The world has changed and is changing. It has become smaller, especially how Information and Communication Technology( ICT) can fast track development and revolutionised significantly in the excellent area of communication.
The world of Information and Communications Technology (ICT) has grown faster and more direct. Thanks to the information superhighway, Internet, people now have direct access to a platform that allows them to communicate with friends and strangers all at once, at the literal click of a button.
Freedom of speech and expression is a hallmark of democracy. Its unfettered enjoyment contributes to functional democracy that encourages citizen participation for good governance and accountability.
Every citizen is supposed to be protected. By criminalising sedition and libel, the government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free marketplace of ideas – the Internet.
Before this law, it is ironic that the United Nations even cited the Gambia for not interfering with the Internet. The law is a testament to the reality that despite the overwhelming mandate given to the government, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the marketplace of ideas.
A lawyer I count as a friend once reminded me that provisions of the law are explicit, that one may not infer other conditions no matter how implicit the law may be.
Sedition is a draconian piece of law conceived and used by the colonial masters to deny oppressed peoples from demanding their freedom and holding them to account. This archaic law has been weaponised to oppress the indigenous people. It has continued to be weaponised by two presidents born at independence against their people.
Both Presidents Jammeh and Barrow further expanded this colonial law to ensure that no one could speak his or her opinion against the President. For example, Section 51(1)(a) in the Criminal Code defines Seditious Intention as any intention that “bring into hatred or contempt or to excite disaffection against the person of the President, or the Government of The Gambia as by law established.”
Sedition is where a person utters or publishes statements to bring hatred, contempt, or disaffection against the President, the Government, or the Judiciary. This law on sedition is inconsistent with the Constitution, and these are therefore null and void.
This law on sedition had narrowed the constitutional rights of journalists and the public at large. Sedition in the Criminal Code, Sections 41 (publishing false news with intent to cause fear or alarm to the public), 51 (seditious intention), and 52 (false publication). These are provisions to criminalise any form of expression which the government thinks is insulting to the President or portrays the government as evil.
The Gambian Sedition law, as approved by the Supreme Court, limits ordinary people to speak out what is in their minds against people in both the private and public limelight. This law gags our mouths and minds.
Thus, the right to freedom of speech is infringed, limiting the democratic expressions of what people are talking about. Even jokes are under scrutiny.
Much more with lampoon writings will be dissected and examined more thoroughly to get the real meaning of every word. We believe this Sedition law is only benefiting, protecting people in the government and multinational business agents, and further subduces the right to information.
No matter what the authorities say, the criminalisation of libel is not reasonably justifiable in a democratic society!
It is, in fact, a monarchial, archaic, and backward law! It is never helpful to freedom of expression to jail journalists and non-journalists for libel. It is better addressed in civil courts without putting the right to freedom of expression itself in jeopardy.
Over the past decade, in many instances where the Yahya Jammeh-led government has, through the application of these laws, forced many citizens and journalists into exile, arbitrarily detained, or disappeared.
The draconian media laws have been passed when the African Commission on Human and Peoples’ Rights (ACHPR) headquartered in the capital, Banjul. Many African Civil Society Organizations (CSOs) petitioned the ACHPR to relocate from the Gambia to protest the country’s perpetually poor human rights record.
“A libel is public and malicious imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
Libel and sedition have been possible only through published or broadcasted content. Such content has been the domain of the edifices and establishments regulated by the government and thereby accredited to claim public trust.
Thus, these products of whole organizations, content expected to have run the gauntlet of editorial diligence, are expected to be factual—harking back to the old saying, “if it is in print, on the radio, or TV, then it must be true.” So, libel and sedition have been a crime committed by entities that claimed, explicitly or not, to be sources of substantiated facts.
This Sedition law which was enacted by the previous regime of Yahya Jammeh and upheld by the Supreme Court of the Gambia as Constitution following a legal challenge of the law by the Gambia Press Union (GPU) and retained by the government of President Adama Barrow in other words, will not only deprive Gambians of their constitutionally guaranteed liberties of freedom of expression and speech.
It will deprive them of their place in the world as it has evolved and continues to evolve. It will deny them their place in a world and time where free expression is a right and integral to the way of living, of competing, of surviving, of being. The law explicitly brings the archaic libel law into the realm of the Internet.
Although the infamous cybercrime law, known as the “Nana Grey Johnson law,” has been repealed by the government of Adama Barrow in 2019. The law, which was an amendment to section 114 of the country’s criminal code, empowers the courts to impose a jail term of five years, or a fine of D50,000 (about US $977.52) for a misdemeanor that previously attracted a jail term of not more than six months or D500 (about the US $9.78).
Apart from stiffer punishments, Nana Grey Johnson law also classifies the President, vice president, speaker, deputy speaker, and members of the National Assembly as public officers.
The classification approved by the National Assembly is inconsistent with section 166 (4) of the 1997 Constitution, which does not recognize these officials as public officers.
However, as part of the Nana Grey Johnson law, the offence of giving false information to a public servant has been retained by the government of President Adama Barrow, which has long been considered draconian, inconsistent, and inimical with specific provisions of the Gambia Constitution as well as provisions of other international and regional treaties to which The Gambia is a signatory.
The Nana Grey Johnson Law on July 4, 2013, amended the 2009 Information and Communication Act and introduced a 15-year jail term and a fine of 3 million Dalasis (about US$ 58,651.03) to any individual convicted of using the Internet to spread false news or make derogatory statements, incite dissatisfaction, or instigate violence against the government or public officials. The penalties apply to individuals living in the country and abroad.
Furthermore, former Information Minister Nana Grey Johnson said the amendment had been passed to prevent Gambians from engaging in “unpatriotic behaviour” against the government and public officials.
Despite the view of the United Nations Committee on Human Rights, Cybercriminal law argued that libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression.
The Nana Grey Johnson Law of 2013 was outright defiance of the UN Human Rights Committee on the case of the Gambia’s Cybercrime Prevention Law. In that view, the UNHRC declared that the Gambia Cybercrime law under the Information and Communication Act 2013 contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel or the payment of damages.
On April 16, 2013, the National Assembly of the Gambia, however, amended sections of the Criminal Code to empower the courts to mete out stiffer punishments to persons found guilty of giving false information to public officials.
The repealed Act on Cybercrime Prevention Law, which added electronic libel as a new criminal offense for journalists and diaspora activists using the Internet, added electronic libel as a new criminal offence.
As stated by associate justice of the Supreme Court of the United States Justice Louis D. Brandeis, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.
Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
The Gambian Government has, for many years, weighed down citizens and the media with draconian laws that criminalise speech – such as cyber-libel, the publication of false information, seditious libel, and criminal defamation – to cow them from being critical of the government and its policies.
In contrast, personal musings posted on social networks such as Facebook and Twitter make no such claim. That such products of personal and emotional expression can reach a wider audience than traditional media.
These can gain weight and credibility by the likes and shares that effectively endorse them to ever-widening circles of readers, and there is no doubt. Indeed, such personal expressions can rival the power of established media content.
However, the widespread acceptance that can make social content equivalent to news reports on print, radio, and TV is earned through the agreement and advocacy of the readers who choose to share these further and not by claims of journalistic fidelity by its authors.
Social content is composed of opinions meant to be read-only by the author’s friends.
Furthermore, like the author, those friends are free to believe what they want, like what they want, and share what they want. Can these circles of friends be treated like organised media outfits and, like them, be held liable for libel? I think not.
Since the Gambia is no exception in the world of social media and terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints, which are frequently brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution.
The fact that allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.
The question being: are social media like Facebook and Twitter platforms for private or public expression? The Sedition law has answered that question. Anything you do online – writing, posting, sharing, “liking” – is essentially publication and, for that matter, broadcasting. Nothing is private. Everything is actionable and potentially criminal.
One legal luminary and a jurist, Albert Francis on internet libel, says he did not see the provision nor appreciate its implications in law. He also said that he did not see additional clauses that aggravate the penalties – more heavy fines, lengthy prison terms – for libel when found and proved online.
Albert Francis further stated that no provision in the law would allow libel prosecution twice over, offline and then online, violating constitutional guarantees against the effects of the double jeopardy Clause. This principle means, No person shall be subjected to the same offense to be twice put in jeopardy of life or limb.
Moreover, it is retroactive, too, experts now say. Alternatively, at least, it will erase the very concept of retroactivity. Because the Internet potentially keeps your posts, tweets, and status updates live in perpetuity – or at least until the Sedition law pushes you, as it will, to take everything down – there is no past date beyond which the long arm of the law cannot reach.
In other words, the assailed media laws in our statute books stifles the freedom of Gambians to express themselves in what is by far the most democratic medium ever created by humankind.
The archaic and modified draconian laws stifle speech and thought, altering not only words but also action. At every turn and every moment online, Gambians will have a specter of subsequent punishment hanging over them, effectively acting as prior restraint.
The Human Rights and Freedom of Expression Organisations also believed that Sedition and libel law in The Gambia does not recognize truth as a defence and is also defective on this ground.
Our constitutional commitment to freedom of expression has long been recognised.
American jurists Justice Wendell Holmes, for instance, wrote: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . ..”
The commitment exists because it is only through the freedom of expression that we can discern the truth and able to visualize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. Therefore, we have been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
Relying on his expert opinion, we conclude that Honorable Minister for Information and Communication and Attorney General and Justice Minister to take every step to repeal the Sedition law, or replace its libel clause, or correct its formulation.
For a law like other laws that enjoy the presumption of regularity, this Sedition law, in so far as it infringes on freedom of expression, and with a heavy presumption of unconstitutionality.
By Alagi Yorro Jallow