Will Fatou Bensouda face the Truth Commission in Gambia?

On the day of the inauguration of the Truth, Reconciliation and Reparations Commission (TRRC) in The Gambia, on 15 October 2018, Fatou Bensouda's speech seemed clear. The Prosecutor of the International Criminal Court (ICC), a Gambian national, first underlined how the work of this Commission – charged with shedding light on the military dictatorship of Yahya Jammeh, between July 1994 and January 2017, and the serious human rights violations committed under this regime – will be "so critical to the future of this country and to the strengthening of the rule of law on which this future can be secured." She stressed that this justice must be "not only in words but through real actions". "As I often say, protecting citizenry from the scourge of war and conflict through the vector of the law demonstrates political leadership and not weakness," she added. "In order for the country to move forwards to greater heights, it must reckon with its past. It must engage in a good faith effort to uncover past wrongs. It must identify and hold those accountable, provide the answers and indeed the recognition and justice that victims and affected communities so deeply earned for and desired." And she concluded firmly: "Accountability begins at home.”

However, many in the audience were indisposed, even shocked by the presence of the guest of honour. They had in mind the Gambian past of the prosecutor, who has since become a celebrity on the international judicial scene. For the woman who, for fifteen years, as Deputy Prosecutor and then Prosecutor of the ICC, has been supposed to embody a certain moral righteousness and the overriding concern of the victims, has once faithfully served and defended, for years and in the highest judicial offices, the Jammeh dictatorship which is now exposed by the Truth Commission.

Six years of loyalty to Jammeh, twenty-five years of silence

Fatou Bensouda became a prosecutor in Banjul, the Gambian capital, in February 1994, five months before the coup d'état that brought young soldiers to power, headed by Yahya Jammeh. She was 33 years old. By 1995, she was Deputy Director of Prosecutions, and promoted to Principal State Counsel the following year. She then became Solicitor General and legal secretary to Yahya Jammeh, reporting directly to him. And in 1998, she was appointed Attorney General and Minister of Justice, a position she would hold for two years.

Thus, during the first six years of the dictatorship, Fatou Bensouda enjoyed a meteoric and remarkable career to reach the highest national judicial and political positions in the field of justice, under a regime in which the judicial system was marked by multiple and serious violations of the law, the systematic practice of torture, the fabrication of evidence, illegal detentions, enforced disappearances and deaths in custody.

Fatou Bensouda left her country in 2002, when she joined the International Criminal Tribunal for Rwanda before joining the ICC two years later. Once away from power, she will never make the slightest criticism of the dictatorship she had served, despite being asked to do so by the diaspora. In January 2016, under pressure from journalist Tim Sebastian to denounce human rights violations in The Gambia, during television show "Conflict Zone" on Deutsche Welle, she replied:

- “I am not going to make statements on political issues that are happening in countries.

- This is not political. This is abuse. This is killings, this is torture.

- Is it crimes that fall within my jurisdiction? That is the question.”

It is this past and silence that explain why on October 15 last year many Gambians found it particularly inappropriate that she be invited to inaugurate the TRRC. And it is this part of the truth that began to emerge from the public hearings opened on January 7, 2019, before the TRRC in Banjul. To date, two victims have directly compromised Fatou Bensouda when she was a young state prosecutor and deputy director of prosecutions. Here are their testimonies.

Batch Samba Jallow's torture

On 12 October 1995, at 4 a.m., four soldiers forcibly entered the home of Batch Samba Jallow, a primary school headmaster who had recently arrived in Banjul from the province. Six other members of the security forces surrounded the house. Daba Marenah, one of the heads of the feared National Intelligence Agency (NIA), told Jallow that he would understand the reasons for his arrest once at NIA headquarters. Once there, Jallow had to undress before sitting in a wooden chair. "I saw them bring two electrical chords. They connected each foot to sockets," he said, on June 23rd, in this house in Banjul where his life was turned upside down almost 24 years ago.

With his limbs tied together, he received electric shocks to his feet (his two small toes no longer have nails today) and then to his ears, nose and genitals. The interrogation session, dotted with torture, lasted until 11 p.m. Another NIA member, Baba Saho, hit him on the cheekbone with the butt of his pistol. Taken to another room, one of his fingers was crushed. "Beating and insults continue throughout," he said.

Jallow was exhausted. "Give us the names we want or we continue. If you die, it’s no problem," his torturers told him. The floor was strewn with broken glass to aggravate injuries and pain. "All my body was cut and bruised," he said. He was hit on the head with a gallon of ice water. He fainted. "Sometimes I would hear something ; sometimes nothing." He was also covered with a plastic bag before being plunged into a bucket of water. "I didn’t know if I was alive or dead. But what came next is the worst. I wanted to go to the restroom. I found a cup smelling urine. They asked me to drink my urine or I die." They pinched his nose, opened his mouth and made him drink his urine by force. Almost twenty-four years have passed, but to this memory, the former prisoner broke and humbly plunged his face into his hands.

Then the torturers came back with a knife. "They put me on the floor, naked. They said it was time to die. They cut my body from the bottom of my buttocks down the leg. » Five days went by, without food. "My head was hitting like nothing you can understand."

It is not unusual for a moment of humanity to arise in these places of nightmare. For Jallow, this gesture would come from a guard, who had been a schoolboy in one of the five establishments that Jallow had run, and who would discreetly give him two tablets of paracetamol. They were life-saving, he said.

Jallow was taken in a dump truck to the Kotu police station. Then he was transferred by NIA agents to the Fajara barracks. There, he met about sixty inmates. Eighteen prisoners had to share a basin of food and a gallon of water. "It's a scramble," said Jallow.

It was 32 days before they were brought before a judge. During this whole period, they were not allowed to wash. He discovered that the small branches of an orange tree can act as a toothbrush. "We were so dirty that vultures came to feed on you. Soldiers had to come and kill them," he said.

Heavier charges, violations of rights

Jallow was accused of participating in a demonstration that took place on his way to an appointment with the charity Catholic Relief Services. But he remembers being approached a few months earlier to run for the junta party in his Makumbaya region, some 260 kilometres from Banjul. He had declined, while confiding to his solicitors his concern about the behaviour of the military. "So I was not in their good books," he said.

The Nigerian judge who welcomed the prisoners to court was so shocked by their appearance that he ordered them to go wash before he proceeded with the case. Back at the barracks, the detainees met four International Red Cross delegates who interviewed them and facilitated access to a shower. "It was a bad experience," said Jallow, "the dirt had already cracked the skin, it was very painful. »

According to a newspaper of the time, which Jallow has carefully kept, there were 25 of them being referred for sedition in this case. But for six of them – including Jallow, appointed as first accused – the crime of sedition was abandoned in favour of the more serious crime of treason. It was Fatou Bensouda who had asked for this new charge. For this handful of men, this meant that they were now facing life imprisonment or the death penalty. And that meant that their case must be transferred to the Supreme Court.

This cannot be forgotten.

Jallow's resentment is fueled by the memory of the prosecutor who was then defending the interests of the state in whose name he was made to endure torture, inhuman conditions, illegal detention and false accusations. "She heard that I was talking about the way we were treated, and to have a lawyer. The judge made me to ask these questions to her. She very well knew that we needed to have one. Her answer was: ‘You are charged with treason, you don’t have that time’. She was not cooperative, not helpful. She could do the right thing. We were dumped in this corrugated and cement store, with no food, no water, no medication. And she wouldn’t say anything.”

According to the Daily Observer's hearing report, dated 12 December 1995, Jallow, who was only told about the charges against him the day before, did complain to the court that he didn’t have access to their lawyer. Prosecutor Bensouda responded by referring the blame to the "relevant authorities". In a written response to Justice Info on July 9, Fatou Bensouda “categorically denies” the fact “that she expressed no concern about the lack of access to lawyers”.

"If you follow bad orders, then you are fit for the job"

Thirteen months passed, during which time the detention was extended without new evidence to be shown. "She did not produce any evidence. She said she would bring it. Up to this day. There was none. They were trying to recruit members of the NIA to be witnesses," said Jallow.

In November 1996, the elections so feared by the putschists had passed and a group of soldiers presented themselves at the barracks. "You have been discharged, you are free to go, on condition," they told the prisoners. These conditions were five, quite redundant, Jallow recalls: not to be involved in politics, not to meet more than three people on the street, not to participate in political meetings, not to support anyone with responsibility in a political party, not to belong to a political party.

Jallow signed. He was taken home. For two weeks, two agents were watching his house. He packed his bags and went back to the province. By the end of the year, he had left the territory and taken refuge in Senegal. In September 1999, he flew to the United States as part of the American resettlement program. He would only return to Gambia after the dictator's fall in January 2017.

"She was afraid of the regime," now said 68-year-old Batch Samba Jallow, referring to Fatou Bensouda. "She could have resigned. Many resigned, they were not willing to be part of the regime. But she was expecting something bigger. To be a minister," he alleged. "She is not the person who can help people in political need. The day of the launch of the TRRC opened, when she came, we were very angry.”

- “Should she, in your opinion, be called to testify?

- She will be called.

- What would you expect her to say?

- She should be interviewed on things she knows. Why she will not work effectively on cases of Gambians? She was contacted by the Gambian diaspora to speak out after she left. There was no reply. She never did.

- Wasn’t she following orders?

- If you follow bad orders, you are fit for the job.

- And if she refuses to come?

- If she says so, that’s something else. Gambians will know that she has hidden lots of things.”

Sainey Faye's ordeal

Sainey Faye's small shop, lost in the maze of the Serrekunda market, at the beginning of a narrow, dark, covered aisle, offers a wide range of soaps, traditional care products and honey. A young woman is breastfeeding on a small bench on the side inside this small business of barely 5 square metres. With wide shoulders and muscular arms, Sainey Faye has a strong physique and a face with harmonious features, which give an equal impression of strength. His upper eyelids, whose swelling gives the feeling of half closing his eyes, give his look an attractive depth that is reinforced by a generous smile. If Batch Samba Jallow, although simple and modest in appearance, has the confidence and eloquence of a teacher, Sainey Faye has the restraint and temporary shyness of a small trader.

Faye was arrested on the same day, October 12, 1995, when he went to the United States Embassy to pick up a visa form. On the main street, he found himself face-to-face with many civilians under arrest. And here he was, in turn, embarked. When the men who arrested him asked him to move away from the American embassy to a more discreet place, he refused and physically opposed it. His leg was broken and he was taken to the Kairaba police station at the so-called "Traffic Lights" junction. Then he was transferred to NIA headquarters in Banjul. NIA's senior officer Marenah told him that his market stall (different from today's) was the place for seditious meetings. He was undressed, interrogated, beaten, and received electric shocks all over his body, including his genitals. "Before you kill us, we will kill you first," his torturers told him.

The next day, he was sent to the Fajara barracks, where he was subjected to further threats of execution. It was there, upon hearing from the BBC, that he learned that his group was accused of aiding in a plan to overthrow the government. "All of us were all civilians. No weapons. No documents," he said.

Torture? "Everyone could see the marks, nobody could deny"

He talked about a month without showers, medicines and clean clothes, and with minimal food. It took eight months before he got a lawyer. The evidence of the alleged conspiracy brought to the hearing by prosecutor Fatou Bensouda, he explained, consisted of the photo of former President Dawda Jawara (overthrown in 1994 by Jammeh), as well as another leaflet featuring the faces of junta leaders with hostile comments. That was all. His lawyer asked if these documents were found on his client and if it was a crime to have a photograph of the former president. The prosecutor replied that it was not. But when the lawyer asked for bail, she opposed it and invoked a security threat.

At the hearing, "one of us was taken as an example of torture. Everybody could see the marks, nobody could deny," remembers Sainey Faye. At the end of the second hearing, the judge ordered the release on bail. But the hope was short-lived. An hour later, the decision was reviewed and Faye returned to the prison barracks. The prosecutor had invoked a new decree authorizing a 90-day detention for security reasons.

The first Nigerian judge was replaced by a new judge, also a Nigerian. "The new judge told Fatou Bensouda to put her house in order," said Faye. Then "the judge said she couldn’t stay in this case. She withdrew." The 90-day detention was renewed twice. The NIA was trying to convince some members of the group to testify against others in exchange for "gifts," said Faye. Then, after thirteen months, they were told that they were pardoned, under the conditions described by Jallow.

In her response to Justice Info, Fatou Bensouda also denies being aware of the torture endured by the two witnesses. She further claims that it was her actions that led to the charges being dropped.

Essa Faal's convictions and prudence

When on January 28 this year Batch Samba Jallow testified publicly before the TRRC and implicated Fatou Bensouda, the Commission's lead counsel, Essa Faal, seemed caught off guard and embarrassed. Essa Faal is the incisive, impeccably prepared and willingly implacable conductor of the TRRC public hearings that have, since January, made the Truth Commission in The Gambia a national event to which the public is riveted. He is a key contributor to the success of this justice process and the credibility of its investigations. He is also a former ephemeral member of the State Prosecutor's Office of The Gambia in 1994. And more importantly he is a former colleague of Fatou Bensouda at the International Criminal Court. At the hearing, the dialogue between the victim and the lead counsel seemed to end in disagreement about the conclusions to be drawn from Jallow's experience.

- "Who was the prosecutor in this case? asked Essa Faal.

- Fatou Bensouda. She was the mastermind, replied Jallow.

- Ah, she was the prosecutor.

- Yes, she was the mastermind of everything we went through.

- Ah... You would agree that Mrs Fatou Bensouda, if she was the prosecutor at all, would have come at the tail end of things, at the prosecution stage of things and therefore would not have participated in anything that happened before your prosecution. Correct?

- No, I don't agree.”

It did not take much longer for the suspicions to arise that preferential treatment or protection may be given to the former personal legal adviser and minister of Justice of Yahya Jammeh.

In his Spartan office at the Commission's headquarters, Essa Faal spoke with conviction about the TRRC's mission. "Forgiveness is important. It is a more assured way to get to the truth," he explained. Faal was just as easily open to self-criticism. "All of us contributed. Our silence contributed. Especially the intellectuals. We’ve seen the bad laws. If we complained it was in our house. Nobody would say anything and that encouraged the dictator. He kept pushing the envelope," he said. When asked about the allegations against his former boss at the ICC, Essa Faal answered without hesitation: "This is an unfortunate situation. The person [the witness] didn’t really understand. They say things they don’t understand. To accuse Fatou Bensouda of being responsible for everything that they went through would be a bit unfair.”

The Minister of Justice's explanation

When questioned on the BBC on 30 June, Gambia’s Justice Minister Abubacarr Marie Tambadou followed the same line as Essa Faal. Tambadou is another crucial actor in the justice process in The Gambia. He was the one who imposed Faal on his position. It is he who gives muscle to the TRRC whenever it needs it, strengthening the Commission's credibility. His support for the process is unfailing. But he also worked at the State Prosecutor's Office in the late 1990s, before moving to the private sector and distinguishing himself in the defence of human rights. And he also worked at the ICTR at the same time as Fatou Bensouda, then under Hassan Jallow, former ICTR Prosecutor General (and superior of Bensouda) and now President of the country’s Supreme Court. When asked whether or not Fatou Bensouda should be called to testify before the TRRC, Tambadou replied: "That will be a matter for TRRC [to decide]. But having said that, as a keen follower of the TRRC, I know that the prosecutor Fatou Bensouda has not been mentioned in a very credible manner. We have to remember that she was only a prosecutor at the level of the state law office and therefore she came at the tail end of any legal process.”

Bensouda wrote to Justice Info that she “would have no misgivings whatsoever” to appear before the TRRC, that she “has nothing to hide and her conscience is clear.” But she leaves open the fact that her current position at the ICC may or may not prevent her from appearing.

"She must speak"

Sainey Faye, now 65 years old, never lost the limp inherited from his abuse in 1995. And he has no hesitation on whether Fatou Bensouda's responsibilities during the period when she served the dictatorship should be discussed publicly. "We were told that she was just securing her position, that she had to do it. But for us, she wasn’t good. We thought she was hard on us," he said. "She should come. She is a lawyer. The way people were accused, the lack of evidence, she should shed light. Let her talk about our case, how she sees it and how we were treated, unlawfully.

- Do you wish her to express regrets?

- Yes, if there is. I think she will come. From start to end, she is part of it. She has to say something about it.”