Executions Are 100% unlawful
In a confounding display of reckless and secretive statecraft, even some who still consider themselves officially connected and in the know swore on their lives that prisoner killings did not happen in the Gambia notwithstanding BBC and other reports quoting credible Amnesty International, and Civil Society Associations Gambia (CSAG) sources. No surprise these fellow citizens live in The Gambia! Under circumstances less contentious and disgraceful, and with consequences so far reaching for our public life, a performance of this nature would be hailed a masterclass in information management.
If as contended by those who were left to deal with the fallout – the Cabinet and parliamentary employees of His Excellency Sheikh Professor Alhaji Doctor Yahya A J J Jammeh (the Professor) – the prisoner killings were on all fours with the constitutional framework, the critical retort is why such secrecy in a matter of such national moment.
Assuming the constitutional framework was complied with, who owned the bodies of the executed prisoners? Were the families notified in any way about the impending killings? Were the prisoners killed on Thursday, 23 August, as claimed by Amnesty, and CSAG sources, or on Sunday, 26 August, as reported by the Professor’s government? Were the prisoners killed by hanging, firing squad, lethal injection, or by methods less comprehensible to the lay person in matters of terminal and violent state conduct? Where was the location of the allegedly constitutionally sanctioned killings? What was the actual number of prisoners killed? What was the rationale behind killing nine people on the same night, perhaps at, or about the same time? Why were there no verifiable public reports of observers independent of government witnessing the killings?
Over time, others would no doubt elucidate and educate Gambians and friends of The Gambia on some, perhaps all of the above questions on this rather incomprehensible development in our public life. For present purposes, my concern is limited to the simple inquiry of whether there is a legally implementable death penalty law in The Gambia. In other words, were the killings constitutionally permitted as claimed by the Professor and his Cabinet, by some APRC National Assembly members, and by the hordes of party supporters, and so-called councils’ of elders from around the country.
In my view, there is currently no constitutionally implementable death penalty law in The Gambia, and regardless the actual date of killings, the Professor’s government gravely erred in relying on section 18 of the 1997 Constitution of the Republic of The Gambia (the Constitution) as justification for killing purported death row prisoners. I cannot overemphasise the illegality of the prisoner killings. Let us examine the pertinent law!
The legal framework around the death penalty
Section 18, 1997 Constitution of The Gambia Protection of right to life
(1) No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted
(2) As from the coming into force of the Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
(3) The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.
Section 226, 1997 Constitution of the Gambia Alteration of the Constitution
(2) Subject to subsection (4), a Bill for an Act of the National Assembly under this section shall not be passed by the National Assembly or presented to the President for assent unless-
(a) Before the first reading of the Bill in the National Assembly, the Bill is published in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication, and
(4) A Bill for an Act of the National Assembly altering any of the provisions referred to in subsection (7) shall not be passed by the National Assembly or presented to the President for assent unless-
(a) the Bill is published and introduced in the manner required by paragraph (a) of subsection (2),
(b) The Bill is supported on the second and third readings by the votes of not less than three quarters of all the members of the National Assembly,
(c) the Bill has been referred by the Speaker to the Independent Electoral Commission and the Commission has within six months of such reference, held a referendum on the Bill and
(d) at least fifty percent of the persons entitled to vote in the referendum have taken part in the referendum and the Bill is supported in the referendum by at least seventy five percent of those who voted
(7) Subsection (4) applies to-
(a) this section (b-d)
(e) Chapter IV (which provides for the protection of fundamental rights and freedoms)
(f-l) DEATH PENALTY RESTORATION ACT Cap 11:02, Laws of The Gambia, 2009
[Decree No. 52 of 1995] [Date of commencement: 10th August, 1995]
1. Short title This Act may be cited as the Death Penalty (Restoration) Act
2. Restoration of death penalty provisions in Caps. 10:01, 11:01 and 19:01 The sections contained in-
(a) the Criminal Code
(b) the Criminal Procedure Code, and
(c) The Gambia Armed Forces Act,
Prior to the enactment of the Death Penalty (Abolition) Act 1993, which were amended by that Act are hereby restored in their respective enactments and shall be construed accordingly as if that Act had never been passed. Provided that a person shall not be sentenced to death on a charge of murder or treasonable offence committed between the period of enactment of that Act and the coming into force of this Act.
The Death Penalty (Abolition) Act 1993, is hereby repealed.Analysis Of Law And Facts
From the onset, there is absolute clarity on the fact that section 18, as part of Chapter IV of the Constitution, is an entrenched provision. The fundamental point to note is therefore that in light of the constitutional architecture on entrenchment, the National Assembly has no unilateral capacity to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia”. In simple terms, section 18(3) of the Constitution mandates the National Assembly to initiate a referendum process on “the desirability or otherwise of the total abolition of the death penalty in The Gambia”. The National Assembly can only validly act in collaboration with the electorate. And the referendum, a “yes” or “no” vote on the simple question of whether The Gambia should maintain the death penalty must take place by 16 January 2007 at the very latest.
Albeit partially, I concede there is an argument The Gambia had a valid death penalty law from 10 August 1995 when the AFPRC reinstated it, up to, and including 16 January 2007. That validity, sanctioned by a higher law and encapsulated in 18(1), and 18(2) of the Constitution, lapsed on 16 January 2007. On 17 January 2007, an automatic moratorium on conviction, sentence, and implementation of the death penalty kicked in by virtue of section 18(3) of the Constitution.
In other words, section 18 (1) and (2) ceased to have effect and were placed in abeyance by the express overriding qualifier of 18(3) in so far as the constitutional command of a referendum on the death penalty did not take place. All death sentences not implemented as of 16 January 2007 were constitutionally stayed. And all death sentences imposed since 17 January 2007 were legally invalid. All of the 23-26 August 2012 prisoner killings were therefore unlawful! The supremacy clause at Section 4 of the Constitution overrides the Death Penalty Restoration Act 1995 (see Cap 11:02, Laws of The Gambia, 2009).
Considering the constitutional timelines around a mandatory review of the death penalty law in The Gambia, even 16 January 2007 as an absolute deadline must be construed as somewhat of a charitable interpretation of the law. The outer deadline of ten years assumes the referendum process was in motion in accordance with the stipulated timelines in section 226 (2)(a) of the Constitution regarding publication of a pertinent Bill in at least two issues of the Gazette, the latest publication being not less than three months after the first, and the Bill is introduced into the National Assembly not earlier than ten days after the latest publication. This alone is a clear 100 days before the mandatory “review” deadline of 16 January 2007!
On commencement of the Bill’s journey through the National Assembly, it may take a good two to three months through the third reading and voting on the matter in the legislative chamber. After this constitutionally mandated journey in the National Assembly, the Speaker must refer the Bill to the Independent Electoral Commission which must, within six months of such reference, organise a referendum on the Bill. As the wording on timelines permit some discretion on when certain things happen, e.g., “within six months”, it is reasonable to assume that from the first reading of the death penalty retention or abolition Bill in the National Assembly through the holding of a referendum by the IEC, a solid six to nine months could, at the very least, lapsed. What this means is that a referendum process must have commenced in January 2006 to avoid legal uncertainty over the death penalty issue. Although the commencement of a referendum process in January 2006 would not have invalidated sections 18(1) and (2), it would have suspended the implementation of the death penalty pending the verdicts of the National Assembly and the electorate. Since the mandatory referendum process was not even attempted, a strict application of section 18(3) suggests the death penalty was in abeyance as early as January 2006.
What implications then for individual prisoners killed by the Professor’s government?
Tabara Samba, sentenced to death on 26 September 2007, was neither validly convicted nor sentenced in light of the fact that sections 18(1) and (2) lapsed by virtue of the referendum requirement on the death penalty as stipulated in subsection (3). The same applies to: Dawda Bojang, 30 July 2010; Buba Yarboe, 03 November 2010; and Malang Sonko, 30 January 2012. None of these four people were validly convicted, or sentenced to death. Killing them was unlawful. The Constitution gave no permission! As for Ex Lieutenant Lamin Jarjou, Ex Sergeant alias Ex Lieutenant Alieu Bah, and Ex Sergeant Lamin F Jammeh, they were all validly sentenced to death on 27 October 1998. Ditto Gebe Bah, sentenced to death on 30 January 2004 (I make no pronouncement on the actual trials). For these four, the unlawfulness in killing them is rooted in the fact that Gambia’s overriding death penalty law lapsed on 16 January 2007. In accordance with the supreme law of the land, they were, at worst, entitled to legitimate expectations of life in prison. The Constitution prohibited their killings!
Standing by itself is the case of Lamin B S Darboe. He was sentenced to death during the First Republic, on 03 December 1986. According to the Press Release entitled “Warrant/order for Execution” issued 27 August 2012, by the Ministry of the Interior, Mr. Darboe “appealed against conviction and sentence on 18th day of June 1988 and the said appeal was dismissed”. There is a palpable perversity about the above quoted material from the Ministry of the Interior. It is frightening that our government had the audacity to issue such a cavalier and misleading statement on the utterly unlawful killing of Mr. Darboe.
Even granting that his appeal was dismissed “on 18th day of June 1988”, the legal landscape underwent a complete alteration when the PPP government abolished the death penalty in 1993. Even before the Professor’s government entered the political scene, Mr. Darboe was no longer a death row prisoner. By virtue of The Death Penalty (Abolition) Act 1993, his sentence was commuted to life behind bars, a terminology in need of clarification.
With all his power, the Professor has no authority to retrospectively reinstate Mr. Darboe’s death sentence. Indeed, the Death Penalty (Restoration) Act 1995 expressly prohibited any such move. In clear language, it says: Provided that a person shall not be sentenced to death on a charge of murder or treasonable offence committed between the period of enactment of that Act and the coming into force of this Act. I leave it to others to ferret out the reasons behind Mr. Darboe’s unlawful killing. No question he was unlawfully killed!
As myriad delegations from around the country trooped into the Vice President’s office to profess and renew loyalty to the Professor, exculpate him from allegations of unlawfully killing prisoners, and blaming the Constitution instead, I am reminded of the massive difficulties embedded in our one-man political system. It is an utter farce for uninformed so-called councils’ of elders to pontificate on constitutional clauses of great moment, And especially as some of these high priests and priestesses on the unquestionable legality of the killings are unlettered in the language of the Constitution. I urge Gambians to reject age as an exclusive barometer for deciphering judgment and credibility. If this momentous issue of legality eluded government lawyers – assuming prior consultation – it is hard to see how the unlettered can decipher the esoteric legal architecture of Gambia’s death penalty laws.
As the government anchored its justification for the prisoner killings in constitutional permission, some form of national debate around that alleged legal authorisation must be entertained. To talk about democracy and eschew public conversation on momentous questions of life and death cannot garner credibility from the informed and conscientious.
If only for this, interposing sovereignty cannot in anyway be dispositive of the question of legality. Ditto the contention that other nations also have, and do implement, death sentences. And no amount of mere assertion that the Constitution permitted the August 23-26 killings can legitimise the illegitimate. Sovereignty and company are merely political arguments. I now challenge the Professor and his government to publish its legal advice in light of the formidable and absolute clarity of section 18(3) of the Constitution, a section that operates in a manner akin to a statute of limitations.
An elemental reading of 18(3) ought to have triggered some consultation with the government’s legal advisers. The killings were more complicated than the sovereignty sideshow, and the issues inherent in this farcical transaction are infinitely more significant than the shameful contention our republic is a proud member of a crowded field of state executioners and must therefore not be singled out for widespread global condemnation.
Those who contend that the killings were legal are wrong.
I challenge them to tell us how a nation rights a wrong of such magnitude? How does it remove such stain on its conscience?