Ida Persson, head of the Post-TRRC Unit at the Ministry of Justice, has explained why The Gambia established a Special Accountability Mechanism to prosecute alleged human rights violations uncovered by the Truth, Reconciliation and Reparations Commission (TRRC).
Speaking on Gambia Radio and Television Services, Persson said the country’s conventional criminal justice system was not, on its own, adequately equipped to handle the complex legal and evidentiary challenges associated with cases arising from the TRRC.
Under the normal process, police investigate alleged offences and submit case files to the Directorate of Public Prosecutions at the Ministry of Justice. Cases then proceed through the courts, with the possibility of further appeals. However, Persson said the nature of the violations documented by the TRRC required a more specialised approach.
More than 50 people appeared before the commission and confessed to involvement in human rights abuses, she said. But statements made during a truth-seeking process cannot automatically be treated as sufficient evidence for a criminal conviction.
“The TRRC dealt with information, but criminal courts deal with evidence,” Persson explained.
She said criminal proceedings must comply with strict evidentiary rules and protect the rights of accused persons. A confession made before the TRRC does not remove the prosecution’s obligation to prove its case in court, particularly where the accused later denies the allegations.
Persson noted that some information accepted by the commission, including hearsay and second-hand accounts, may not be admissible in criminal proceedings. Prosecutors must therefore build cases that meet the legal standard required for a conviction.
She rejected comparisons between the TRRC’s work and criminal trials, describing them as “comparing an apple to a table”. The commission was established to uncover the truth about past abuses, while criminal courts must determine whether the available evidence proves an accused person’s guilt.
According to Persson, difficulties encountered in two early post-TRRC prosecutions — the NIA 9 case concerning the killing of opposition activist Solo Sandeng and the case against former junta member Yankuba Touray — helped expose some of the challenges facing prosecutors.
These included meeting evidentiary requirements, handling cases involving multiple defendants, securing witnesses and responding to the expectations of victims and their families. Persson also pointed to the limited opportunities available to victims to participate directly in conventional criminal proceedings.
In response to these concerns, civil society organisations and the Gambia Bar Association brought together Gambian legal experts, including professionals based abroad, to develop a framework suited to the country’s transitional justice needs.
The resulting Special Accountability Mechanism (SAM), which Persson said has been under implementation since April, is designed to pursue accountability while respecting defendants’ legal rights.
The framework consists of three main components: the Special Prosecutor’s Office, the Special Criminal Division of the High Court and a Special Tribunal established through an agreement between The Gambia and the Economic Community of West African States (ECOWAS).
The Special Prosecutor’s Office combines investigative responsibilities normally handled by the police with prosecutorial functions traditionally carried out by the Directorate of Public Prosecutions. This allows the office to investigate alleged crimes and bring cases before the appropriate court.
The Special Criminal Division of the High Court was established by the former chief justice in January 2024 to facilitate the handling of cases arising from the TRRC process.
The third component, the Special Tribunal, is intended to deal with international crimes that fall within its jurisdiction. Persson said this is particularly important because some violations documented by the TRRC — including torture, enforced disappearance and crimes against humanity — were not specifically codified as offences under Gambian law during the period covered by the commission, from 1994 to 2017.
She explained that the principle against retroactive criminal punishment places limits on the use of laws enacted after an alleged offence was committed. As an example, she cited The Gambia’s Torture Act of 2023, saying it could not simply be applied to prosecute an act committed in 1996.
Under the framework, offences already recognised under Gambian law, such as murder and kidnapping, can be prosecuted before the Special Criminal Division of the High Court. International crimes identified through the TRRC process, including potential crimes against humanity, would instead be handled by the Special Tribunal where they fall within its jurisdiction.
Persson’s explanation highlights a central challenge facing The Gambia’s transitional justice process: turning accounts of past abuses into legally sustainable prosecutions while ensuring that both victims and accused persons receive fair treatment under the law.
