The ruling today by The Gambia Supreme Court that sedition as stipulated in the Criminal Code is constitutional is indeed frightening, disappointing and annoying.
Sedition first emerged in England in the latter part of the 16th century as a political and judicial weapon against intellectuals who were raising critical issues about freedom, democracy and the power of the monarch. Before sedition, the monarch had already created the offenses of treason to contain rebellious elites, clergy and the privileged class while martial law was also created as a weapon against commoners. Hence sedition is the final complement of draconian laws used to protect the monarchy from scrutiny and accountability and to place it beyond and above citizens.
In a monarchy such as 16th century England, the sovereignty of the people resides in the king. Hence it is understandable to have such an obnoxious offense as sedition in a monarchy so that no one questions the king.
But in a democratic republic the sovereignty of the nation resides in citizens and the government derives its legitimacy from the people. This is what The Gambia Constitution states in Section 1 subsection 2.
Furthermore the right of Gambians to express their opinion about their president and his government, rightly or wrongly, pleasantly or unpleasantly as well as to petition the president and to participate in politics to oppose the president are clearly stipulated and guaranteed in the constitution.
The presence of sedition laws therefore directly and clearly violate the spirit and letter of our constitution which purposefully intended to establish a democratic republic and not a monarchy.
Therefore to have our Supreme Court now stamp that sedition is Constitutional is indeed a very backward and a politically motivated decision that can only produce dictatorship once again in our country.
Not long ago the ECOWAS Court in which The Gambia is a party ruled that sedition laws in The Gambia are inimical to democracy and a civilized society. The supreme courts in Nigeria, Uganda and India among many had long since ruled that sedition is unconstitutional in a democracy.
This ruling by the Supreme Court therefore serves only one purpose: that is, to elevate Pres. Adama Barrow and his government above the will and power of Gambian citizens to scrutinize. The Supreme Court has now confirmed that no Gambian citizen has the right to question the president much more to disagree and criticize the president.
This means the Supreme Court has just told us that the President of the Republic of The Gambia is a monarch! Anyone who says this is indeed committing a treason because such a statement means the sovereignty of The Gambia does not reside in the people of The Gambia. The Supreme Court is saying that the President is the sovereign in The Gambia. That is treason!
All citizens must resist this ruling and demand that this Supreme Court review it’s decision or those judges who hold this decision to resign. They do not represent the supreme interests of The Gambia. Their ruling clearly indicates their intention to lock this country into a dictatorship forever and ever!
For The Gambia 🇬🇲 Our Homeland.
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’ Adolescents 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 environment is the Family-nuclear or extended family and friends. The Sustaining Environment are the Institutions such as the Government, Corporations, NGOs, and the like where individuals get their means if 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, what ever we have been doing in past have not been the right thing to do for our Country and People. May be we need to examine put falls and assumptions we have been making and hopefully avoid repeating them to the bitter dissatisfaction and disappointment of 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, the 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. 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 and Group, Political and Economic Rights.
Jammeh and Samba charged me with “Seditious Intent” and my lawyer Fafa Mbai argued that there is no such law! The Govt needs to abolish “sedition” – the Supreme Court is merely stating what the actual existing situation is. Hassan B. Jallow and Co. do not make the law themselves – that is up to the Attorney General and Parliament.
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 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!
Samba, both Madi Jobarteh and Alagi Yorro Jallow are giving readers FALSE IMPRESSIONS of what the Supreme Court decided. Here is the true picture courtesy of Kerr Fatou FACEBOOK:
“ The Supreme Court has on Wednesday declared as unconstitutional Gambia’s toughest media law which prescribes 15-year jail term or a fine of D3 million for anyone found guilty of broadcasting false news on the internet.
Sedition should only cover the presidency and not the Government.
Nana Grey-Johnson’s 2013 Draconian Law
Meanwhile, the country’s top court has declared criminal defamation and 2013 information and communications act which applies to the internet as unconstitutional.
The law which is referred to as the Nana Law has been enacted by the National Assembly in 2013 and it is considered Gambia’s toughest media law which prescribes 15-year jail term or a fine of D3 million for anyone found guilty of broadcasting false news on the internet.
Hawa Sisay Sabally, the lawyer for GPU told journalists following the verdict that the challenge to the sedition law is successful in part.
“The aspect that deals with the Government was held by the Supreme Court to be unconstitutional but they have offered protection to the president. The second part that deals with the president is constitutional. So in so far as it relates to the president, sedition remains a law in the country,” Sabally said.
“Law on defamation has been taken out and the laws relating to the internet such as false news and caricature of public officials has also been struck out…
“What happens is that speech will no longer be criminalized in this country and in as much as we have sedition still in the books in a limited form, I think we can safely say that journalists can enjoy their work now. Those factors that used to deter them in doing their work will no longer be there.”
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.