The ECOWAS Court of Justice has ordered the Republic of The Gambia to pay a total of 110,000 US dollars to the daughter of a Gambian citizen and critique of former President Yahya Jammeh, who disappeared with another Gambian while on a visit to the Casamance region in neighbouring Senegal about ten years ago.
The Court said in its judgment delivered by Justice Sengu Mohamed Koroma on July 5, 2023 that 100,000 USD of the amount is for the violation of the fundamental rights of Ms Nana-Jo N'dow while the remaining 10,000 USD is reimbursement for monies spent on forensic inquiry and identification of the late father's grave.
Justice Koroma said although the Gambian government discharged its obligation to provide remedy, it was not done within reasonable time in accordance with Article 7 (1) of the African Charter on Human and Peoples' Rights (ACHPR).
The Court also awarded cost in favour of the Applicant, Ms N'dow.
In the initiating suit ECW/CCJ/APP/31/19 filed on July 1, 2019, the Applicant, Ms Nana-Jo N'dow alleged that the Gambian government breached its international obligation by violating the rights of her father, particularly the right to life, right to effective remedy and right to be heard within reasonable time.
Her lawyers - Elise Le Gall, Deji Ajare and Oludayo Fagbemi - told the Court that the applicant's father, the late Saul Ndow with dual citizenship of The Gambia and Ghana, was a critic of the former president Yahya Jammeh who fled The Gambia and went into exile in Ghana following threats to his life.
They added that late Saul Ndow travelled to Senegal to meet with Mr Mahawa Cham, a former Gambian Member of Parliament who was in exile in Senegal, and that both men travelled to Casamance, Senegal, in late April 2013 and were never seen alive again.
They also told the Court that in December 2016, a journalist in exile in Ghana who investigated their disappearance published articles confirming that both missing men were abducted, and that a security guard contracted by late Saul Ndow wrote to the Senegalese authorities and the Ndow family about the abduction.
They also said that Ms Nana-Jo wrote to Amnesty International to assist in the search for her father and the working group on Enforced or Involuntary Disappearances of the Office of the High Commissioner for Human Rights informed her of its correspondence with both the Senegalese and Gambian governments seeking the investigation of the matter.
Furthermore, Mrs Ernestina Aboah-Ndow, spouse of the deceased and Nana-Jo's mother, wrote to The Gambia's Inspector General of Police requesting an investigation and the prosecution of the culprits after four years of no action.
They said that following the insistence of Sarjo Cham, brother of Mahawa Cham, two persons, Bubakarr Jarju and Suwandi Camara, were arrested on February 10, 2017 and charged on three counts that included the murder of Mahawa Cham and Saul Ndow.
But on May 26, 2017, Lamin Jarju of the Ministry of Justice wrote a legal advice to the Director of Public Prosecution in which he alleged that Ndow and Cham collaborated with Jarju and Camara to overthrow the Gambian government. He concluded that there was insufficient evidence to charge Jarju and Camara and recommended instead that an investigation be carried out to determine their involvement in the abduction, their inclusion in the payroll of the Gambian Army and the role of four junglers, an elite squad of the army, that reportedly whisked off both missing men.
Thus, the case against both suspects was dismissed for lack of sufficient evidence but Nana-Jo said the bases for the dismissal were inconsistent and incorrect and Sarjo Cham's statement was not considered in reaching that conclusion.
Consequently, the applicant said she lodged an appeal with the Ministries of Justice and Interior on the grounds of lack of proper investigation and in response, the Ministry of Justice asked the Ndow family to provide information or evidence to assist the investigation and the prosecution of the culprits.
She said that in response, the Ministry was advised to interrogate Pa Ousman Sanneh, a former member of the Jungler squad, who was then in detention and who was named in the newspaper report as responsible for the assassination of Ndow and Cham, charge him with murder, and arrest and prosecute Jarju and Camara for aiding and abetting both murders.
The applicant said that the Ministry of Justice had assured her that it would ensure "justice is done and seen to be done in all cases of abuse and crime under the 22-year rule of former president Jammeh".
According to Nana-Jo, the ministry's response referred to the Truth Reconciliation and Reparations Commission (TRRC) set up by the government with the primary mandate of truth-seeking by establishing facts and identifying root causes of the violations which was not a judicial body to prosecute, or grant amnesty, reparation, etc. She added that TRRC states that informants and witnesses shall not be subjected to civil or criminal proceedings for disclosing human rights violation and if remorseful may be granted amnesty.
The applicant added that she sent a sent a letter on May 31, 2018 to the Ministry of Justice and Vice President of The Gambia regarding initiatives taken by The Gambian Center for Victims of Human Rights Violations in relation to the enforced disappearances and recommendations for next steps. She said that the letter led to the exhumation and identification of the mortal remains of four presumed victims - Solo Sandeng, Lamin Sanneh, Jaja Nyass and Njaga Jagne by Justice Rapid Response assisting the government after which a letter was sent to the widow of late Mr Ndow, Mrs Ernestina Ndow, assuring her that further exhumation will be carried out under the direction of TRRC which would have a full investigative unit.
However, she said that since July 2018, no investigation had been conducted or initiated though there had been confession by people suspected to be connected with the disappearance and alleged murder while the remains of the late Saul Ndow was later located. Despite that, the applicant said the Gambian government failed to act thereby contradicting the provisions of Article 7 of the African Charter on Human and Peoples' Rights and Article 8 of the Universal Declaration of Human and Peoples' Rights (UDHR) that guarantees right to effective remedy.
She therefore urged the Court to hold the government liable for violations of the right to life as guaranteed in Article 3 of UDHR and Article 4 of the African Charter, as well as the right to be tried within reasonable time in line with Article 7 of the ACHPR.
She also asked the Court to order the government to carry out a proper and timely investigation leading to the prosecution of those indicted and the reimbursement of the 10,000 USD she spent on forensic inquiry and identification of her father's grave and another 100,000 USD as compensation for the violations.
For their part, the Gambian government told the Court that the State had investigated, identified the culprit and issued a white paper which should form the basis for the prosecution of those responsible for the abduction and murder.
Mr Kimberg Tebene Tah, lawyer representing the State, also acknowledged that victims were entitled to reparation and that funds had been allocated for them, adding that it would amount to granting double reliefs or compensation should the Court award reparation to the applicant. The Respondent State asked for more time to allow the government to implement the recommendations of the TRRC which he claimed was similar to the reliefs sought by Ms Nana-Jo.
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However, Nana-Jo's lawyers told the Court that the investigations carried out by the TRRC was not effective since it did not lead to the prosecution of anyone. More so, TRRC was not a court and could not handle a criminal case of this nature, adding that 10 years after, there had been no prosecution, nor compensation, while the government had not provided any evidence to demonstrate its readiness to pay reparation to the victims. They urged the Court to grant their reliefs.
In its analysis, the Court held it was competent to hear the matter, despite the claims of the Republic of The Gambia and that the matter was admissible after noting that Ms Nana-Jo had established sufficient relationship as an indirect victim.
On the merit, the Court observed that the State violated the rights to life of Saul Ndow but that by setting up TRRC, the State performed its obligation to provide effective remedy.
While commending the State for the work done so far at TRRC, the Court noted that four years of not prosecuting nor awarding reparation while the case was pending and ten years after the incident, could not be considered as working within reasonable time.
Consequently, it awarded 10,000 USD as monies recoverable and 100,000 USD as damages. It also ordered the Gambian government to ensure all its human rights obligations were fulfilled through the TRRC without delay, and to submit to the Court within six (6) months measures taken to implement this judgment.
