Keynote address by the Attorney-General and Minister of Justice, Republic of Sierra Leone.
Joseph Fitzgerald Kamara, CORSL
On the Occasion of The Gambia’s National Stakeholders’ Conference on Justice and Human Rights 23-25th May 2017 Banjul, The Gambia
Honorable Ministers of Government, Members of Parliament, My Lord Justices, Members of the Diplomatic Corps, Members of the Bar Association, Members of the Fourth Estate, Civil Society Representatives and distinguished Ladies and Gentlemen,
I am truly delighted to be with you today.
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.
Honorable Attorney-General,
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.
Analyzing justice and Human Rights through the prism of International Criminal justice System
Honourable Ministers, distinguished guests, ladies and gentlemen, from the International Criminal Tribunal for Rwanda, to the International Criminal Tribunal for former Yugoslavia, to hybrid courts such as the Special Court for Sierra Leone, Special Panels of the Extraordinary Chambers in the Courts of Cambodia etc., nations have to, based on their specific contexts, decide the form and order of transitional justice to implement. Whatever strategy to be chosen, it is imperative to note that survivors are essential. Justice must ensure children, women, the youths and vulnerable groups enjoy equal access and respect under the law.
Ladies and gentlemen, at the end of our civil war in 2002, we adopted a twin-track transitional justice model- the Truth and Reconciliation Commission and a Special Court for Sierra Leone. The former documented the historical failures that led to the collapse of the state and the atrocities committed during the war.
Similarly, South Africa’s Truth and Reconciliation Commission, evidenced a choice of a restorative justice process which allowed victims and perpetrators to encounter one another in a peaceful manner, openly relate their experiences of the past, and have their concerns validated. Thus, it can be said that the TRC’s decision to use a restorative justice approach enabled it to fulfill the interim government’s goals of building a bridge between the past and the future, establishing the truth about the past in order to prevent the occurrence from human rights violations in the future.
On the other hand, in the case of Sierra Leone vis-a-vis the Special Court, it brought to justice those who bore the greatest responsibility for war crimes, crimes against humanity and violations of International Humanitarian Law. It is imperative to note, that it is not always possible to punish wrongdoers, nor is it necessarily always the best option.
We should fall under no illusion that this is an easy road. In pursuing the objective of ending impunity, as a nation, The Gambia should take ownership of the process and shape the agenda while harnessing international experiences and support. The complexity of the Gambian society and its recent socio-political and economic history cannot be ignored.
Institutional and Governance Reform
It must be emphasised that justice mechanisms are in all effect transient, taking the shape of the moment and vicissitudes of the order of the day. They set the stage for reconciliation and justice, but they are not an end into themselves in creating the structures for peaceful coexistence and good governance.
As President Barack Obama famously stated “Africa does not need strongmen but strong institutions”. To me, strong institutions are produced by strong leadership. Strong leadership need not be dictators, abusers or violators of the fundamental rights of citizenry. Rather, leaders are persons with vision, with ability and conviction to inspire transformative development. Leopold Senghor, Julius Nyerere, Kwame Nkrumah, Thomas Sankara, the lady Wangari Mathia, the Nobel laureate and Nelson Mandela, to name but a few.
The path to a sustainable future of peace, good governance and prosperity lies in institutional and governance reforms. The experience of Sierra Leone is quite instructive on a number of levels.
During the early part of the end of the war, Sierra Leone took significant steps in not only establishing and supporting the operations of key rights and accountability institutions like the Human Right Commission (HRC), National Commission for Democracy (NCD), Office of the Ombudsman, Political Parties Registration Commission (PPRC), National Elections Commission, Anti-corruption Commission (ACC) and Audit Service, it also undertook massive reforms in the security and public sectors such as restructuring the military and the police.
The second generation of reforms have largely focused on strengthening justice institutions such as reforming the justice sector, opening additional courts, improving conditions of service and recruitment of judges and State Counsels, establishment and expansion of legal aid services, and strengthening the Independent Police Complaints Board (IPCB).
In the last few years, we have championed the empowerment of communities through expansion of justice services, deployment of magistrates in all districts and judges in all the regions.
Together, these post-conflict reconstruction agendas are building both a strong civil society and governance institutions to deliver our democratic aspirations and hold the state accountable while reducing the tendencies towards dictatorship.
Furthermore, one should keep in mind that each post-conflict case is different, and that just because one method might work in one transitional society does not mean that it can be applied exactly the same way elsewhere. Lessons could be learnt and experience sharing sought to set the new paradigms for Africa Rising !
Way forward: A Template for Good Governance in Africa
Honorable Minister, distinguished ladies and gentlemen, the crossroads in which The Gambia finds itself is not unique in Africa. Many countries across the region have transitioned from violence to peace and have made remarkable socio-economic and political progress.
Friends and Colleagues, it is my considered opinion, that a safe model to be examined within the peculiar Gambian context, could be seen through the establishment of a Special Panel for Truth and Reconciliation.
Thereafter, the outcome may lead to the formation of a Special Investigator’s Office to probe, analyze and assess the available evidence and produce a Report that the Attorney-General’s Office could use to institute criminal prosecutions under national laws.
On the other hand, where the evidence reaches the threshold to attract international criminal justice, for instance, where there’s cogent and credible evidence to suggest the occurrence of crimes against humanity, then The Gambia could legitimately make reference for international criminal justice intervention. Especially so in the event, where the alleged offences, were widespread and systematic, and were directed against the civilian population of the Gambia.
Furthermore, international criminal justice intervention occurs under circumstances where the National system, either does not have the capacity or resources or unwilling to undertake criminal prosecutions. In that case, the Prosecutor of the International Criminal Court could initiate investigations improprio muto, meaning at her instance.
However, there is no blueprint approach or silver bullet to managing transitions, but one thing is clear, you cannot move forward as a nation and build a strong, cohesive society and good governance without addressing the scourges of the past. In your bid to address the past and its historical legacies, we must not forget to invest in the infrastructure that should prevent that past from overwhelming us YET AGAIN. We must engage in this conversation with a high sense of purpose and sincerity, openness and inclusiveness bearing in mind that a society governed by a public sense of justice is inherently stable, prosperous and healthy.
Honourable Minister and distinguished ladies and gentlemen, Africa is rising once again and The Gambia cannot fail to play its part in this continental transformation.
Friends and colleagues, distinguished Ladies and Gentlemen, it has been a thrill for me to make this journey and to engage in this conversation, and to participate in your debates. I am sure your meetings over the next two days will be rewarding and most fruitful as we chart a forward looking reformist agenda in Human Rights and Justice for the peoples of the Gambia. I remain deeply honored, to have been invited to address such a coterie of distinguished and accomplished personalities.
Distinguished ladies and gentlemen,
Let me close by expressing how deeply touched I was upon sight of a billboard as I entered the environs of the hotel. It read “the people of The Gambia have decided. And now ready to move forward”. As you move forward, may those fragile steps take you towards the direction of justice for all, respect for human rights and protection for the poor, women and children.
Thank you so much for your kind attention.
God bless the peoples of The Gambia and mother Africa.
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