The high price of im­mu­nity

The Star Early Edition - - OPINION&ANALYSIS -

More car­toons on­line at An­gela Mudukuti is an in­ter­na­tional crim­i­nal jus­tice lawyer

IN DE­CEM­BER 2016 we cel­e­brated the prospect of a peace­ful demo­cratic tran­si­tion in Gam­bia as Pres­i­dent Yahya Jam­meh con­ceded de­feat in the elec­tions af­ter over two decades in power.

One week later, he changed his tune and re­fused to ac­cept the elec­tion re­sults. He re­mains de­fi­ant. Re­gional and in­ter­na­tional lead­ers are try­ing to per­suade Jam­meh to leave of­fice peace­fully, and th­ese ef­forts in­clude prom­ises of asy­lum and pro­tec­tion from pros­e­cu­tion for al­leged hu­man rights vi­o­la­tions.

Should Jam­meh ac­cept of­fers of im­mu­nity and po­lit­i­cal asy­lum, the per­pet­u­a­tion of im­punity will be the re­sult. A high price to pay for a peace­ful tran­si­tion or a rea­son­able trade-off ?

Jam­meh lost the elec­tion to Pres­i­dent-elect Adama Bar­row on De­cem­ber 1,2016, where only 39.6 per­cent voted for Jam­meh, 43.3 per­cent for Bar­row and 17.1 per­cent for Mama Kan­deh.

Jam­meh al­leges that the elec­tion re­sults are in­ac­cu­rate de­spite the In­de­pen­dent Elec­toral Com­mis­sion con­firm­ing the le­git­i­macy of the re­sults. Jam­meh has taken the mat­ter to court. Un­for­tu­nately and per­haps con­ve­niently for Jam­meh, due to a short­age of judges, the Gam­bian courts can only hear the case in May.

Given that Bar­row is meant to as­sume of­fice on Jan­uary, the AU and the Eco­nomic Com­mu­nity of West­ern African States (Ecowas) have been engaged in diplo­matic ef­forts to en­cour­age Jam­meh to step down.

The AU has in­di­cated that as of Jan­uary 19 they will no longer recog­nise Jam­meh’s author­ity and have warned of “se­ri­ous con­se­quences” should Jam­meh refuse to leave of­fice peace­fully.

Ecowas, though also pur­su­ing peace­ful me­di­a­tion and seek­ing a peace­ful tran­si­tion, have been ru­moured to be con­sid­er­ing the mo­bil­i­sa­tion of mil­i­tary forces.

At present Jam­meh seems un­con­vinced by all re­gional me­di­a­tion ef­forts and the golden ticket ap­pears to be the of­fer of po­lit­i­cal asy­lum in Nige­ria.

The risk of pros­e­cu­tion is be­lieved to be one of the rea­sons that Jam­meh re­fuses to leave of­fice, and this way Jam­meh could be shielded from the long arm of the law.

Nige­ria’s House of Rep­re­sen­ta­tives ap­proved a mo­tion to grant Jam­meh asy­lum if he steps down. Though it is not bind­ing on the Nige­rian gov­ern­ment, it seems to pro­vide room for the Nige­rian Pres­i­dent to ex­tend the of­fer.

How­ever, we all know how that turned out for Liberia’s war­lord, Charles Tay­lor. Tay­lor, af­ter re­ceiv­ing prom­ises of po­lit­i­cal asy­lum, moved to Nige­ria. The Nige­rian gov­ern­ment sub­se­quently saw fit to fa­cil­i­tate Tay­lor’s trans­fer to Liberia and then to the Spe­cial Court for Sierra Leone where he was tried and found guilty.

Jam­meh’s rule has been char­ac­terised by grave vi­o­la­tions of hu­man rights and some of his al­leged crimes in­clude mass mur­der, tor­ture, sum­mary ex­e­cu­tions and en­forced dis­ap­pear­ances, among many other al­leged crimes.

Should Nige­ria pro­vide asy­lum, Jam­meh could agree to trans­fer power peace­fully, which could usher in a new era of democ­racy in Gam­bia.

While this may seem like a fair trade-off for many Gam­bians seek­ing to pre­vent a war, what about the Gam­bians who have suf­fered grave in­jus­tices at the hands of Jam­meh?

What about those who have been wait­ing for Jam­meh to have his day in court?

Should Jam­meh be granted po­lit­i­cal asy­lum, this could fos­ter a cul­ture of im­punity and in­spire other lead­ers to fol­low the same trend – refuse to step down af­ter los­ing cred­i­ble elec­tions and bargain with the threat of war and chaos in ex­change for your im­mu­nity.

The re­al­ity is, im­punity con­tin­ues to dam­age the rule of law and jus­tice in Africa.

It con­tin­ues to en­cour­age would-be per­pe­tra­tors to do as they wish, know­ing they can later evade jus­tice.

While threats of war should be given due re­gard, the long-term ef­fects of lead­ers vi­o­lat­ing hu­man rights only to re­tire en­joy­ing the peace and seren­ity of their mil­lion dol­lar beach-side vil­las must also be given due re­gard.

Im­punity con­tin­ues to crip­ple demo­cratic in­sti­tu­tions, com­pro­mise gover­nance frame­works, and un­der­mine hu­man rights.

Should this all come to pass, Jam­meh would join an al­ready long list of lead­ers who have found a safe haven in neigh­bour­ing African coun­tries.

Uganda’s Idi Amin was wel­comed in Libya at first and then later spent his last days pro­tected in Saudi Ara­bia. He is al­legedly re­spon­si­ble for the deaths of over 100 000 peo­ple.

The Demo­cratic Repub­lic of Congo’s Mobutu Sese Seko fled to Togo and moved on to Morocco af­ter­wards, where he died.

Mengistu Haile Mariam of Ethiopia con­tin­ues to live in peace­ful ex­ile and out jus­tice’s reach in Zim­babwe.

Mengistu is al­legedly re­spon­si­ble for the deaths of many peo­ple, with es­ti­mates rang­ing from 500 000 to over 2 000 000 peo­ple.

The big­gest tragedy in the pro­vi­sion of po­lit­i­cal asy­lum is that the voices of the mil­lions of vic­tims are quickly for­got­ten. In­stead, lead­ers play po­lit­i­cal games, ig­nore the com­mis­sion of egre­gious crimes and sup­port im­punity.

A very high price to pay, or a rea­son­able trade-off ?

NOT GO­ING AMYWHERE : Gam­bia’s Pres­i­dent Yahya Jam­meh shows his inked fin­ger be­fore vot­ing in Banjul. Jam­meh de­clared a state of emer­gency on Tues­day af­ter los­ing elec­tions last month.

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