Torture Briefs and Up-river Explorations

2016 Squire MatthewBy Matthew Squire

I have now been in The Gambia interning at the Institute for Human Rights and Development in Africa for over seven weeks now.  So far, my time here in The Gambia has mostly been spent working, working out, and exploring the country.  

Crossing the River Gambia from Barra to Banjul

Crossing the River Gambia from Barra to Banjul

Work at IHRDA

On my first day, I was plunged into the deep end.  IHRDA at the moment has a significant number of projects on the go in French, so there has been no lack of work for the McGill intern!  Jetlagged and disoriented, I was given two dossiers of evidence to sort through and summarize my first day.  As it turns out, I would end up drafting the briefs of these two cases as well.  I just finished the second draft for each, and I have learned a lot in the process about the African human rights system.

My two cases were both from the same African country and dealt with torture and arbitrary extrajudicial killings by agents of the state.  The facts of both cases were strikingly similar and involved alleged horrific acts of torture by police officers, leading to death, permanent injury and disability.  In both cases, the state allegedly tried to cover up the acts.  From what I can tell from the evidence, medical reports and autopsies were not conducted, eyewitnesses changed their testimonies, investigators made no attempt to interview key eye-witnesses, and even after charges were laid, the accused were never brought before the court despite being summoned.  Years onwards from the incidents, the trials have yet to produce any result, and the victims have yet to receive any compensation.

Both of these cases are being brought before the ECOWAS court.  IHRDA is making more use of alternative mechanisms to the African Commission these days – it can take years for the Commission to reach a decision.  Since an amendment to its treaty in 2005, the ECOWAS court can now hear human rights cases brought by individuals.[1]  In theory, judgments of the ECOWAS court are also binding, unlike the Commission. 

The legal arguments of my briefs were built around the legal instruments that the state has ratified.  Using the jurisprudence of the African Commission, the Interamerican and European court systems, and the UN committees, as well as general comments from various UN bodies, I argued that the state was responsible for not exerting the required diligence to prevent, investigate, and remedy the alleged acts of torture and killings. 

In terms of remedies, in addition to demanding individual remedies for the victims, I asked for the strengthening of the country’s laws against torture, as well as for programs to build awareness among the law enforcement agencies and the population at large on human rights to try and prevent these kinds of acts in the future.

I still wonder at the end of the day what impact these cases will have.  From what I can tell, these are going to be the first cases on this issue brought against this state, which is really exciting.  However, the record for human rights cases in Africa, even for cases at the ECOWAS court, is not exactly promising, with very few decided cases compared to the number of violations. 

The ECOWAS court does, however, have an implementation procedure for its decisions, unlike the African commission.  Following a decision against a member state, a “competent national authority” of the state must be designated to receive a “writ of execution.”[2]

In one case, Manneh v. The Gambia, it was found that The Gambia had violated the African Charter for arresting and detaining without a warrant a prominent journalist, Chief Manneh.[3]  In this case, The Gambia responded with denial that it was holding or had ever held Manneh.  In this case, ECOWAS, despite having the power to, declined to impose sanctions on The Gambia.[4] 

In another case, Koraou v. Niger, Niger was found responsible for the actions of its judiciary for not taking steps to stamp out slavery.  Hadijiatou Mani Koraou, who had suffered horrendous sexual abuse for ten years as a slave in the household of an older man, brought an action in a local court to regain her freedom.   In the judgement of March 20, 2006, the local court asserted that she was free.  However, on appeal to the High Court, the judge stated, “The marriage of a free man with a slave woman is licit, in as far as he does not have the means of marrying a free woman, and if he fears falling into fornication.”[5] For this statement, Niger was found responsible, as it did not immediately denounce Hadijiatou’s status as a slave and did not institute proceedings against her captor.[6]  In this case, it has been noted that the government of Niger responded, unlike the government of The Gambia, because the decision gave support to political efforts to eradicate slavery at the domestic level.[7]  

Perhaps there is promise for change with these cases I have been preparing.  The country against which these cases are being brought has been making progress in improving governance and human rights, especially in improving violations committed by the security forces.  Maybe like with the Niger case, a decision from the ECOWAS court could strengthen trends of reform inside the country.  However, even with the ECOWAS court, it will take time.  A case filed by IHRDA last year only just received its hearing date, which is still several months away. 

At the end of the day, I guess you have to stay optimistic if you are working in human rights. It would be so easy to become pessimistic about the prospects for success for many of the projects that IHRDA is working on 

Life as an intern in The Gambia  

Full days of legal research and writing can be draining.  I really have been appreciating making use of my “off-time” to relax and explore the country a bit. 

Sunday afternoon football on the beach

Sunday afternoon football on the beach

Staying fit seems a big part of life here. I run several times a week down on the beach, where it’s normal to see large crowds of guys doing squats and pushups on the beach at any time of the day.  I also joined the local gym near where I am living.  It is in general really overcrowded.  Now that it is Ramadan, the busiest time is around 6-7:30 pm, with people trying to get in an intense workout before breaking their fast. 

There is not a whole lot in terms of things to do in and around Serrekunda, where I am staying, other than the beach and the nightlife, as well as a couple of tourist attractions.  The Gambia is a popular tourist destination for European holidaymakers, but there is a contingent of generally older female and male holidaymakers here for sexual tourism, which makes me very uncomfortable. 

Monkeys at Bijilo Forest Park in Kokoli

Monkeys at Bijilo Forest Park in Kokoli

I have made two trips outside of the city since I have been here.  On my first trip, I went to visit the approximately 2000 year old stone circles of Wassu and Ker Batch.  These monuments, more of which are found in neighboring Senegal, are believed to be ancient burial sites.  On this trip I also unwittingly stumbled into the president’s “Vision 2016” tour of the country, however, where I got a little too close for comfort to the 100 some-odd military vehicles that make up his convoy.  There has been political unrest in the capital Banjul in the past few months, and I was very nervous to suddenly come face to face with the president and his security detail. 

Wassu Stone Circles

Wassu Stone Circles

On my second trip, I visited the Chimp Rehabilitation Project in the River Gambia National Park.  An inspiring project, the original founders rescued chimps from captivity and trained them to survive in the wild.  The chimps are now confined to three large islands in the middle of the River Gambia, and for over a decade have had no human interference with their territory.  Project staff, however, do supplement the diet of the chimps daily.  The project receives very little outside funding, and relies mostly on the income from its very well-run and very comfortable tourist camp, of which I was the only visitor since April.  I was very pleased to see a sustainable ecological project that also provides jobs for the local community in this country. 

Beautiful Chimp in River Gambia National Park

Beautiful Chimp in River Gambia National Park

From what I have seen so far, it seems such a shame to me that so much focus and emphasis has been put on the country’s low-budget beach and nightlife tourism, at the expense of fascinating historical sites like the stone circles, the country’s beautiful ecology, and well-run sites such as the Chimp Rehabilitation Project. 

The end in sight

I have only five weeks remaining here in The Gambia.  I am finding the work at IHRDA fascinating and very rewarding, and I am looking forward to working on several new cases coming up in the final few weeks.   I am also looking forward to the two upcoming long weekends, both of which I plan to make use of to visit neighboring Senegal, a country culturally similar but politically different from The Gambia.   

[1] Frans Viljoen, International Human Rights Law in Africa, 2nd ed (Oxford: Oxford University Press, 2012) at 490. 

[2] Ibid at 498. 

[3] Ibid.

[4] Ibid at 498. 

[5] Hadijatou Mani Koraou v Niger (2008), ECW/CCJ/JUD/06/08, online : IHRDA <http://caselaw.ihrda.org/doc/ecw.ccj.jud.06.08/> at para 83. 

[6] Ibid at paras 83-84. 

[7] Viljoen, supra note 1 at 498.  

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