Gambiaj.com – (The Gambia is undertaking an unprecedented experiment in transitional justice. On 15 December 2024, the Economic Community of West African States (ECOWAS) formally established the Special Tribunal for The Gambia, a hybrid court designed to prosecute crimes committed under the authoritarian rule of Yahya Jammeh between 1994 and 2017.
Unlike previous hybrid tribunals, such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for The Gambia is the first tribunal set up by a regional organization to address domestic mass atrocity crimes.
The Tribunal raises several jurisdictional and operational questions. How do findings of the Truth, Reconciliation, and Reparations Commission (TRRC) inform criminal prosecutions, and what legal issues may arise in translating truth-telling into criminal accountability?
Can a hybrid tribunal operate effectively when the most responsible figure resides abroad, beyond the reach of regional enforcement mechanisms? What constraints do political realities impose on the pursuit of justice?
This post examines the Special Tribunal’s origins, mandate, jurisdictional and legal challenges, and its broader implications for regional transitional justice in Africa.
Origins and Legal Foundations
The Special Tribunal for The Gambia emerged in the aftermath of Jammeh’s electoral defeat in December 2016 and his subsequent exile to Equatorial Guinea.
President Adama Barrow’s government was confronted with the challenge of ensuring accountability for past human rights violations while consolidating democratic governance. Domestic courts, however, lacked the capacity to prosecute high-ranking officials without jeopardizing judicial independence or national security.
In response, the Gambian government established the TRRC in 2018 pursuant to the Truth Reconciliation and Reparations Commission Act (2017).
The TRRC collected testimony from nearly 400 witnesses and produced a 16-volume report detailing widespread human rights abuses, including extrajudicial killings, enforced disappearances, torture, and sexual violence. It identified the Junglers, a paramilitary unit directly under Jammeh’s supervision, as principal executors of repression.
However, while the TRRC laid the evidentiary foundation, it had no prosecutorial powers, leaving the Gambian administration to seek complementary judicial mechanisms.
ECOWAS’s involvement was both political and legal, and its support provided two essential resources: legitimacy and technical expertise. The Special Tribunal for The Gambia will thus constitute a hybrid court, operating under Gambian law with Gambian and international judges, prosecutors, defense teams, and other personnel.
Jurisdiction and Mandate
The Special Tribunal’s jurisdiction is limited but strategically significant. Under the Special Prosecutor’s Office Act, 2024 (Act), the tribunal may prosecute “cases of serious human rights violations and international and domestic crimes” committed between July 1994 and January 2017. The tribunal will thus presumably cover extrajudicial killings and enforced disappearances, arbitrary detention and torture, and sexual and gender-based violence, including rape and sexualized torture.
This jurisdiction aligns with international norms, including Article 7 of the Rome Statute and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, both ratified by The Gambia. It also reflects the country’s determination to pursue a genuine path toward accountability.
Section 11(2) of the Act grants the Special Prosecutor considerable discretion in determining the appropriate court for prosecutions.
Depending on the gravity and nature of the offence, the suspect’s position of authority, and the interests of victims and the community, the Special Prosecutor may initiate proceedings before the Special Tribunal or the Special Criminal Division of the High Court. With the Attorney General’s approval, cases may also be referred to an international court with relevant jurisdiction.
After consultation with the Director of Public Prosecutions, the Special Prosecutor retains the power to transfer or take over cases whenever required to safeguard efficiency and the interests of justice.
Moreover, two distinct prosecutorial avenues emerge from the Act. First, the Tribunal may pursue cases explicitly recommended for prosecution in the TRRC Report. Second, the Special Prosecutor may initiate proceedings arising from further investigations into the TRRC’s findings.
In the latter scenario, pursuant to Section 12(2) of the Act, “the Special Prosecutor shall seek the approval of the Attorney General to prosecute any person who was not recommended for prosecution by the TRRC”.
This provision underscores the structural need for cooperation between a Special Prosecutor (presumably international) and the Gambian Attorney General, thereby reflecting the hybrid nature of the Tribunal.
Section 13 provides that the Special Prosecutor shall have primacy of jurisdiction over cases within the Tribunal’s mandate under Section 12. The Act further grants broad investigative powers (Section 16), measures for the protection of victims and witnesses (Section 18), and access to international technical assistance (Section 24). These provisions are intended to enable prosecutions that meet the evidentiary standards required under international law.
Legal and Practical Challenges
Admissibility of TRRC Findings in Criminal Proceedings and Protective Measures
The Special Tribunal for The Gambia’s reliance on TRRC findings introduces both opportunities and challenges. On one hand, the TRRC provides a solid evidentiary base, including witness testimonies, documents, and expert analyses.
On the other hand, the TRRC was not a judicial body: it operated under a truth-seeking process. Ensuring that evidence collected under a truth commission can meet criminal standards of proof will be a delicate task, particularly given the potential for contested witness credibility and procedural objections.
In the course of future trials, legal arguments will arise regarding the admissibility of TRRC evidence and its chain of custody, among other issues.
This may lead to a slower progression towards a verdict; however, it must be borne in mind that the principle of a fair trial also requires close scrutiny of the authenticity and reliability of evidentiary material in the interests of both victims and defendants.
It must also be taken into account that not all witnesses heard by the TRRC will be willing to testify publicly before the Tribunal, particularly survivors of sexual violence.
The Tribunal will therefore need to adopt specific protective measures, such as closed or private sessions, voice distortion, video pixelation, or the use of witness numbers to guarantee anonymity, to ensure that witnesses can recount their experiences freely, without fear of public stigma or retaliation.
Jurisdiction over a Former Head of State, Extradition, and Judicial Cooperation
Another legal obstacle is prosecuting Yahya Jammeh, currently residing in Equatorial Guinea. Under international law, former Heads of State do not enjoy immunity for crimes against humanity or torture; however, practical enforcement is constrained by political will.
Equatorial Guinea is outside ECOWAS jurisdiction and has shown little inclination to surrender Jammeh.
While ECOWAS could theoretically exert diplomatic pressure, its authority is largely political, lacking binding enforcement mechanisms. The African Union favors non-interference in domestic affairs, limiting recourse to compulsory measures.
Referral to the United Nations Security Council is technically possible but politically improbable, given the veto power of permanent members. Thus, the tribunal faces a jurisdictional gap: its legal authority is clear, but its practical capacity to prosecute Jammeh depends on international cooperation that is far from guaranteed.
A complementary mechanism would be a bilateral extradition treaty between The Gambia and Equatorial Guinea. No such treaty currently exists, and ad hoc negotiation would require sustained political commitment from both states.
Even if an agreement were reached, compliance would not be assured; Equatorial Guinea could invoke different reasons, such as national security, to refuse surrender. The absence of enforceable extradition obligations exposes the Tribunal’s structural vulnerability: its effectiveness rests less on law than on diplomacy and negotiated political will.
Interaction with Universal Jurisdiction
Universal jurisdiction has already been exercised against mid-level perpetrators: trials in Germany, Switzerland, and the United States have resulted in convictions of former Junglers members and the former Interior Minister Ousman Sonko. These prosecutions, however, demonstrate that it is consistently easier to pursue low- and mid-level perpetrators, whereas bringing to justice those at the highest levels of authority remains considerably more difficult.
A Future Legal Issue in Africa?
The Gambian experience has implications beyond its borders. Transitional justice after authoritarianism is always a balancing act: truth commissions can document violations, but without prosecutions they risk producing recognition without accountability. Conversely, prosecutions without dialogue with society may appear externally imposed.
The Gambia has attempted both: a truth commission followed by a Special Tribunal. It is worth noting that this implies that truth-seeking can lay the groundwork for prosecutions if coupled with sustained political will and international support (especially technical).
The broader question is whether The Gambia’s model will be emulated elsewhere in Africa. Could ECOWAS, or even the African Union, take a more assertive role in establishing hybrid courts for mass atrocity crimes? Or will the Special Tribunal remain an exceptional experiment, tested by the difficulty of prosecuting Jammeh?
Conclusion
The Gambia’s transitional justice process, comprising a thorough truth commission, universal-jurisdiction trials, and now a regional hybrid tribunal, is ambitious. However, ambition alone cannot guarantee genuine accountability.
Unless Yahya Jammeh and other senior officials face trial, the Tribunal risks becoming a case of selective justice. Whether it becomes a legal model or a cautionary tale hinge on the alignment of key legal variables: robust procedural safeguards (including witness protection and fair-trial standards), the ability to translate truth into admissible criminal evidence, regional and international cooperation, and political will, all preconditions to prevent impunity for atrocity crimes.
