Christopher Yaw Myinevi
7 July 2009
(Page 2 of 2)
One of the admissibility requirements which will be a huge challenge to a person complaining about the Gambian killings is the requirement that the complaint must not be a matter which is being "examined under another procedure of international investigation or settlement" or one that has "been settled by [the] states involved ".In this regard the report of the UN/ECOWAS Fact Finding Mission coupled with the MOU signed by President Mills and Yahaya Jammeh are likely to operate as legal barriers to individuals who may want to further take up the matter.
The likely defense for the Gambian government will be that the matter has been settled between the two states following an international investigation conducted by a joint team from the UN and ECOWAS and therefore the complaint should be declared inadmissible. Looking at the matter from this angle, it would appear that the issues concerning the Gambian killings have become a closed book following the acceptance of the fact finding report and the signing of the MOU by the Ghana government.
The only way by which a complainant before the African Commission or the Human Rights Committee could overcome the above hurdle is to possibly argue that the report of the fact finders and the MOU signed are illegal and void under international law. Indeed under the Vienna Convention on the Law of Treaties, 1969(i.e. the body of international rules which regulate agreements between states) an international transaction such as the Ghana-Gambia MOU could be held to illegal and void.
But before such a conclusion could be reached, it must be demonstrated that the said transaction was either procured by fraud, coercion and use of force or that the transaction violates a principle of jus cogens. Jus cogens is simply a principle of international law recognised as being above all other principles of international law and to which all other rules of international law must conform. Jus cogens principles some of which are the prohibition of slavery, the rules against piracy, genocide and aggression are absolute legal obligations; it is illegal for any state to derogate from them. Therefore in this case if it can be demonstrated that the conclusions of the UN/ECOWAS fact finders and the MOU are violative of an international law principle of jus cogens then automatically the way would have been paved for individuals who wish to resort to international forums for redress.
But as it stands now the conclusions of the fact finders and the MOU will continue to be huge hurdles for such individual complainants. This is because international legal opinion is still not settled on whether or not international human rights law including the provisions of the Universal Declaration of Human Rights and the African Charter which the Gambia has wantonly violated has attained the status of jus cogens.
That being the case it appears that the so called settlement agreed between Ghana and Gambia and which is evidenced by the signing of the MOU on July 1, 2009 has technically shut the doors to the African Commission and the Human Rights Committee in the face of the families of the victims and concerned individuals who may have wished to pursue this matter in an international forum. It is sad how the Gambia and Jammeh's regime have been left off the hook in this manner in spite of the savagery which occurred in that country in 2005.But maybe our consolation should be that God is watching from a distance; slow He may be, but He will surely execute justice for souls of those our brothers who perished. "Vengeance is mine and I will repay"-that's what He says.
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