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Access to Justice in The Gambia

September 27, 2019

How does transitional justice become truly inclusive? What are the essential legal mechanisms necessary to ensure a participatory democracy?

These are important questions that six of us had the opportunity to delve into last month, when we had the opportunity to travel on a fact-finding mission to The Gambia from August 24, 2019 to August 31, 2019.

After spending time conducting background research at the Law School weeks before the fieldwork, we conducted interviews with members of the government and civil society, including journalists, attorneys, human rights defenders, activists, academics, civil servants, security agents, and government officials. We were supervised by Penn Law Associate Dean of International Affairs Rangita de Silva de Alwis and received guidance from Dean Theodore Ruger and Professor Regina Austin. The financial support for the mission was made possible by the Chubb Rule of Law Fund.

Our current report is a preliminary working paper based on initial findings on access to justice during a time of transition in The Gambia, following the Yahya Jammeh’s 22-year long rule. We all had distinct - and sometimes differing - takeaways from our fact-finding mission, and this is well reflected in our working paper. We hope to submit our final report in December. The reflections below capture our key takeaways from this experience.

Abraham Moussako:
What I found most fascinating about our time in the Gambia was the ability to see, up close and through the eyes of key stakeholders, a society in a moment of transition. Here meaning, transition about its government, its social contract, and the relationship between the state, the people, and civil society. The lessons we learned during our trip I are lessons—about political decision making, nation building, and social movements—that I will take with me throughout my legal career.

Fatoumata Waggeh:
In many ways, I was an insider and an outsider. Unlike my peers, this was not my first time to The Gambia. I visited the country numerous times to visit family. However, this trip I approached The Gambia differently. I was a law student interested in analyzing the country’s legal apparatus and path to transitional justice. After seven days, I left The Gambia inspired. I learned about my power as a person of the Diaspora to effect change. I learned about the new visions that all Gambians believe and revere. I met like-minded young professionals and activists committed to transforming the country.

Kunal Kanodia:
What is true democracy? Which voices are heard, and which voices that are left out and silenced? While in The Gambia, we were able to meet with a variety of stakeholders who are positioned very differently: for instance, on the same day that we met with the Constitutional Review Commission, we met with a Marxist activist who had no faith in the transition process. We met with stakeholders for whom LGBTQ rights was a non-issue (or a Western import), in a country where you can go to jail for life for being gay. We also met with LGBTQ activists who are working against insurmountable odds to harken a brighter future for queer Gambians. These varied experiences allowed me to better understand the nuances of transition in a country that is seeking to build a better future for all. Ironically, all Gambian voices are not always part of this conversation. Learning to engage with this transition process - with its glaring imperfections - helped developed skills that will be vital in my legal career.

Brendan Holman:
The transition from dictatorship to democracy in The Gambia was an arduous, in some cases existential process. Speaking to the people who risked their lives to protect their sliver of a West African country reminded me about the power of activism and law, as well as how the latter can be exploited for diametrical ends: just as law can serve as an equalizing, illuminating force, nefarious actors can also exploit it to persecute opponents and stifle dissent. Our meeting with Antouman Gaye, founder of the law firm A.A.B. Gaye & Associates, offered a deeply poignant look at the power law. After a political opposition leader was accused of murdering a Jammeh associate in 2000, Gaye represented the opposition leader and won his acquittal in 2005; subsequently, Gaye was imprisoned for his victory.

Law’s legitimacy, of course, rests on it acting without bias toward both opposition leaders falsely accused as well as the morally dubious who falsely accused them; justice demands fair procedure, with law and not personal animosity guiding the way. Gaye, whose practice and livelihood suffered at the hands of the vindictive former regime, believes members of Jammeh’s regime deserve what they denied others throughout Jammeh’s rule: a fair trial. When asked if he would represent Jammeh, Gaye responded in the affirmative, much to the consternation of his daughter in the room. If we as a legal community could universalize that level of integrity and commitment to the rule of law, the myriad problems that plague our industry would perhaps fall in succession. Mr. Gaye’s example should reinvigorate our purpose; beyond the comforts of our daily lives lie substantial threats to human rights, and despite the proverbial bliss—and lucrativeness—of ignorance, we as legal practitioners must not close our eyes to them.

Ryan Plesh:
“I just want to get an idea of where each of you are from…Ireland, right?”

“I’m American, but sure…”

Identity is important, and identity in sub-Saharan Africa is largely determined by one’s ‘ancestors.’ My ancestors are from many places, and my name gives those places away, but only to a degree. In The Gambia, one’s name gives away their identity in a much greater way. You can almost always tell which ethnicity a person belongs to by way of their name, and that determines which language they grew up speaking.

In a place that is working itself out of the ruins of the British Empire, one gets the sense that the architects of the New Gambia do not welcome input from British authorities. More than one person asked me whether I have ancestry in the United Kingdom.

This juxtaposes other comments from members of the Constitutional Review Commission: “We don’t see that [race].” In The Gambia, there are no races, but there were British people. As the country seeks to reinvent itself, the new mothers and fathers of the country intend to assert their “Gambianness.” How that manifests, and to what extent it will be a reflection of the collective will of Gambians, remains to be seen.

Meroua Zouai:
After spending a week researching transitional justice in the Gambia, I left the smiling coast of Africa with the very same question I entered with: “What does transitional justice mean for the general public?”

With prior experience conducting fieldwork and research across many countries in Africa, South Asia and the Middle East, I often find that the narrative of the everyday citizen is mystified and lost in a bureaucratic transit of institutional mechanisms and high-level-academic discourse — all of which are far removed from their lived realities.

Theorizing principles of justice on what is assumed to be the best way moving forward following a dictatorship, is starkly different from implementing solutions intended to bring closure to the people. When processes, as in the transitional justice one in the Gambia, are centralized and start to concentrate on the voices of privileged individuals, individuals with renowned careers who’ve successfully earned their seat at the table — some of the most vulnerable voices inevitably remain sidelined, silenced, and forgotten.

What is the objective? Some may say democracy, while others are simply struggling to have their humanity realized under the eyes of the law and society. The lack of substantive transitional justice is in part due to the hierarchal nature of the system, a system historically tainted with a gross disregard for human dignity, and is currently evolving into one that emphasizes fruitful discussions on justice and rule of law whilst masking the nationwide disunity, enforcement vacuums, and displacement of local narratives.

And yet, I ask myself again: “What does transitional justice mean? For the women faulted for being sexually exploited in undefinable ways, for the queer individual being forced to marry, for the youth who remain unemployed on the outskirts of the village?” The Gambians who recognize the discriminatory and disparate impact this “transitional justice” has on vulnerable communities, who raise their voices in protest despite all institutional barriers, are not only inspiring but a testament to a people’s led transitional justice that the smiling coast of Africa so desperately needs…


View the Full report, “Access to Justice in the Gambia” here.

Updated November 22, 2019 from a September 27, 2019 version.