Over the past three years, Germany has presented itself as a leading country for implementing international criminal law, conducting several trials dealing with crimes committed in Syria and Iraq. Now, another universal jurisdiction trial is nearing its end, one that has taken Germany’s justice efforts to the African continent. In the picturesque town of Celle in Northern Germany, Gambian national Bai Lowe is accused of crimes against humanity and murder allegedly committed in his home country twenty years ago. On November 16, the prosecution gave their closing statements, urging the court to sentence Lowe to life imprisonment. The following day, the joint plaintiffs and their lawyers gave their final pleas. They, too, believe in Lowe’s guilt – but emphasized that judging him would only be one step on a long road to justice for post-dictatorship Gambia.
Lowe is alleged to have been a member of Gambian ex-dictator Yahya Jammeh’s notorious death squad known as the “patrol team” or “Junglers”. According to the indictment, “the aim of [the Junglers’] operations was to intimidate the Gambian people and suppress the opposition.” One of the victims was the prominent journalist Deyda Hydara, whose son Baba Hydara has joined the proceedings as a plaintiff. Lowe is accused of being the death squad’s driver. He allegedly drove the killers to their missions. And in the killing of Hydara he is said to have steered the car next to his victim’s vehicle while the others were shooting. The most important evidence against Lowe is an interview he gave in 2013 to the oppositional US-based Freedom Radio, where he described being present during the assassinations. In their final statement, the prosecution acknowledged that he had accidentally incriminated himself while trying to expose Jammeh’s crimes – but concluded that this could not change the answer to the question if he was guilty in a court of law. “He tried to make amends for something that was beyond repair.”
It was no surprise that the prosecution saw Lowe’s guilt as proven after 58 days of trial, during which his defense struggled to bring forward credible alibi witnesses or exculpatory evidence. What was less expected was that they gave him significant credit for playing just a minor role in Jammeh’s crimes and for later making an effort to stop them. Over the course of the trial, several witnesses confirmed the major impact Lowe’s interviews had on “waking Gambians up” and “demystifiying Jammeh”, which ultimately helped end his rule. In the very first minutes of her speech, federal prosecutor Christina Schmitt insinuated that she did not see Lowe as a ruthless bad guy or evil mastermind. After mentioning the terror of Yahya Jammeh’s regime, she acknowledged “how difficult it is to stay out of such a system that eventually compromises, destroys, taints everything.” The defendant had arranged himself with the idea that “a driver is not a killer”, she added. “But the law expects more from someone who wants to be acquitted of homicide.“
Lowe appeared in court in a dark red sweater that matched the robes of the prosecution. As always, he exchanged buoyant handshakes with his defense lawyer and his translator. He seemed relaxed, as he listened to Schmitt and her colleague Ms. Höfer described the indicted crimes and the context in which they took place, basing many of the established facts on the findings of the Gambian Truth, Reconciliation and Reparations Commission (TRRC). “Jammeh’s rein was marked by a devastating human rights situation from the very beginning,” they explained. Anyone who was an actual or perceived threat to the president’s power could become a target of his security forces: the National Intelligence Agency, the police and the Junglers. The result was an “atmosphere of fear and a loss of trust in state institutions and society” that made impossible any kind of organised or substantial opposition against the regime.
In the eyes of the prosecution, Jammeh’s regime waged a widespread and systematic attack against a civilian population: the prerequisite for crimes to be considered crimes against humanity. It was widespread because it took place throughout the country and “hurt or killed a multitude of Gambian citizens.” Its systematic nature lay in the death lists and killing squads, the president’s hateful speeches against the opposition as well as the prevalence of torture and total impunity for any state actors’ crimes.
Two murders and three attempted
It is against this backdrop that they placed the alleged crimes of Bai Lowe: the attempted murder of lawyer Ousman Sillah, the murder of journalist Deyda Hydara and injury of his passengers in 2004, and the murder of Dawda Nyassi in 2006. Regarding Sillah, Schmitt described how Lowe drove the Junglers to his mansion on the 25th of December 2003. There, Sanna Manjang and Bora Colley got out of the car and shot the lawyer until they believed him dead. “The defendant was waiting in the car and had already gotten ready to drive. He drove the perpetrators away from the scene.” Sillah survived the attack, but had to give up his work and leave the country. Until today, he suffered from the physical and mental consequences of the attack.
Other victims were not as lucky. According to the prosecution, Jammeh had developed a personal hatred towards Hydara, who did not tire of criticizing him in his weekly column “Good morning Mr President”. “A lot of courage and faith is necessary to pursue proper journalistic work under such circumstances,” said Schmitt. People like Jammeh “who surround themselves with an aura of grandeur do not like taking advice from others.” She described how Jammeh ordered the Junglers through their leader at the time, Tumbul Tamba, to kill Hydara. On the 16th of December 2004, the journalist was on his way home from the 30-year anniversary party of his newspaper The Point. He was driving home his colleagues Ida Jagne – who has joined the Celle trial as a plaintiff – and Niansarang Jobe, when a car approached from behind and flashed its lights. Hydara slowed down to let it pass, but the passengers started firing shots at him, killing him on the spot and injuring the two women in the car. The prosecution considers them victims of attempted murder.
Finally, the prosecutors summarized the murder of Dawda Nyassi, a former Gambian soldier who Jammeh saw as a potential threat, after he had gone to Liberia to support warlord Charles Taylor. In 2006, the Junglers were instructed to kill him. They arrested him and tied him to a tree near the airport, then shot him and buried him in an unknown location. Nyassi’s eldest son Omar is one of the plaintiffs in the case. “We cannot bring him back, but we want his soul to rest in peace, and for that we need to know where he is buried and when he was killed”, he said the next day in his closing statement.
“Just” a driver
What all these crimes have in common, the prosecution believes, is that Bai Lowe was the one driving the Junglers – and in Nyassi’s case their victim, too – to the crime scenes and back. He did not kill anyone with his own hands. In fact, he may never have even left the car, said Schmitt, quoting Lowe as saying: “I was always in the car. I never got off. My feet did not even touch the ground and I never turned off the engine.” But still they consider him a co-perpetrator, because he was a member of the team and carried out “a task that was indispensable for the success of the crime.” Schmitt observed how often Lowe mentioned that he was “just” a driver in the interviews he gave to Freedom Radio journalist Pa Nderry Mbai and later to journalist Fatou Kamara. She believes that he was “a man with values and a sense of justice” who convinced himself that driving was not killing. The prosecution, however, could not agree with that conviction.
The self-incriminating interviews were “the central pieces of evidence” for the prosecution, said Schmitt. She went on to explain why the prosecution did not believe Lowe’s statement in court that he had lied about being present during the crimes to make his account more credible, that he had merely heard all those stories from his colleagues. The interviews were authentic, the prosecution believes, because of the amount of “marginal details and subjective feelings” Lowe described in them. He quoted direct speech and “jumped back and forth in the story without losing the overview of the temporal classification.” And he always “differentiated precisely between hearsay and what he witnessed himself.” The interviews, the prosecutors acknowledged, “exposed a multitude of atrocities to the public for the first time.” And they also ended up putting Lowe in the dock. In 2017, the Swiss police became aware of the interviews and contacted the German authorities to arrange an interrogation with Lowe, who was living in Germany. They were interested in him as a witness against Gambia’s former interior minister Ousman Sonko, who was in pre-trial detention in Switzerland and whose trial is expected in 2024. Lowe did not agree to testify at the time, but the German police became aware of his interviews and started investigating against him.
“Criminal investigations need to begin in the Gambia”
Lowe listened to the prosecution’s closing statement without any visible reaction, sometimes exchanging muffled conversations with his personal translator. After the prosecutors requested a life sentence for crimes against humanity, Lowe left the court room, slightly grinning as he often does, but seemingly in a rush. The next day he appeared in a bright blue track suit to hear the final pleas of the joint plaintiffs Omar Nyassi and Baba Hydara. Their lawyers Patrick Kroker and Peer Stolle addressed the question why this trial should take place in Germany, when there is a transitional justice process happening in Gambia itself. “Gambian civil society and some of the state institutions have been dealing intensely with the crimes of the Jammeh era, but there is still a lack of criminal prosecution”, said Stolle, adding that he hoped the Celle trial would have a positive effect on trials in the country itself. Kroker added that justice played a crucial role on Gambia’s path to democracy. Unlike in South Africa, the Gambian truth commission was not meant as an alternative to criminal prosecution, he said. “There shall be no truth at the expense of justice.”
Kroker’s client Omar Nyassi agreed that the trial was an important step to justice. But he urged the international community and the Gambian government “to bring all criminals to justice. Only then we can live in peace.” Finally, it was Deyda Hydara’s oldest son’s turn to speak. He honored his father saying that as a journalist, he refused to be silenced. “Each week in his column ‘Good morning Mr President’ he spoke critically about what was wrong in the country. He knew that was dangerous, he told us so, and he was right.” Hydara looked Lowe straight in the eye when he said that a team of Junglers including the accused killed his father “in cold blood”. Lowe, who looked back at him, slightly shook his head to that and mumbled something incomprehensible.
“I know Bai Lowe was not the one who planned to kill my father, that he was only a little man,” Hydara added. “I know it was Jammeh who wanted my father killed and gave the order to murder him and rewarded the Junglers for completing the murder.” Therefore, he would not rest until Jammeh himself – who lives in exile in Equatorial Guinea since he was forced out the country in January 2017 – was brought to justice, he said. For him, the trial in Celle could “send a strong message to the Gambian government that it is time for justice. Criminal investigations need to begin in the Gambia. Victims should not have to go abroad to seek redress.”
By Hannah El-Hitami (justiceinfo.net correspondent in Germany)
