Reed Brody, the American human rights lawyer famous for hunting dictators and bringing them to justice, has said that former Gambian dictator Yahya Jammeh has no valid legal basis for a safe return to the country.
Speaking in a Standard exclusive few days ago, Brody said any supposed mechanism – such as a past exile agreement or informal understandings – does not create standing immunity or a guaranteed safe passage for Jammeh to re-enter Gambian jurisdiction, and that due process and established judicial norms must govern any return with accountability for past crimes.
“Yahya Jammeh is not above the law. There is no legal or diplomatic basis for his claim that Ecowas guaranteed his safe return. The 2017 Joint Declaration on the Political Situation in The Gambia — which was unsigned and rejected by the incoming Gambian government — contains no assurance against prosecution, nor could it. International law is clear: there can be no amnesty or immunity for grave crimes such as murder, torture, or sexual violence,” Reedy said.
According to the respected international lawyer, the unsigned Joint Declaration on the Political Situation in The Gambia, speaks of “the dignity, respect, security and rights of HE former President Jammeh, as a citizen, a party leader and a former Head of State as provided for and guaranteed by the 1997 Gambian Constitution and other Laws of The Gambia.”
“The agreement contains no assurance against prosecution, nor could it, since established international law prohibits any amnesties or immunities for grave international crimes. Any immunity provisions which the ex-president seeks to read into the Gambian constitution could not extend to these international crimes.”
He added that witnesses before the TRRC with firsthand knowledge implicated him in murder, torture, rape, and other terrible crimes.
“The TRRC’s final report found him responsible for crimes against humanity and recommended his prosecution.”
Reed further noted that Gambians and the international community now expect the government to deliver on those recommendations — to ensure that justice is finally done for victims who have already waited far too long.
Under the current Constitution of The Gambia (1996, as amended), the legislature must act before charges can be brought against Jammeh. Article 69 provides that ”A criminal court shall only have jurisdiction to entertain proceedings against a person who has held the office of President in respect of acts or omissions alleged to have been perpetrated by him or her while holding office as President if the National Assembly has resolved on a motion supported by not less than two-thirds of all the members that such proceedings are justified in the public interest.”
The Gambian constitution provides a procedural safeguard before prosecuting a former president, not an absolute immunity. It was designed to prevent politically motivated prosecutions, not to shield former presidents from accountability for grave crimes. The government should therefore immediately request that the National Assembly authorise Jammeh’s prosecution so that it can bring charges against him if he returns.”
“If Yahya Jammeh sets foot in The Gambia before the Special Tribunal with Ecowas is up and running, the government should bring charges against him before the newly established Criminal Division of the High Court. That court was specifically created to handle Jammeh-era crimes under Gambian law.”
Background
In 2018, the government noted that ex-president Jammeh’s record of “state-orchestrated disappearances, kidnappings, murders and incommunicado detentions, routine torture and incarcerations of perceived political enemies, journalists and members of the armed and security forces” was “being cased for potential criminal prosecution.”
In January 2020, former minister of justice Abubacarr Tambadou, referring to Jammeh’s bid to return to the Gambia, said: “Make no mistake about it, barring any findings or recommendations of the TRRC to the contrary, if former President Yahya Jammeh, ever comes back to this country, he will face immediate arrest and charges of the most serious kind, and no amount of irresponsible idle talk or political brinkmanship will prevent this from happening. He will be subjected to an accountability process like any ordinary accused person in this country.”
