Lead Counsel, Essa M. Faal

By: Yankuba Jallow

Essa M. Faal the lead Counsel for the TRRC has on Tuesday 23rd April told the press that the Commission is not a witch-hunting exercise.

“The TRRC is not a witch-hunting exercise. It is a victim-centred process aimed at establishing the truth about the violations and abuses of human rights. It is also not a criminal trial. It is for this reason that the Commission endeavours to remove many of the features that would liken the process to a court,” Faal said.

Faal said recently the Commission (TRRC) has received a number of requests from interested Gambians for clarification or explanations of some of the procedural arrangements of the TRRC. He said the Rules of Procedure of the TRRC dated 7th January 2019 are still provisional and as such have not yet been published.

“This is neither a witch-hunting exercise nor a trial. We try to elicit the truth from witnesses in a very respectful manner. However, where witnesses are uncooperative, misleading, or play games, we have an obligation to use the repertoire of skills in our toolbox to tackle the situation. If we don’t, more witnesses will come and treat the Commission with contempt and ridicule. We would not allow anyone to get away with that,” Faal explained.

He further explained that the objective and mandate of the Truth, Reconciliation and Reparations Commission (TRRC) as indicated under section 13 of its Act includes; to create an impartial historical record of the violations and abuses of human rights that occurred in The Gambia during the 22 years of the Jammeh Government from 22nd July 1994 to January 2017; promote healing and reconciliation; respond to the needs of the victim; address impunity; prevent a repeat of the violations and abuses suffered by making recommendations for the establishment of appropriate preventive mechanisms including institutional and legal reform; establish and make known the fate and whereabouts of disappeared victims; provide victims opportunity to relate their own accounts of the violations and abuses suffered; and grant reparations to victims in appropriate cases.

Counsel Faal said the success of the process depends to a large extent on the ability of the Commission to get the truth of what happened.

“In this regard, success would be easily attained if witnesses cooperate by providing truthful accounts. False or misleading testimony would only derail the Commission and lead it to error. It is for this reason that the Commission encourages all witnesses including perpetrators to speak the truth and nothing but the truth,” Faal detailed.

He further explained that Section 19 of the TRRC Act provides that the Commission may recommend the granting of amnesty under certain terms and conditions to a perpetrator who makes full disclosure of his or her involvement in human rights violations and expresses remorse for his or her acts or conduct. He said section 15 (2) makes it a criminal offence to intentionally provide misleading or false information to the Commission.

“Thus, premium or great value is attached to providing truthful information and a sanction for providing false information. The system is one of carrots and sticks,” Faal said.

Why Are Witnesses Questioned Differently

Faal said the mode of questioning of a witness depends on several factors, including the nature and type of hearing and also the type and legal qualification of the witness.

“All witnesses who appear before the Commission participate in pre-hearing meetings with members of the legal team as well as psycho-social support staff as required. The Legal Team assess the level of cooperation and credibility of witnesses. As a result of the pre-hearing meetings, some uncooperative witnesses become cooperative. However, a limited number of witnesses, in spite of the information put to them, are willing to appear but refuse to be truthful on certain issues,” he said.

Lawyer Faal detailed that the TRRC has three types of hearings which are victims hearing, investigative hearing and institutional hearing. He said the victim hearings are those hearings in which the person testifying is a victim and talking about her/his own victimization and in that hearing, the mode of questioning is often with neutral or open questions.

“Among the reasons for this approach are to avoid re-traumatisation, avoid insensitivity to the victims’ plight, empower the witness and provide a platform for the victim to give an account of her/his own victimization as mandated by the Act. For victim hearings, there is hardly ever any need to robustly question or cross-examine the victim,” he narrated.

With regards to investigative or institutional hearings, Faal said there is no direct victim.

“The witnesses in these types of hearings are normal witnesses of fact or persons adversely mentioned,” Faal said.

He said under the Provisional Rules of Procedure of the TRRC, normal witnesses of fact are questioned using the normal open questions format.

Counsel Faal depicted: “There is hardly any need to confront the witness unless there is a reason to believe that the witness is not forthcoming or providing false or misleading information. In such instances, the witness may be cross-examined. With regards to persons adversely mentioned, they too could be questioned using the format of the open questions. Just like normal witnesses, the mode of questioning may change depending on the posture of the witness. Where the witness is evasive, uncooperative, misleading or hostile, the witness may be questioned more robustly or even cross-examined in order to elicit the truth.”

He said Counsel has an obligation based on the rules of fairness to put the case or allegations to the adversely mentioned person and give her/him chance to answer.

“Thus, questioning an uncooperative adversely mentioned person would in all likelihood be more robust and more confrontational. It is the duty of counsel to test the evidence provided by witnesses,” Faal stated.

About Lawyer’s Appearance before the TRRC

He said the TRRC is not a trial and such processes that make it look like a trial are discouraged. He said most truth and reconciliations commissions do not allow lawyers participation but in The Gambian model, there are overarching rules of natural justice and procedural fairness. He said the TRRC procedure mandates persons adversely mentioned to appear with and be assisted by a Lawyer with limited rights of audience.

TRRC Reacts to Statements of Prisons Department

Faal said the TRRC visited the Jeshwang and Janjanbureh Prisons pursuant to its power to visit any place in the country, including without giving prior notice in accordance with Section 15 (1) (b) of the TRRC Act. Faal said after the visits, the PRO of the Prison Service made a press conference in which he lambasted the Commission for what he termed an “unethical and uncalled for” visit.

“On behalf of the Commission, I state that the language of the PRO was unnecessarily harsh and disrespectful. Use of such strong and disrespectful language should not be allowed in official discourse. Our Country has gone through a lot in the not too distant past where public officials are not called out to be accountable for their deeds and where others with a difference in opinion are treated with contempt and ridiculed. Such behaviour from public officials is unacceptable. The TRRC refused to respond at the time when the unwarranted statements were made just to diffuse the situation and avoid unnecessary escalation. It certainly would have been more helpful if the Prison Service had called the authorities in the Commission (TRRC) to discuss their complaint,” Faal concluded.

Foroyaa would publish the question and answer session between the Lead Counsel and the press in our subsequent publications.

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