The Tribune

By FREDERICK SMITH, QC

Fleeing his native Gambia in fear of extra-judicial execution, Ousman Bojang accepted a friend’s invitation to take refuge in The Bahamas. Expecting safety and protection in accordance with our international obligations, he was met instead with arbitrary detention, false imprisonment, inhumane treatment and shocking conditions. Then he was released, only to be forced into poverty by a cruel and spiteful government.

As Bojang’s quest for justice finally approaches resolution, this 40-year-old father-of-two, formerly a truck driver and engineering student, is hunkered down in a friend’s derelict car, where he has lived for the past two years in an increasingly desperate struggle to survive. Unable to support himself following his court ordered release in 2017, because the government has refused to give him a work permit.

Bojang’s ordeal began in 2015 during a “very difficult” political period in his country. As a youth leader for the opposition, the United Democratic Party (UDP), he was falsely arrested for organising political meetings. He was held for three days without charge before being released. But, then came a tip that he would soon be rearrested and possibly killed.

It is apparently common for the authorities in Gambia to release political prisoners publicly, then recapture and “disappear” them quietly while claiming they have gone into hiding. The authorities also falsely accused Bojang of being a homosexual, a crime in his country that carries a minimum sentence of 14 years and makes one a target of violence and even death at the hands of fellow citizens.

He had no choice but to flee, leaving his young family behind, first to Dakar in Senegal and then, upon the invitation of a friend, to The Bahamas where he entered - legally - on a 14-day visa on December 5, 2015. After several attempts to find a UN High Commissioner and apply for political asylum, he presented himself to The Bahamas Immigration Department, but was told they were too busy during the holiday season to help him.

When, after several attempts, he finally got before an immigration officer on December 30 and explained he was in The Bahamas to apply for asylum as he feared for his life in Gambia, instead of being offered help as mandated by international law, he was summarily taken into custody without explanation.

Held for 531 days, between December 30, 2015 and June 16, 2017 in “terrible and inhuman conditions” at both Fox Hill Prison and the Carmichael Road Detention Centre, Bojang was never charged with anything, never convicted or even brought before a court of law.

In sworn evidence, he told of the horrifying treatment and conditions to which he was subjected while in custody. Overcrowding at the Detention Centre was endemic, with his dorm occupied by 300 to 400 people and not enough beds to accommodate them. “For the first two weeks I slept on the floor until I found a dirty old mattress which I used after that,” he said.

Bojang had little to eat, was forced to drink stinking tap water and had to endure terrifying nighttime drills. “Every night we were awakened at around midnight by the Defence Force officers and we all had to stand outside, sometimes for hours, sometimes all night. The defence force officers didn’t care whether it was cold or not,” he said.

Then, the government sought to rid itself of this asylum seeker in the most shocking and cynical way. On May 25, 2016 they tried to forcibly return him to Gambia – back to the very country where he had been persecuted and from which he fled in fear. They did this without a Deportation Order, even though required by law. Instead, they tried to trick Bojang, falsely claiming his family had sent him a ticket home.

The truth is that Immigration hadn’t even bothered to secure a ticket for his first leg of his journey, much less a connecting flight to Africa. Instead they just bundled him on a plane to Havana. When the Cuban authorities realised this, they sent him immediately back to The Bahamas.

He was returned to the Carmichael Detention Centre, but soon moved to Fox Hill Prison, as the authorities said a hurricane was coming. “The first night I was placed in a small balcony room with no beds with 14 other men. The room had no walls. It was like a balcony with iron bars around. The area was flooded so we had nowhere to sleep. The following night I was placed in a small cell approximately 3x8 square feet with over 20 other prisoners. There were no beds, mattress or blankets. We had to sleep on the concrete floor. The cell was hot and had no windows.

“We had two buckets in the cell, one for urine and one for faeces. All 20 of us had to share the two buckets to defecate and urinate. The buckets remained in the cell until the were taken out the following day. I could not eat as the stench in the cell was so bad that it was impossible for me to eat in that condition.”

He was kept in prison for four weeks before being sent back to the Detention Centre – back to the hot, overcrowded, stinking dorms, clogged toilets and showers filled with up to a foot of dirty water.

On June 16, 2017, after his lawyers applied for Habeas Corpus Bojang was finally taken to court. He was given no notice of where he was being taken or why, and after being “manhandled and dragged to a car like a criminal” he was shackled to prisoners who he later found out were charged with murder.

Chief Justice Isaacs determined he had been wrongfully imprisoned and granted his immediate release pending a response from the United Nations High Commissioner for Refugees (UNHCR) to his application for political asylum. He was not immediately released, but rather unlawfully detained once again, re-shackled to accused murderers, and brought to a police station to spend the next four hours in a cell with nothing to eat or drink.

In January 2018, Bojang applied for a work permit to sustain himself while in The Bahamas and paid the relevant fee. They government has refused to even acknowledge his application for three years, leaving him penniless and desperate.

Ever since he was freed, Bojang has been seeking justice for the violation of his constitutional rights, but this has been delayed and resisted at every turn by the Attorney General’s office. When the matter finally came to trial on November 17, 2020 the only position put forward by the government was to flatly deny that he was ever falsely imprisoned and assert his treatment was humane. They have provided no documents concerning his detention, despite the court ordering discovery..

The Supreme Court concluded trial on November 18, and is considering Bojang’s request for damages for false imprisonment and inhumane treatment. On 5 August 2020, Bojang learned that the UNHCR had upheld his refugee status, giving him the right to be protected from forcible return to the Gambia until such time as he is able to return safely and with dignity.

The Bahamas became a signatory of the United Nations Convention and Protocol Relating to the Status of Refugees in 1993. The main thrust of this agreement is the principle of non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a core rule of customary international law.

On December 10, 2018, the Bahamas became one of the 153 signatories to the Global Compact for Migration (GCM), which emphasises the safety, dignity, and human rights and fundamental freedoms of all migrants, regardless of their migratory status.

The government claims on its website that it “seeks to adhere” to these agreements, adding that in the identification and protection of asylum seekers, the Immigration Department maintains “a transparent process, which conforms to international standards”.

To say that The Bahamas violated both its own Constitution and its international obligations with regard to Bojang would be an understatement of epic proportions. In his and so many other cases related to migration, the government routinely tramples upon its responsibilities, acting as if basic human rights and international law simply do not exist. The harrowing tale of his treatment echos that of countless poor souls who have the bad luck to end up in the hands of Bahamian authorities.

Meanwhile, at the same time that this government continues to abuse Bojang, it is bringing legislation to codify the asylum seeking process into law, whereby anyone “unable or unwilling to return to his country of origin owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or because he holds a particular political opinion” is to be granted asylum and have the right to live and work in The Bahamas. No more and no less than Ousmane Bojang asked for.

His ordeal is about far more than immigration laws or UN standards; it speaks to who we are as a nation. To whether or not we have a fundamental regard for fairness, justice and basic human decency. In essence, laws are only as good as a society’s willingness to enforce them.