The illegality and immorality of amnesty for Sana Sabally

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The illegality and immorality of amnesty for Sana Sabally
The illegality and immorality of amnesty for Sana Sabally

Africa-Press – Gambia. The uproar that emerged in the wake of TRRC’s purported recommendation for Sana Sabally has raised many perspectives which divided the Gambian public into two main camps. One camp completely disagrees with the TRRC on the basis that Sabally killed human beings without putting them through due process. The other camp held the view that because Sabally himself became such a sorry victim of abuse therefore deserves amnesty because he has suffered enough even though he was also a perpetrator. I belong to the first camp.

Sabally mainly appeared in two volumes of the TRRC, that is, Volume 2 dealing with the theme ‘Soldiers with a difference – APFRC’, and Volume 3 dealing with the November 11 Coup Attempt. In its Final Report, TRRC concludes under Volume 1 that,

“In terms of the mass arrests of ex-Ministers and political opponents, the Commission recommends the prosecution of the AFPRC junta members, namely Yahya Jammeh, Sana B. Sabally, Edward Singhatey and Yankuba Touray for ordering the unlawful arrests, detention and torture of Omar A. Jallow, M. C. Cham and the others held at Fajara Barracks.” Under Volume 3 recommendations, the TRRC emphatically concluded that,

“The AFPRC Junta bears the greatest responsibility for November 11, 1994. They are individually and collectively responsible for the torture, assaults, beatings and extra-judicial killings of the 11 GNA officers and the torture, beatings, arbitrary and unlawful detention of the five private soldiers. The Junta include the following then Captains: Yahya Jammeh, Sana B. Sabally, Edward Singhatey, Sadibou Hydara and Yankuba Touray.”

Therefore, all the five members of the AFPRC Junta bear the greatest responsibility for the arbitrary arrest, detention and torture of dozens of victims and subsequent summary executions of 11 soldiers. These crimes constitute the highest violation of human rights and human dignity as established by international law.

The whole idea of international human rights law and international law is to protect human life and dignity. The foundation of international human rights law is the Universal Declaration of Human Rights (UDHR) adopted in 1948 which establishes that basic rights and fundamental freedoms are inherent, inalienable and equally applicable to all human beings as set out in its Article 1. Article 2 went further to recognize that all human beings are entitled to these rights and freedoms without distinction or discrimination. Specifically, Article 3 guarantees the right to life, liberty and security of a person as sacrosanct.

As the UDHR is not a legally binding treaty, it gave birth to the International Covenant on Civil and Political Rights (ICCPR) which is legally binding and went further to protect the rights guaranteed in the UDHR. International human rights law is about the obligation of states, i.e., States have an obligation to respect, protect and fulfill human rights. The Gambia as a state ratified the ICCPR in 1979 hence by 1994, the Gambia Government was under obligation to respect, protect and fulfill human rights. On November 11, 1995 the Gambian State was headed by Yahya Jammeh and Sana Sabally.

The most basic of human rights is the right to life without which no other right is meaningful anymore. Hence the need to protect human life has been primarily and strongly protected by international human rights law. In fact, the ICCPR stated in Article 4.2 that no amount or kind of situation in any country should warrant the taking of life without due process.

The right to life as well as the right not to be tortured, or forced to disappear, or subjected to slavery or sexual violence among others have together come to constitute what are called non-derogable rights for which even under a state of war or any emergency cannot be violated. These crimes have also come to fall within the context of crimes against humanity when meted out to a civilian population systematically. In the broader context of international crimes, there is no exemption for a state from protecting life nor to violate life under any circumstance given the second optional protocol of the ICCPR.

Therefore, in understanding the issue of Sana Sabally, it is necessary to remind ourselves that by 23 July 1994, Sanna Sabally was part of the State as the second highest person in office armed with both legal and political authority to make decisions and take actions. From that moment, Sabally was under obligation to always protect human rights including the right to life.

Even when his junta abrogated most of the 1970 Constitution, the 1994 coup did not suspend the human rights elements of that constitution. Article 13 of the 1970 Constitution guaranteed the right to life, liberty and security of the person, while Article 14 went further to state that no one should be deprived of his or her life except in the execution of a sentence of the court. Therefore, by law, AFPRC Vice Chairman Sana Sabally was under obligation to protect human rights. Nothing under the sun excuses him of that obligation. Therefore, what authority and powers does Sanna Sabally and his AFPRC Junta members have to kill only for him to enjoy amnesty for these crimes today?

From the testimonies of Sanna himself as well as Edward Singhatey and their orderlies, it was obvious that the AFPRC had physically overpowered and arrested all the victims of November 11 already. They had not only the choice but also the duty to send them to court in fulfilment of their human rights obligation under both Gambian and international law. Rather, Sana and his accomplices decided to torture and kill in total disregard of the law because they felt they can flout their powers without accountability. How can any civilized society entertain individuals, especially those in authority to abuse their powers by harming fellow human beings to the point of taking their lives?

This is what the TRRC stated in its report in Volume 2, “The captured soldiers were later taken to Brikama Nyambai forest where on arrival the Junta members, together with Capt. Peter Singhatey, CDS Baboucarr Jatta and their orderlies and security guards, got the prisoners to kneel down and Capt. Sana Sabally and Capt. Edward Singhatey ordered that they be executed.”

Sana Sabally was indeed not an ignorant soldier because he knew about the Geneva Conventions so much so that this is what the TRRC reported about his testimony highlighting his utter contempt for human rights and dignity and the law. This shows that Sanna had carefully calculated his actions which were to kill in total disregard of laws of war.

“Further, during the testimony of Sana Sabally, he discredited the Geneva Convention as a “dead letter law” that nobody adheres to during conflict. Impliedly, Sana Sabally, being an officer, was aware of the existence of the Geneva Conventions, even if he completely disregards its applicability in conflict.”

Granting amnesty to Sana Sabally therefore is to allow State agents to renege on their lawful authority hence encourage impunity. It will defeat the whole purpose of the TRRC and its Never Again agenda. Individuals cannot commit crimes, especially crimes of the highest order such as extrajudicial killings yet enjoy amnesty because of some rationalized emotional narrative. Yes, Sana Sabally suffered hugely, and sympathies are in place for his suffering. His rights and dignity were violated for which there must be accountability.

His torturous sufferings are however not a payment for his own crimes. After all, Sana Sabally still has his life with him. But Basirou Barrow, Fafa Nyang and Dot Faal and their fallen colleagues do not have their lives simply because Sana Sabally and AFPRC Junta members, in abuse of their political power, took their lives! This is a political and moral issue!

The Gambia calls its truth commission a ‘truth, reparation and reconciliation’ commission. Be that as it may, it must be noted that truth commissions are central and fundamental mechanisms in a transitional justice at the heart of which are truth telling and accountability. Transitional justice arises in a society that underwent armed conflict or autocratic rule which are characterized by gross abuses of human rights and disregard of the rule of law among other excesses. Hence a lot of the analysis I have come across that are harping too much on reparation and reconciliation are indeed underplaying the value of a truth commission thereby derailing its objectives. Amnesty for Sana does not serve the purpose of reconciliation as much as his prosecution.

Prosecution of perpetrators are as valid as reparations for victims and reconciliation of all in a transitional justice process. To downplay prosecutions in favor of amnesty, reparations and reconciliation is not only a gross misconception about transitional justice and truth commissions but it is also a dangerous path that will come to haunt the Gambia someday.

What benefit have the TRRC, and the Gambia Government identified that amnesty for Sanna will bring for the country as opposed to prosecution? Has that cost-benefit analysis been done? Have victims been consulted to determine if they are willing to grant amnesty to Sanna or not? Or is it that the TRRC merely took it upon itself that because of Sana’s cooperation and truth telling therefore deserves some compensation? Whose interest should be considered first and foremost in this matter – Sana or the Victims or the greater good of the Gambia?

Research has shown that the lack of proper and adequate justice in the forms of prosecution and reparations in a transitional justice process has the tendency to create a recurrence of conflict or authoritarian rule in the future. Therefore, those who are justifying amnesty for Sana Sabally are looking at this issue from a rather emotional point of view and not from a purely transitional justice, hence legal and political points of view.

Granting Sana Sabally amnesty is an insult to survivors and the surviving families of their victims. Therefore morally, it is repugnant to grant amnesty to Sabally. Whatever pain Sana endured it cannot and must not be viewed as leveling out the gravity of his own crimes. The fact that Sanna sat before the TRRC and supposedly gave a true account of his actions is not necessarily a favor thus deserving compensation. Sanna’s position as a state agent at the highest policy and strategy level must be hugely considered in this matter. Has that been done?

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