Chief Justice Hassan Jallow

I have had cause to disagree with some decisions of the Supreme Court of the Gambia but because the Justices are human, they are susceptible to make mistakes. But nonetheless, that remains the law.

In an ipsissima verba (Latin for the very words) of late Justice Chukwudifu Oputa, of the Supreme Court of Nigeria then called the Socrates of the Supreme Court argued: “We are final not because we are infallible, rather we are infallible because we are final”.

The Supreme Court’s landmark decision regarding judicial review on Sedition and False news law in the Gambia, unanimously and unequivocally validated the colonial-era law effectively ‘criminalizing criticism of the President or ‘insulting the President’ as Constitutional.

This is retrogressive, backward, unworthy and primitive forces that seek to hold us back and imprison our freedom to hold those in power accountable for their actions. A criminal code or penal code provisions on sedition contravened the right to freedom of expression guaranteed by the Constitution.

Sedition is where a person utters or publishes statements aimed at bringing hatred, contempt or disaffection against the President, the government or the Judiciary. The sections on sedition are inconsistent with the Constitution and are therefore null and void.

Sovereign people should not make Presidents as demi-god. There are no special laws for the president. “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor,” Theodore Roosevelt.

Every citizen is equal before the law unless otherwise. A law granting special protection against defamation or insult of public officials is an anachronism that cannot be justified in a modern democracy. It is now well established under international law that such officials should tolerate more, rather than less, criticism than ordinary citizens. Laws granting them higher protection must be abolished.

Protecting Presidents or public officials from criticism solely because of their function or status cannot be reconciled with modern democracy and violates both international conventions and freedom of expression standards.

By criminalizing ‘insulting the President’ will threaten even newspaper cartoonists for their satirical art work. Every civilized society’s constitution guarantees freedom of expression which includes criticizing the President.

For every intent and purposes, these “insult” laws have become moribund worldwide and represents the old-school of thought – that a King cannot err! That the crown is infallible!

African governments need to abolish all anachronistic provisions of freedom of expression and speech laws and bring its legislation in compliance with international freedom of expression standards.

Through the legal process these laws such as the one on false news and that of sedition have been effectively validated by the Gambian Constitutional Court as constitutional but that has only given the government more room to be more punitive towards the public and journalists who are independent, free and critical to the president and the government.

Americans take extraordinary pride in freedom of speech, individual liberty, ideologies, religions and (especially) the government are all fair game for criticism, thanks to the First Amendment of the Constitution, which states that Congress shall make no law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Freedom of speech and expression is by no means universal today in the Gambia. There are instances where speaking your mind will land you in jail or worse.

Sadly, America was once among those nations like the Gambia today. On July 14, 1798, President John Adams signed into law the Sedition Act, effectively criminalizing criticism of the government. While the law is clearly in direct violation of the First Amendment, the practice of judicial review whereby the Supreme Court strikes down unconstitutional laws, had not yet been established.

The law was the subject of enormous controversy in its day, and its unpopularity helped oust from power the Federalists, who had passed the egregious legislation to protect themselves from criticism.

Sedition, defined as incitement to violence or disorder, is a legislation meant to suppress the voice of the Gambian people and has no place in a 21st century democracy. The Supreme Court, being the protector of the fundamental rights of the citizens, needs to declare the law of sedition unconstitutional. The Supreme Court itself did not apply these principles to the speech and freedom of expression.

Sedition is an archaic law meant to suppress the voice of the Gambian people. That is why the Gambian law on sedition is different from the English law. Despite the strict construction adopted by the Gambia government, the law enforcement agencies have always used it against journalists, religious leaders, intellectuals, et al for criticizing the President, the government and the judiciary of the government of Yahya Jammeh and the democratic government of Adama Barrow continue to use it for the very purpose for which the colonial government used it.

By Alagi Yorro Jallow

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