Gambia: A Special Court in Search of Funds

Mariam Sankanu is a Gambian investigative journalist with Malagen, The Gambia’s premier media platform specialised in investigative journalism and fact-checking. She had previously worked with African Network against Extrajudicial Killings and Enforced Disappearances, a civil society organization. Mariam is a graduate of the School of Journalism and Digital Media at the University of The Gambia.

December 16, 2024, was a historic moment for the Gambia’s transitional justice. The Economic Community of West African States approved its partnership with the Gambia to set up a Special Tribunal. The hybrid court has the mandate to try crimes committed under the regime of the Gambia’s former president Yahya Jammeh, making it the first time the regional bloc has entered such a partnership with a member state – without providing any funding.

“Agreeing on the contours of the tribunal, writing the statute, and getting it approved by ECOWAS [Economic Community of West African States], was the easy part, and that took three years. The hard part will be funding the tribunal, which will cost tens of millions of dollars, finding the staff, and getting it up and running,” says Reed Brody, an international human rights lawyer.

Whilst there have been questions around the political will to extradite the former Gambian president, Yahya Jammeh, who is currently on a self-imposed exile in Equatorial Guinea and for whom Gambia has not yet issued an arrest warrant, what could be more challenging for the Gambian government is securing the funds to establish the court. Although it has always been considered a challenging task, now it has become even more difficult with the US Agency for International Development (USAID) funding freeze.

In January, during the universal periodic review, the Gambian minister of justice, Dawda Jallow, told the UN Human Rights Office in Geneva that an estimated 60 million dollars is needed for the tribunal over a period of five years. Once 16 percent of the funds is secured, he said, the court will start its operations. “We urge the international community to fund the Special Tribunal and strengthen reparations programs as part of our transitional justice efforts,” he pleaded.

“I’m sure that if the Gambia continues to show the political will, its friends in the international community, who have rightly been impressed with the Gambia’s transitional justice program, especially the TRRC, will be ready to help. But with the US cutting off all foreign aid, it will be particularly challenging now to find the money,” Brody added.

A Special Prosecutor’s Office set up by June ?

On April 22, 2024, the Special accountability mechanism bill was passed by the Gambian national assembly. Under this bill are three institutions for prosecutions of the Jammeh-era crimes: the Special Prosecutor’s Office, the Criminal division of the High Court and the Special Tribunal in partnership with ECOWAS. Whilst the Criminal division of the High Court, which has already been set up, will try domestic crimes, the Special Tribunal will focus on crimes of international nature. In January, the minister of justice said the government plans the Special Prosecutor’s office to be operational by June 2025.

“The Government of the Gambia has a collaborative relationship with the US department of State, the Office of global criminal justice and its former ambassadors-at-large, as well as with the USAID,” said Ida Persson, the special adviser on transitional justice and head of the post-TRRC unit at the Gambian ministry of justice. “Both have been providing technical and financial support since 2021. On the Special Tribunal and the Special Prosecutor’s Office, the Office of the global criminal justice was providing technical assistance towards the establishment and the preliminary operations of the Special Prosecutor’s office, which has now halted due to the new administration freeze,”

The government “should not depend entirely on donor funding”

She added that this will result in delays in the implementation of activities and if the USAID funding freeze should persist, it would also affect the mobilization of additional funding for the Special Prosecutor’s Office and the Special Tribunal. “Other donors that continue to financially support these processes are the UN peacebuilding funds and the European Union, through the implementing partners such as UNDP and OHCHR.”

“Donald Trump’s decision to put a halt to US funding of foreign projects would no doubt affect such initiatives like the creation of the Special Tribunal to try former President Yahya Jammeh, but it definitely should not spell the end of the initiative,” said Demba Ali Jawo, veteran journalist, victim of Jammeh’s regime and former chairman of the Gambia Centre for victims of human rights violations.

“If indeed the government have the commitment and political will to carry on with the transitional justice process, they should not depend entirely on donor funding to implement it,” he added. “For instance, we understand that over a billion dalasis [about 14 million dollars] was realized from the sale of former president Jammeh’s assets, and there is nothing stopping the government from using some of that money to kick-start the process, rather than do nothing and wait for donor funding.”

No financial help from ECOWAS

In July 2024, the ECOWAS parliament voted against its partnership with the Gambia to set up the Special Tribunal. Some of the representatives were strongly against this partnership, one of them being Liberian MP Edwin Snowe, the chair of the committee on political, peace and security. In December 2024, however, that decision no longer carried any weight when the Authority of Heads of States gave this partnership its blessings. But apart from providing technical support, it does not seem like ECOWAS will go any further.

“The way it’s structured, the way the treaty is structured, the Gambian government will fund it, so there is nothing in there that says ECOWAS will fund it. So the role ECOWAS was to play was just to monitor, observe, mediate but the court is fully funded by the government of the Gambia,” Edwin Snowe told Justice Info at his home in Banjul.

70 individuals, including Jammeh, should be prosecuted

It is unclear what the Gambia’s next steps are. The Gambian government has a five-year timeline to implement the TRRC recommendations, which is expected to end in 2027. The National human rights commission is the institution monitoring the government’s implementation of the 263 recommendations the TRRC made in 2021.

“The National Human Rights Commission has reported to the national assembly that 16 of the recommendations made by the TRRC have been fully implemented by the government and 55 have yet to commence. The remaining 192 TRRC recommendations being implemented,” the minister of justice, Jallow, said at the 2024 conference on the status of the implementation of the TRRC recommendations.

As recommended by the TRRC, the Gambia government should prosecute nearly 70 individuals, including Jammeh, who has been on a self-imposed exile since 2017 in Equatorial Guinea, a country that does not have an extradition treaty with The Gambia. He has recently spoken of his return and has been actively participating in the politics of his party.

Two trials have been held in the Gambia in connection to crimes committed under the Jammeh regime. The heads of the National Intelligence Agency (NIA) and Yankuba Touray, who was a former Junta member and local government minister, were tried whilst the TRRC was ongoing.

In the absence of US funding, what next?

One of the Gambia’s key partners is the European Union. According to the EU delegation, they have invested a total of 20 million euros in transitional justice since 2017, including security sector reform. “At this point in time, our focus concerns the support of the Special Tribunal and the expansion of the High Court complex, by funding the two new courtroom facilities for the special criminal division of the High Court complex in Bakau and the construction of the Special Prosecution office. The EU has also deployed experts across key institutions including the judiciary, the ministry of justice, the national assembly and local government bodies to reinforce the work of these institutions,” the delegation said to Justice Info.

On their next steps with regards to the Special Tribunal, the delegation says it is too early to identify the EU’s future engagement. “But we are of course, as part of the donors’ community, holding regular discussions with the government.”

“We certainly will continue with our efforts to mobilize the funds required, which include strategic engagement, both collectively and bilaterally with donors and development partners in and outside the Gambia. We believe if our supporters understand the intricacies of the plan, they’d buy into why it’s not only a critical endeavour to invest in for the Gambia and the sub-region, but for the world,” Persson, from the Gambian ministry of justice, said.

Lack of political will in Banjul

“Certainly, the failure to start the prosecution of the alleged perpetrators for more than eight years since the [current president Adama] Barrow regime’s coming into power could be interpreted by some people as the government’s lack of political will to implement the transitional justice process,” Jawo, veteran journalist and victim of Jammeh’s regime, said. “We have also seen that a good number of the victims have died while waiting for justice, and the longer it takes to implement the process, the less effective it is likely to become. Therefore, to demonstrate their commitment to getting justice for victims of the Jammeh regime, the government should expedite the process.”

By JusticeInfo.net.