The case was filed on behalf of Musa Saidykhan, formerly editor-in-chief of the banned Independent Newspaper in Gambia who alleges that he was tortured by the agents the Gambian National Intelligence Agency (NIA). The NIA is the most dreaded squad of goons shoring up Yahya Jammeh, the tyrannical and eccentric dictator who has ruled The Gambia with an iron fist since overthrowing its civilian government in 1994. The suit also claims that while in detention, Saidykhan was tortured until he became unconscious. He has scars on several parts of his body, and, according to other reports, the goons broke his right hand in the course of his ordeal.
Many Gambians-as well as citizens of other West African countries, including Nigeria-have ended up in Jammeh's gulag, but they did not live to tell about it; or are too scared, or too poor to do anything about their violations. Like many opponents of Jammeh who face threats to their lives from this efficient dictator, Saidykhan fled into neighbouring Senegal immediately after his release, where he received treatment. He now lives in exile in the United States from where he and his Senegalese doctor will provide the court with material evidence to substantiate his allegations of torture against the agents of the Gambian NIA.
This is not Jammeh's first encounter with the regional Court. In a landmark decision delivered in 2008, the same ECOWAS Court declared the arrest and detention of another Gambian, Ebrima Manneh, illegal and ordered the Gambian authorities to immediately release him. The government had claimed that Manneh was never in their custody. The court, however, disagreed and awarded US$ 100,000 damages in favour of Manneh against the Gambian government. Since 2005, the Court has had competence to rule on human rights violations through an individual complaint procedure. Particularly noteworthy is that local remedies do not need to have been exhausted before cases are brought to the ECOWAS Court. So, every victim of a human rights violation can directly appeal to the court even while the case is subject to a national proceeding.
In October 2007, the same Court found the government of Niger Republic guilty of failing to protect Hadijatou Mani from slavery in a landmark case that has put many governments on notice. The court found in favour of the woman who said she was sold for about US$500 at age 12 and made to work for 10 years. The judge ordered the government-which claimed it had done all it could to eradicate slavery-to pay Mani 10 million CFA francs (US$19,750). Mani's master freed her in 2005 and gave her a 'liberation certificate,' but when she left him and tried to marry another man, her 'master' claimed they were married. A local court found in favour of Mani and she went ahead with her new wedding, but this was then overturned on appeal and she was sentenced to six months in prison for bigamy, at which point she took her case to the ECOWAS Court of Justice with the assistance of Anti-Slavery International, an NGO.
Nigeria's bad governance was next. In November 2009, following a suit instituted by the Socio-Economic Rights and Accountability Project (SERAP) against the Federal Government and the Universal Basic Education Commission (UBEC), the Court declared that all Nigerians are entitled to education as an enforceable legal and human right. It dismissed all objections brought by the Federal Government, through the UBEC, that education is 'a mere directive policy of the government and not a legal entitlement of the citizens.'
Whatever the outcome of Saidykhan's case, authoritarian or corrupt regimes must read the handwriting on the wall. You can bet, however, that Jammeh will ignore the Court's ruling again if he loses. After all, there is no mechanism to ensure compliance by governments found in violation of the very rights and treaties they gleefully sign at their over-rated summits. But, let's not be deceived about this temporary limitation; or by Jammeh's cowardly toughness. Following the filing of the latest suit, Jammeh's government initiated an amendment to the 2005 protocol that permits citizens to bring suits against Member States that violate their rights.
On October 6, 2009, the Council of Justice Ministers of ECOWAS ignored Jammeh's grandiosity, and unanimously endorsed the decision of the Committee of Legal Experts to maintain the protocol establishing the jurisdiction of and access to the ECOWAS by ordinary community citizens.
Leaders and individuals who act with impunity and violate human rights of citizens are actually running out of a hiding place. Charles Taylor of Liberia, Augusto Pinochet of Chile, Hissen Habre of Chad, Omar el-Bashiar of Sudan, Laurent Nkunda, Slobadan Milosovic, to name a few examples, were probably as deluded as Jammeh about their sovereign immunity. The ECOWAS Court deserves our support and encouragement as they break new grounds in guaranteeing rights that governments have failed to give us. It's The Gambia today; you may need this Court some day.
