutorial powers traditionally exercised by the DPP.
The arrangement allows the office to investigate alleged crimes and initiate prosecutions.
The second component is the Special Criminal Division of the High Court, established by the former Chief Justice in January 2024 to expedite cases arising from the TRRC process.
The third is the Special Tribunal, established under an agreement between the Gambian government and the Economic Community of West African States (ECOWAS).
Persson said the tribunal is particularly important because several international crimes documented by the TRRC, including torture, enforced disappearance and crimes against humanity, were not codified as offences under Gambian law during the period covered by the commission, from 1994 to 2017.
She said criminal laws generally cannot be applied retroactively, meaning legislation enacted after an alleged offence cannot simply be used to prosecute earlier conduct.
She cited The Gambia’s Torture Act, enacted in 2023, saying it could not be used to prosecute an act of torture allegedly committed in 1996.
Under the accountability framework, offences already recognised under Gambian law, including murder and kidnapping, can be prosecuted before the Special Criminal Division of the High Court.
International crimes identified through the TRRC process, including alleged crimes against humanity, would instead fall under the jurisdiction of the internationalised Special Tribunal.
Forensic Capacity Challenge
Persson also said The Gambia lacks the forensic expertise and scientific equipment required to locate and identify victims of enforced disappearance.
She said the shortage of forensic capacity remained a significant obstacle in resolving cases involving people who disappeared during the country’s period of authoritarian rule and whose families continued to seek information about their fate.
The TRRC was mandated to investigate enforced disappearances and establish the whereabouts of people who went missing. However, Persson said the commission was unable to resolve all such cases.
“So it’s a residual aspect of their mandate that they couldn’t do,” she said. “Their investigations didn’t lead to the unearthing of that information.”
The TRRC subsequently recommended that the government assume responsibility for locating missing persons and prosecuting those found responsible. The government accepted the recommendation in its white paper responding to the commission’s findings.
Persson said investigations and prosecutions relating to enforced disappearances would now fall under the Special Prosecutor’s Office as part of SAM.
She said such investigations were particularly complex and required specialised investigative techniques, forensic expertise and equipment that are currently limited in The Gambia.
Developing the necessary capacity, she added, would require significant resources and international cooperation.
To address the shortfall, Persson said the government was pursuing partnerships with the Alliance of Victim-Led Organizations, particularly the African Network Against Extrajudicial Killings and Enforced Disappearances.
She said the network had partnerships with organisations in Argentina and Guatemala with experience in forensic investigations.
Persson also said the United States government had approved a $930,000 project through the United Nations Office on Drugs and Crime, with part of the funding expected to support efforts to strengthen The Gambia’s forensic capabilities.
“We are looking at how to build partnerships so that forensic capacity can be increased — so DNA testing and this equipment that we need to be able to locate mass graves and the specialised way of exhuming them,” she said.
Support for Families of Missing Persons
Beyond criminal investigations and prosecutions, Persson said the government had established a Task Force on Enforced Disappearance to address administrative and psychosocial challenges facing families of missing persons.
Among its responsibilities is helping families obtain death certificates for people who have been missing for extended periods.
Persson said the absence of such documentation had created legal and administrative difficulties for relatives, including difficulties accessing estates and resolving other family matters.
The task force includes representatives of the Alliance of Victim-Led Organizations and government institutions, including the ministries responsible for information and foreign affairs.