Let me thank you, Honourable Attorney-General for the invitation and honour accorded me to deliver the keynote address on such an august occasion.
I bring you fraternal greetings from His Excellency Dr. Ernest Bai Korma and the people of Sierra Leone. No doubt, the special relationship between our two countries is steeped in a complex historical intersection of our common ethno-cultural ancestry, colonialism, and religious commonalities. These experiences have come to shape the collective memory of people that makes our two countries maintain a special bond. We have stood shoulder to shoulder in terms of peace and war. Of course, the distinct Gambian spirit of hospitality, and patience is etched in the memory of our people. We are truly blessed by an enduring African spirit of friendship.
I recall when you paid a courtesy call on me in Freetown with your team, I promised that I will return the favour. That is why, despite my busy schedule domestically and internationally, I couldn’t turn down your invitation. It is always good to be back in the Gambia, a land of fond memories, friends, college mates and classmates at the Fourah Bay College, University of Sierra Leone, including the late Chief Justice Abdul Karim Savage, former Attorney-General, Mustapha Marong, Janet Sallah, Veronique and Ina Wright, Bintou Jagne, Ida Charm, Mai Fatty, Fatou Mbenga, and of course my close friend Bola Carroll, to name but a few. So, the Gambia is a second home.
Distinguished Ladies and Gentlemen, let me seize this opportunity to congratulate His Excellency the President Adam Barrow upon his election, and the Government and People of the Gambia for a successful democratic transition. We applaud your achievements and the determination of the Government to navigate through the woods and seek a new path towards good governance and democracy.
Honourable Ministers, distinguished guests, ladies and gentlemen, make no mistake, if our sister countries and indeed all of Africa are to prosper and its citizens live in dignity, then the issues of Justice and Human Rights have to play a center role in our National Development agendas. Africa’s human rights trajectory has been historically characterised by the tragedy of genocide, war and political instability, which are also major reasons for the massive exodus of African youth through the Mediterranean to Europe, leading to loss of lives at sea and depletion in our work force.
The Justice – Human Rights Nexus
On the concept of justice and human rights, which is the theme of this Keynote speech, Africa stands in the center of jurisprudential debate. On the one hand, what model of justice best suits our varied culture and complex societies? On the other hand, to what extent can our Nation States afford the breadth of human rights vis-a-vis maintain a strong and effective government capable to deliver on its mandate?
In countries that have witnessed violent conflict and gross human rights violations, the conundrum becomes wide and deep. It then becomes imperative and critical that the past be dealt with for a society to move forward towards a unified and harmonious future and avoid a relapse into conflict or the resurgence of gross violations of human rights or even the rise of modern day dictatorships.
Too often, it is said, the first casualty in the march towards tyranny and dictatorship is the death of justice. Across the continent, the experiences of the early post-colonial period illustrated a pattern in which the core attributes in the administration of justice were severely curtailed. Where judges were expected to be impartial and independent, political imperatives in the past ensured they were compromised, through often dubious tactics of resource starvation, intimidation, victimizations, assassination and forced exiled. Coupled with systematic press censorship through draconian and repressive laws often targeted at dissent from civil society and political opponents. The Judiciary and the legal profession, which too often was the sacred bastion of professional independence were left to crumble. In such a situation, we realized that what is supposed to be the rule of law became the rule for the few.
My dear African brothers and sisters, there is nothing about the African that does not coexists with freedom and justice. Our people do not prefer injustice nor a state where there is a lack of respect for human rights and the rule of law. What you have demonstrated in the last few months and across Africa is a testament to this fact.
The wind of change is blowing in Africa. A new breed of democratic leaders, civil society groups and freedom lovers are emerging. From Ghana to Nigeria, La Cote d’Ivoire to Sierra Leone, the message of our people is clear; we want accountable leadership that has the highest standards of respect for the rule of law, justice and human rights.
But, my fellow Africans, make no mistake, this aspiration has to be backed by a constant dialogue, interaction and determination as you are demonstrating here today in this national stakeholders’ conference. We must begin this dialogue not in the usual prescriptiveness about how we should strengthen democratic processes and preach those platitudes of tolerance and unity. But we must begin this conversation by looking at how we put the building blocks in place to prevent the tendencies of dictatorship and tyranny from emerging. We must also begin this dialogue by ensuring that we put an end to the trend of impunity that has made it easier to erode democratic rights and freedoms and allow injustice to thrive.
Transitional Justice Mechanism
Honourable Minister, distinguished guests, ladies and gentlemen, there cannot be a better opportunity to discuss the need for transitional justice mechanism. We are acutely aware of the horrors of the past but equally so in a closely intertwined and complex social infrastructure of the Gambia, there is the need to tread cautiously in the search for justice. The very objective of transitional justice policy is to end the culture of impunity and establish the rule of law in the context of democratic governance.
How then can we fuse the need for justice and reconciliation to bridge the growing impunity gap? Reconciliation is “built on mechanisms that engage the sides of a conflict with each other as humans-in-relationship.” Reconciliation represents a place, a “point of encounter” that promotes “open expression of the painful past, on the one hand, and the search for the articulation of a long-term, interdependent future, on the other hand,” a place where concerns about the past are validated and let go “in favor of renewed relationship”. Reconciliation recognizes the need to redress the wrongs that were done and at the same time promotes the idea of a “common, connected future”.
Justice, more so, in a transitional sense, encompasses procedures such as trials, truth commissions, and reparations programs. Transitional justice infers that unveiling the “details of the past may provide both a primer on what conditions permitted the violations of the rule of law in the past,” as well as deter “would-be human rights abusers of the future,,” and “help develop the institutional basis and the cultural norms to support the rule of law.”
Two fundamental approaches to this task of addressing the past can be distinguished: retributive justice and restorative justice.
Retributive justice infers that perpetrators of crimes should be brought before criminal trials and, punished once adjudged guilty. Retributive justice advances “the value of legality or the rule of law, ‘producing closure’ on the cycle of vengeance between groups,” allowing “for disclosure of what actually happened,” giving “victims an opportunity to tell their stories, confront those who harmed them, and begin the process of healing,” as well as “deterring those who might be inclined to commit such human rights violations in the future”.
Restorative Justice, on the other hand, is often defined in contrast to retributive justice. Instead of punishing perpetrators by means such as fines, penalties or confinement, restorative justice seeks to reintegrate them into society. It recognizes that in order to heal, people need to be able to tell their stories and hear the stories of others. By using the tools of mediation and dialogue, it generates “space for expressions of approbation, remorse, and pardon, and aspires to address the underlying causes of conflict,” as well as to help prevent future abuses.
The aim of restorative justice is not to establish guilt and punish perpetrators of crimes, but to “identify obligations” as well as to meet the needs of everyone involved and promote healing. Furthermore, rather than viewing the process of justice as a dispute between offenders and state law – which in most cases leads to a win-lose outcome – the process of restorative justice involves all stakeholders in a conflict – including the larger community – in identifying obligations and solutions, thus promoting dialogue and mutual agreement and contributing instead to a win-win outcome.
In juxtaposing restorative justice against retributive justice, the former deals with reconciliation while the later deals with punishment.
A question that raises its head to an enquiring mind is whether or not criminal trials can have a deterring effect? That will in no small measure depend on the practical ability to bring perpetrators to justice and then convict them based upon credible testimony. The validity of the successes of criminal trials as deterrence is found upon the premise of the number of perpetrators tried, the level of command of the perpetrators and acceptability of the outcome by the victim population.
Against the argument that trials through criminal procedure offer the possibility of an acceptable and credible impartial account of past events, one may venture to opine that legal objectivity and the aim of a criminal process to determine guilt rather than truth leads war crimes tribunals and prosecutors to “exclude or minimize” subjective “narratives of victims, perpetrators, and others.” Moreover the “tensions of the transitional context, and the divisions and uncertainties that influence the enforcement of international law” make deterrence implausible.