By a Concerned Global Citizen
William Ruto, one of Essa Faal’s former clients at the International Criminal Court (ICC), was accused of orchestrating the killing of some 1,200 people and the forced displacement of 600,000 from their homes in the weeks of violence following the disputed December 2007 Kenyan election. When the prosecutors adduced evidence to support their allegations, Essa Faal and his colleagues accused the prosecutors of building their case on “a conspiracy of lies”. Faal and his colleagues added that “there is a rotten underbelly of this case that the prosecutor has swallowed hook, line and sinker, indifferent to the truth, all too eager to latch on to any… story that somehow ticks the boxes that we have to tick [to support charges],” Why is the aforementioned relevant? Essa Faal’s prior works make us believe that he is a man who believes in the principle of “innocent until proven guilty.” However, his recent conduct towards a witness by the name Imam Fatty at the Truth Reconciliation and Reparation Commission (TRRC) of The Gambia was vile, narcissistic, and unnecessarily provocative. His treatment of Imam Fatty was inconsistent with everything the principle of innocent until proven guilty stand for.
Essa Faal’s conduct towards Imam Fatty has elements of illegality and were unethical. Mr. Faal acted in excess of the powers granted to him by the TRRC Act. The TRRC Act does not mandate him, in anyway, to determine what is right and wrong; who is guilty or innocent; and which witness is credible or lying. Neither does it empower him to express his opinion during the proceedings as to what is right and wrong; who is guilty or innocent; and which witness is credible or lying. His role as Lead Counsel to the TRRC is limited to asking questions that would adduce information/evidence that the commissioners could use during their final deliberations in determining what is right and wrong; who is guilty or innocent; and which witness is credible or lying. It is the function of the commission not the lead counsel to determine what is right and wrong; who is guilty or innocent; and which witness is credible or lying. In doing so the Commission must ensure that its determination is “based on factual and objective information and evidence collected, received by it or placed at its disposal.” And all decisions of the Commission “shall be taken on the basis of a majority vote and the person chairing shall have a casting vote”. Therefore, Mr. Faal has no authority either expressed or implied to make any determination and thus, portrayed himself in a manner inconsistent with the Act establishing the TRRC, thereby, abused his authority.
In addition, Mr. Faal’s conduct towards Imam Fatty is what is expected of a prosecutor or a defense counsel when cross-examining a witness called by the opposing party. Even in such environment, his constant unnecessary interjections would be objected to by the opposing Counsel. He was deliberately interjecting the witness, refusing to let him give his response, and forcing him to give a NO OR YES answer without context in the name of TIME. Is expediency more important than Truth, Reconciliation, and Justice? Certainly not. Mr. Faal’s methodology was especially problematic because, witnesses that accused Imam Fatty were given all the time they needed to present their accusation. Why wasn’t Imam Fatty accorded same treatment? Is this in line with the aims and objectives of the TRRC? The answer is obviously NO. If the accuser has been given time to present his/her case the accused must be accorded same opportunity. That’s the minimum expected of any person working at the TRRC.
The TRRC was set up to “investigate and establish a historical record of the nature, causes and extent of violations and abuses of human rights committed during the period July1994 to January 2017”, a period regarded as darkest in the history of The Gambia. The goal of the TRRC is “to have an accurate and impartial historical record of the violations” that occurred in that “darkest” period. Every person who is associated with the commission must always conduct himself/herself in a manner consistent with the objectives of the TRRC. Anything that would bring the work of the TRRC into disrepute must be avoided by all means necessary. Every employee of the TRRC, especially the Lead Counsel, should have this basic understanding. It is, therefore, unacceptable and deeply troubling to see Mr. Faal, during his questioning of Imam Fatty, conduct himself in a manner contrary to everything the commission was set up for. He has singlehandedly tarnished the credibility and impartiality of an institution so vital to the history of The Gambia. If he has any iota of ethics and morals in him, he would do the honorable thing—apologize to the Gambian people and resigned from the position of a Lead Counsel at the TRRC. Mr. Faal was partial and unfair to Imam Fatty, a violation of Section 22 of the TRRC Act which provides that “The Commission shall be impartial and fair in the conduct of an investigation and its functions.”
Mr. Faal’s conduct was unethical for two reasons. First, he seems to be conflicted. He has been part of a delegation that visited the Office of the President on behalf of the Ahmaddiya Muslim Sect. The same sect that accused Imam Fatty of inciting hatred and violence towards them. Also, he quoted a newspaper belonging to the same sect as if it were a credible independent news organization during his questioning of Imam Fatty. When Imam Fatty pointed to his dishonesty, he became defensive and said “I am citing a newspaper” but the truth is, he was citing an Ahmadiyyan Newspaper. Because he seems to have a special spot for that sect, therefore, he should have recused himself from questioning the witness. The TRRC Act provides that any member of the Commission who has an interest, in any complaint made to the Commission, shall not take part in any hearing or decision of the Commission relating to the complaint. Because Essa seems to have an interest in the Ahmadiyyan Sect’s complaint against Imam Fatty, he should not have participated in the hearing at all. Some people claimed that Mr. Faal is not an Ahmadiyya. Well, he doesn’t have to be a member of the sect for the presence of conflict. Other things such as being their representative would suffice. The TRRC has at least three other counsel who could have questioned Imam Fatty. Mr. Faal refused to recuse himself even though the Act establishing the TRRC clearly provides for recusal when there is seemingly conflict of interest. He could not resist the temptation of expressing support for his people and using a state sponsored avenue to spew his venomous nonsense.
Second, Mr. Faal was citing sources, the veracity of which were in doubt. He would never cite those sources in any judicial or quasi-judicial proceedings for any client or even adduced that as part of his evidence. That being the case, why would he use such sources as if they were FACTS? That was dishonest and misleading. This is the same man who once argued vigorously against credible newspaper reports on behalf of a client who paid him thousands of dollars that the prosecutor’s use of such reports was “all too eager to latch on to any… story that somehow ticks the boxes that we have to tick [to support charges].” What a hypocrite!
Finally, he used tax payer money to rant against other people who are of no interest to the commission. His comments on Dr. Zakir Naik are his personal views. They are not facts and we don’t care what he thinks of Dr. Naik. He could call a press conference and rant about him all he wants. But using the tax payer-money platform to vent such disgraceful and unfounded allegation is unbecoming of him or any lawyer.
Some people have been jumping to Mr. Faal’s defense. Most of them argued that he was just doing his job when he defended people accused of committing the most heinous crimes possible. This sort of defense has been rebutted by leading scholars for example, Gerald Postema, in his article the Moral Responsibility in Professional Ethics stated thus:
Lawyers, like other professionals, acknowledge gravely that they shoulder special responsibilities, and believe that they should conform to “higher” ethical standards than laypersons. Yet, lawyers also claim special warrant for engaging in some activities which, were they performed by others, would be likely to draw moral censure.Skeptical of this claim to special license, Macaulav asked “‘[w]hether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without these appendages, he would think it wicked and infamous to do for an empire.” This conflict may trouble the layperson, but for the lawyer who must come to grips with his professional responsibilities it is especially problematic.
Professor Simon, Professor of Law at Stanford University, also submitted that:
LAWYERS should have ethical discretion to refuse to assist in the pursuit of legally permissible courses of action and in the assertion of potentially enforceable legal claims. This discretion involves not a personal privilege of arbitrary decision, but a professional duty of reflective judgment. . . the basic consideration should be whether assisting the client would further justice.
Essa Faal’s record of defending people accused of committing heinous crimes should have served him well to view every witness who appears before the TRRC, regardless of the grave accusations levelled against them, is innocent until proven guilty. His conduct towards Imam Fatty was far from that quintessential practice. Maybe he only feels that way when money is put in his pocket or when his interest is at stake.