Deyda Hydara, a prominent Gambian journalist and editor, was murdered on 16 December 2004, when driving home after having celebrated 13 years of The Point newspaper. He had long been a critic of the government and had been warned by the authorities for taking a hostile tone against the government in his column “Good Morning Mr. President”.
Now the Community Court of Justice of the Economic Community of West African States (ECOWAS) has delivered a stinging rebuke against the Gambian National Intelligence Agency (NIA) for having failed to properly investigate the murder of Mr. Hydara. An initial investigation started by the police was taken over by the NIA on the orders of President Yahya Jammeh. The evidence suggested that this investigation only took 18 days, after which the NIA produced just an interim report.
In one of their final judgments before retiring from the regional bench, Justices Hansine Donli, Awa Nana Daboya, and Anthony Benin concluded that the NIA was not impartial, as they had been accused of complicity in the assassination: “one cannot investigate a crime when it is itself the accused”. The court found, in a ruling issued on June 10, that there was a climate of impunity in the Gambia, “stifling freedom of expression.”
The ruling was a victory for Deyda Hydara's youngest son, Deyda Hydara Jr, who brought a challenge on behalf of the family to the ECOWAS Community Court of Justice, joined by the African chapter of International Federation of Journalists (IFJ-Africa). The process involved legal submissions on behalf of the claimants and the government of the Gambia, as well as the live testimony of two witnesses.
Deyda Hydara Jr. gave evidence to the court in February 2014, describing his relationship with his father, and how he assisted at the offices of The Point. When they returned from the newspaper at night they were often followed by unmarked cars; the general consensus was that these were the police or the NIA. His father had spoken to his son about how there were those in government that did not like what he wrote. Deyda Jr. would have been in the car with his father on the night of the murder, but at the last minute had not gone to the party at The Point. He described the impact of the assassination on his family, many of whom had to seek asylum abroad. The family had not been informed of the progress of the investigation, and were not given the autopsy report, despite numerous requests. After a comfortable life in the Gambia, they were forced to live in reduced circumstances in the UK, France, and the United States. He himself had left the country after an incident where a policemen said to him “you should be careful unless you want the same thing that happened to your father to happen to you”.
The government of the Gambia called Lamine Saine to give evidence. He was in charge of the NIA investigation, and is now a member of the national assembly, nominated by President Jammeh. He had worked for the security services in the Gambia for almost 40 years. He claimed that the investigation was conducted promptly and effectively, and denied that there was a culture of impunity in the Gambia.
On cross-examination, Saine admitted that he in fact knew the late Deyda Hydara very well. While serving as a senior officer of the NIA, he had regularly visited the offices of the Point where Hydara had been helping him edit a novel that he had been writing, entitled Ripped Apart. However, he had not been at the Point on the day of the assassination. After the police investigation had become “hindered”, the case had been transferred to the NIA by President Jammeh himself, and the final report would go to him.
He admitted that the last statement had been taken only three weeks after the investigation was opened, and that they had failed to carry out any ballistic tests on the bullets recovered and on firearms recovered from suspects. He accepted that he had an obligation to follow up any leads that were brought to his attention, but he had not read the two reports on the murder by Reporters sans Frontières. He had seen news articles suggesting state collusion in the murder, but did not investigate that possibility as it was futile: “who would you invite to face the … investigative panel?” he asked.
The ECOWAS judges accepted the claims of the Hydara family, finding that the government had failed to conduct a proper investigation and had allowed there to be a culture of impunity in the Gambia.
Deyda Hydara’s death violated the right to life, which “imposes an obligation on States to investigate all acts of crime and bring perpetrators to book”. While the initial police investigation had been taken over by the NIA, who had issued a short interim report, “no other investigations have been carried out”. The court was particularly critical of the failure to carry out ballistics tests on the bullets recovered from the victims, and from firearms belonging to suspects, which the court considered to be “baffling”, concluding that “without a ballistic examination one could not conclude that a proper investigation had been carried out”, and that “every gun recovered from every suspect” should have been subjected to such tests. The police had failed to promptly interview the two witnesses who were in the car at the time of the assassination, save for a bungled attempt to visit them in hospital, for which the officers had not sought permission nor brought any identification with them. The court could not see why the police would refuse to disclose their identity, and refuse a harmless request for an official communication, if their motive had really been to question the witnesses: “It seems to us these events must have scared the eye witnesses to flee the country and it was a reasonable and wise precaution to take in the circumstances”.
There were accusations of state collusion in the killing. One of the witnesses had told the police that some personnel from the NIA had followed her to Senegal in order to eliminate her. For the court, this cast into doubt the impartiality of the investigation:
“Justice would not seem to have been done in this case as the very body which was accused of complicity was the very one charged with the responsibility to investigate. The NIA was not an impartial body in the circumstances. The duty to conduct investigations imposed on a State involves the duty to be impartial, fair and just. One cannot be a judge in his own cause, so too one cannot investigate a crime when it is itself the accused”.
It was clear from the evidence that little had been done to find the truth. The court concluded that “since February 2005 no attempt has been made to conduct any meaningful investigations into the murder of the deceased”.
Climate of Impunity
The ECOWAS treaty commits member states to “ensure respect for the rights of journalists”. The court interpreted this to mean that “a State will be in breach of international law and treaty obligations if it fails to protect media practitioners including those critical of the regime. For freedom of expression also includes the freedom to criticize the government and it functionaries, subject to limitations imposed by the domestic laws”.
The court referred to two other cases against the Gambia (decided by the same three judges) that “involved journalists who suffered at the hands of State operatives in the course of performing their legitimate functions”. In 2008, the Court found that the editor of the Daily Observer, Chief Ebrimah Manneh, was arrested by “two security operatives of the Republic of The Gambia” on 11 July 2006 at the newspaper’s premises, one of whom was Corporal Sey, from the NIA, and that Chief Manneh was subsequently disappeared. In 2010, the court found that Musa Saidykhan, former editor of The Independent, was arrested by the NIA and held unlawfully and incommunicado for 22 days, during which time he was “tortured by the defendant’s security agents,” partly as he had raised the Hydara case with Thabo Mbeki.
In addition, the claimants had cited specific instances where state operatives had been involved in misdeeds against journalists but no action had been taken against them, but no evidence in rebuttal had been produced by the Gambia. The court concluded that where attacks by state operatives against journalists are not investigated, let alone prosecuted, the State will be breaching its obligation to assure a safe and conducive atmosphere for the practice of journalism: “such impunity has the effect of denying journalists the right to function, thus stifling freedom of expression”.
The Court had been invited to consider the failure to investigate, and not the actual killing of Deyda Hydara. The court agreed with the claimants that as there had been no investigation, there was insufficient evidence as to who carried out the murder, and it was not for them to attribute criminal liability. The court awarded damages of $50,000 for the failure to properly investigate the assassination, as requested by the claimants, matching the sums awarded by other regional human rights tribunals for similar failures to investigate.
In recent years, the Gambia has begun to take the ECOWAS Court more seriously. In the earlier cases of Chief Manneh and Musa Saidykhan the government did not even participate in the proceedings, essentially ignoring the court. In the Hydara case, the government actively engaged in the process, even going so far as to send the Attorney-General herself to argue the case. This recognition by the Gambia that the court is an integral part of the ECOWAS legal order is an important development. It is to be hoped that the authorities will also recognise the judgment and ensure that it is promptly implemented.