Freedom of expression, of speech and of the press is sacrosanct, right of journalists should not be ordinarily interfered with a 7-judge bench led by Chief Justice of the Gambia. The rights of Journalist can’t be curtailed. If there must be any limitation that has to be as per the prescription in law… freedom of expression, of speech and the press is sacrosanct and should not be ordinarily interfere with the bench.
Freedom of speech and of expression and is a hallmark of democracy as its unfettered enjoyment contributes to functional democracy that encourages citizen participation for good governance and accountability. Every citizen is supposed to be protected. Sedition is where a person utters or publishes statements aimed at bringing hatred, contempt or disaffection against the President, the Government or the Judiciary.
This law on sedition are inconsistent with the Constitution, these are therefore null and void. This law on sedition had narrowed constitutional rights of journalists and the public at large. Sedition in the Penal 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 criminalize any form of expression which the government thinks are insulting to the president or portrays the government as bad.
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 weaponized to oppress the indigenous people and has continued to be weaponize by two presidents born at independence] against their own people. Both President 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.”
“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 reiterated that “To announce that there must be no criticism of the president… is morally treasonable to the American public.” John F. Kennedy reinforced the need freedom of expression in a democratic country that “Without debate, without criticism, no administration and no country can succeed — and no republic can survive”
These sage words from two American Presidents who understood that democratic foundations are rooted in freedom of expression and of speech, fair and independent rule of law enforcement.
The power of speech cannot be underrated. It gives voice to the hopes, dreams, ambitions and aspirations of a people. It is sacred. Any attempt to silence this, no matter how well-intentioned, must be resisted by all Gambians of good will. Let us not leave the responsibility of guarding our hard-earned freedom of expression to others. We ought to take ownership of this precious right and all that it entails. Gambians must jealously guard the gains that our forefathers struggled so too hard to achieve.
There once was a time when the Gambia proudly boasted that it was the nation of law and order during the First Republic. During the Second Republic those assertions tainted with the stain of hypocrisy. Encouraged by President Barrow’s government with evidence-free mudslinging by people who you would have thought would have known better.
But like a looming iceberg threatening our ship has sought complicity rather than justice from the Supreme Court. This kind of behavior is anathema to our national principles. The stench of authoritarianism grows more pungent.
I do not believe most Gambian people will abide this. History will not be kind to those who seek to undermine freedom of expression and speech.
I have found that cover ups, especially of the brazenness and consequence hinted at by recent Supreme Court rulings, do not stay hidden for very long. And the truth will not be pretty in the verdict of posterity.
Sovereign people should not make Presidents as demi-god. There are no special laws for the president. 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 om freedom of expression standards.
The Gambia and other members of the African Union should emulate Kenya and Uganda repeal sections of the penal code that impede the enjoyment of freedom of expression that individuals should not be criminalized for merely expressing themselves. By criminalizing ‘insulting the President’ will threaten even newspaper cartoonists for their satirical art work. Every civilized society’s constitution guarantee freedom of expression which include 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!
In a long-sustained democracy like Senegal, criminal sanctions remain available for defamation and that those sanctions are almost four times higher when defaming public officials as opposed to private individuals. 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.
Freedom of Expression is a fundamental right to be enjoyed by all citizens that individuals should not be criminalized for merely expressing themselves. In democracy, we should be very accommodating of criticizing. Laws such as these [insulting the President] have no place in a democracy that guarantees freedom of expression.
The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that “Everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Sedition laws violate Section 1 subsection 2 of the Gambia Constitution, which states that the sovereignty of the Gambia resides in the people and the state derives its legitimacy from the people. Sedition laws also directly violate Section 25 of our Constitution, which is an entrenched clause, as well as Section 207, which guarantees the freedom of the media
The right to free speech is inalienable. Freedom of speech is the political right to communicate one’s opinions and ideas. This includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute and is commonly subject to limitations, as with libel, slander, obscenity, sedition (including, for example inciting ethnic hatred), copyright violation or revelation of information that is classified.
It is at this time that the online overview of Demb Jawo is being sorely missed. I think this informed piece by Alagi is one of his very best. Deeply distressing for the health and welfare of freedom. Here’s to the new boss…. same as the old boss .
Blaming the wrong Institution Alagi. Hassan B. Jallow and Co. at the Supreme Court do not make the law. They merely say what the existing law is. You should be asking: “Why has the Govt and Parliament left Jammeh’s bad laws in place?”
The Govt will answer: “We are changing the Constitution – SOON!”
In UK this week, the High Court has disappointed the Grenfell Local Community (71 died including Gambian friend Mary Mends and her daughter who was once my student) – but the High Court was merely stating what the law is: It was the Defendant, Prime Minister May, who was taking advantage of the law to make a bad decision. But Lord Justice Bean said, like Chief Justice Hassan B. Jallow: “Like it or not, that is the law Parliament made”.
Hello Gambians and Fellow “Subjects”. It is unfortunate that African governments seems to believe that Power is better when it is concentrated and held by an individual not the people who elected the individual. Please understand my concern here is with those who are in Power and not the population they are supposed to be serving. Until that time and place when the Law of the Land, that is, our Judicial Branch is not just merely “Separated from the Executive Branch” and its roots deeply rooted in its Culture and Traditional Practices and Values, it would be a futile and meaningless adventure in Search of a Nurturing and Sustaining Judicial Branch and Law and Order. The prenial and unending judicial branches’ Adolescence in the Gambia and elsewhere in Africa, is the Africans ability to rationalize and detach ones principles and values from the responsibilities vested upon them. Let me explain what I mean. There are two physical environments human beings live in. The “Nurturing and the Sustaining Environments”. The Nurturing environments are the Family-nuclear or extended family and friends. The Sustaining Environments are the Institutions such as the Government, Corporations, NGOs, and the like where individuals get their means of Sustenance for example, the Cabinet, Judiciary, the Banking Sector and so on. The unit of focus and interest at hand is the Judiciary since the Supreme Court is under the Judiciary Branch. Law cannot be divorced and or separated from a given Culture, Traditional Practices and Values to the exclusive adoption of a foreign Culture, traditions, practices and values. I am not against Cross-pollination in the analogy of the bee and the plant. The bee benefits and the flower does too. Honey and offsprings for the bee and more seeds and other plants for the pollinated plant and the cycle continues. Such is not the case with our state of affairs in Africa. We copy without adapting what we copy to our reality, that is our Culture, Traditional Practices and Values. We are now copying China the way we did with European and American “isms”. Yet in 2018 most African countries are still struggling to feed their populations much less educate, house and keep healthy. If an educated, skilled, well fed and healthy citizenry are a pre-requisite to a sustainable development of any Country, then what we have been doing in past have not been working, nor the right thing to do for our Country and People. May be we need to examine pit falls and assumptions we have been making and hopefully avoid repeating them and managing to mostly harvesting the bitter dissatisfaction and disappointment’s fruits for the People. Our laws and those who practice them are far removed from our reality and Worldview and yet there is very little time and resources utilized for the expressed purpose of educating the people about the most important element of government, the Law of the Land aka the Constitution and its Auxiliaries the Courts, Police and the various appendages that maintain Law and Order. The emphasis should not be “Order” as defined by those in Power but on “Law” as it applies to all without regard to Caste, Economic, Political or Religious Affiliation or Status. The Law must be meaningful to the daily life of the people it is meant to Serve and Protect. When Courts especially, Supreme Court Decisions violate this Cardinal point and Affirm Repugnant Laws, it fails its responsibilities of being the Interpreter of the Laws of the Land. Interpretation in this Context is not one of “Parroting” what the words are, but the Material and Substantive meaning and intent behind those words. Any Law that fails to “Pass Muster” test must be Declared Unconstitutional. It is then the duty and responsibility of the Legislature to either rework the Law to “Pass Muster” test or abandon it. Failure on the Supreme Court’s part to Nullify a repugnant Law encourages the Executive and the Legislative Branches sow “bad” seeds within Constitution and other Laws, Ordinances and Regulations. The usual long term outcome or result is the same. Civil disobedience and eventually Civil Disturbance. Africa and Gambia should have “Democracy with an African Characteristics” like the Chinese did and are better for it. Singapore has its own type of Law and Order given its Special Characteristics, that is being a Small City State with a large and growing population. Without the kind of benovelent Law and Order Social Contract between the Singaporeans or Singaporees and the government, Singapore would not be what it is today. The same applies to China and in some measure to Japan too. Japan is a bit different in that though both Countries were Closed off for years, the Japanese Constitution was forced on them by the Americans who occupied Japan after the Second World War. However, both Countries had Constitutions and Laws that took into account their Cultural, Traditional Practices and Values. I am with the Modest hope that Africa and the Gambia would pause in the prenial copying of others ready made Laws and Create Laws that address their Reality while maintaining a healthy respect for Individual Freedoms, Group, Political and Economic Rights. Laws are supposed to be the Fulcrum on which a Country, State or Society is Anchored. Allah/God Bless the Gambia, Gambians, Africa and Africans to look within themselves and Africa for their own Laws and Political Dispensation of Democracy with African Characteristics.
Mr. Halake, this is Gambian Outsider! I asks, who is the protector of The Law in a democracy? Who says what The Law is, when a statute is repugnant to a Constitutional provision? Did you read the opinion of the Supreme Court in this matter, at least to know its reasoning? That is, if one exists at all. In the same vein, did you read the Supreme Court’s opinion in the case where it declared the Public Order Act (POA) constitutional? If the Supreme Court has issued an opinion on either case and you have read those opinions or either of them, please have those opinion(s) published. The reasoning being, when the highest court in a country decides a case that has constitutional implications, that court has a duty to the citizens of that country to issue an opinion in which it shows that its reasoning is in accordance with law, i.e., it did not violate the Supreme Law of the land. If you have not read any opinion by the Supreme Court in the case it recently decided and of which Mr. Jobarteh writes about or the case of the POA, then, as a lawyer, don’t you think, it is rather sloppy to make commentary on a case or cases that you have not read the opinion of the Court. Or may be you can tell us what questions were presented in the two cases I just mentioned.
Mr. Jobarteh argues that the Supreme Court’s decision violates at least, the free expression provision of The Gambia constitution. And he makes a very reasonable argument I might add. When a statute’s constitutionality is challenged, the Sedition Act is a statute, the Supreme Court cannot “merely state[..] what the actual situation is.” In other words, the Supreme Court must give a clear and unambiguous reasoning of its decision. You seem rather impatient in your commentaries on the writings of Mr. Jobarteh and Alagi Yorro. There seem to be something that irritates you whenever you read what these guys write. I will admit that most of what you say about Alagi Yorro’s writings, I actually agree with. Mr. Jobarteh, on the other hand, may be the “Master of the Hyperbole,” that is how I call him, but he writes well and makes valid arguments. The other day Mr. Jobarteh wrote about press freedom and you wrote a commentary which was totally out of place. In that article Mr. Jobarteh cited a United State Supreme Court case and in your commentary, you went off on a tangent about American foreign policy. What you said was completely unrelated to what Mr. Jobarteh wrote. And more importantly, you never read the case Mr. Jobarteh cited to verify what he said. If you do not like American foreign policy that is fine, but please do not mixed up the U.S Supreme Court decisions with American foreign policy. Had you been aware of the “nonjusticiable doctrine” of the U.S. Supreme Court, then you would not have made such an absurd commentary. You, as a lawyer, even though I do not know you personally, I hold you to a standard of fairness, objectivity, and to speak of things that you actually know something about.
What I really wanted to say today is this: To say that The ‘New” Gambia “New” Supreme Court is a disappointment would be an understatement. Have a great day, Sir!
These are very serious issues which are fundamental in a truly free and democratic society. Why would it take so long to rectify The Constitution, and more relevant to ask ///why does the Barrow government use the same “Jammeh” laws that it promised to remove, as part of there manifesto and election promises.
This government is in name only; it has failed to improve the Gambia’s economic outlook. In fact under this regime, Gambians are even poorer than when under the APRC. We did think that Gambian lawyers in key positions would remove all the constitutional and legal restrictions on freedom.
What we are witnessing is a creeping return to something Gambian made and more untrustworthy than Jammeh. It’s a Gambian thing. It will never change for the poor but get better for the rich. Most of them now control government.
This lot need run out of town and some sensible Gambians must occupy and fill these unproductive spaces.
Thank you Mr. Halake. Instead of taking sides between what Mr. Jobarteh and Alagi Yoro wrote and what you said you read on Facebook, if the Supreme Court had issue a full opinion in which it states why certain wordings of the Sedition Act were struck down and some not, that would have been the most helpful. When a Supreme Court issues one-liners in a case as important as this one, it is reasonable to suspect that something is amiss. Why is the President being protected as if he does not already have enough protection in the Constitution as it is. To protect a President in a manner that violates a constitutional provision need to be explained with clarity. How did the Supreme Court arrived at its decision. How did the Supreme Court balanced the interests to protect the President from “Sedition” against the freedom of speech of The Gambian people? Of course, no constitutional right is absolute and hence speech can be regulated. The question is what steps did the Supreme Court took to balance these two interests. As you can see, without a complete opinion explaining its reasoning, Gambians are left in the dark. The President is not above the law. Or as my Lord and Savior Jesus Christ teaches in the Holy Scriptures “Man was not made for the Sabbath, but the Sabbath was made for Man.” In a similar line of thought, The Gambia did not come into being because of the constitution, but the Constitution came into being because of Gambians, i.e., to form a government, create rights and protect those rights of Gambians. Hence the often quoted Section 1 (2) of The Gambia Constitution: The Sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose “name” and for whose “welfare and prosperity” the powers of government are to be exercised in “accordance with this Constitution.”
Now, here you have “The “new” Gambia “new” Supreme Court” protecting the President in violation of the constitutional right of Gambians to speak their minds about someone Gambians put in office. This is remarkable Sir. A President’s life and property should be protected by all means but he or she cannot be protected from speech. You would think that with all the experts surrounding the President, whatever false speech is directed at him could easily be dispelled by his many experts. No one in The Gambia has more ability to do just that than the President. Why would the President be protected from the speech of a low-lifer like myself or ordinary Gambians? Gambians should be protected from the President because the power he has and not the President protected from Gambians. Sir, Gambians put the guy in office after all ! Have a blessed day
Bless you too Samba. All I can say is that no laws, however good, can protect a country if the hearts and minds of its rulers or its people become consumed by evil. Let us pray, as a country of MOSTLY good Muslims and good Christians, that our leaders and our people cultivate thoughts and actions that ward of evil. Thank you for your response.