Gambia: Supreme Court Scraps Criminal Defamation, Upheld False Publication

Gambia’s President Adama Barrow got elected in 2016 on promises of press freedom, freedom of expression and respect for human rights, but after one year in office, his public ratings were low, especially on social media (Photo Credit: Modou S. Joof/TNBES/Feb 2017)

By Modou S. Joof (@JoofMS)

The Gambia’s Supreme Court on Wednesday ruled that “criminal defamation”, “libel” and “false news online” are unconstitutional.

However, the Court upheld the “false publication and broadcasting” law as  constitutional, and scrap in part the coverage of “sedition” law to only protect the President of the Republic and the administration of justice.

“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,” Hawa Sisay Sabally, the counsel for the Gambia Press Union is quoted as saying.

Spreading false news online, which was introduced in 2013 as part of amendments to the ICT Act, attracts a penalty of up to 15 years in jail and a fine of D3 million (about US$64, 000).

In 2015, the Gambia Press Union filed a suit at the Court challenging the constitutionality of sedition, libel, criminal defamation, and false news – laws human rights defenders describe as “draconian”.

These laws are  found in Sections 52, 59, 180, 181A, 178, 179 of the Criminal Code Volume 3 of the Laws of the Gambia. Section 173A of the Information and Communication (Amendment) Act, 2013 provides for internet related offences that include spreading false news against the Government or public officials, the use of caricature, abuse or derogatory character of a public official online.

While the Gambia Government initially conceded on the unconstitutionality of criminal defamation and sedition laws, it maintained that the false news [publication] law is “necessary in a democracy” for “reasonable restriction”.

Shocking

Local journalists have described Wednesday’s ruling as “shocking”.

“The #Gambia Supreme Court has taken a shocking departure from what obtains in democracies around the world as it judged laws on false news, sedition as constitutional, barely few months after Ecowas Court declared those laws unlawful in a democracy,” Saikou Jammeh, Secretary General of the Gambia Press Union said.

“The Supreme Court’s decision is bad news for #NewGambia, outrageous [and] unacceptable. The Gambia Press Union is committed [and] will consider measures seeking to overturn the decision by the court on laws used to suppress free speech [and] restrict the freedom [and] independence of the media.”

In February, the ECOWAS Community Court found that Gambia’s laws criminalizing speech and its treatment of four journalists during their arrest violated their rights, according to the Media Legal Defence Initiative.

The journalists (Fatou Camara, Fataou Jaw Manneh, Alhagie Jobe, and Lamin Fatty) lived in exile for fear of further persecution, MLDI said following what it called a “landmark judgement”.

Forces journalists into self-censorship

Amnesty International’s West Africa Researcher, Sabrina Mahtani, said the laws have done nothing but created a pervasive culture of persecution, violence, and injustice against Gambian journalists.

She said the new government should waste no time in repealing these laws to ensure it meets its responsibilities under international and regional law, and to lay a foundation for a strong human rights culture.

Reacting to the May 9 ruling, Pa Louis Thomasi, acting director of IFJ Africa, said “When a law like this is only design to protect the President, then it will surely force journalists and the media in general into self-censorship.

“Sedition in its totality should be remove from our law books. On the other hand, Gambia like other civilised nations must decriminalize libel and all form of insult laws.”

Media law reform

Early this year, the Gambia Press Union submitted a legal position paper on media reform to the Minister of Information, Demba Ali Jawo, stating:

“It is against the existence of the these laws whose very existence foster a climate of fear and self-censorship and hinder the ability of journalists and other media practitioners to hold the government and powerful institutions or bodies to account, that this paper would focus on to make recommendations for reform.

“These law deter media practitioners from effectively functioning freely and independently.”

Front Page International (FPI) understands the process of media law reform undertaken by the Ministry of Information has been slowed-down pending the outcome of the Supreme Court case.

The media laws in The Gambia provides for a minimum prison term of two years and a minimum fine of D50, 000 (more than US$1063) for journalists.

In 2012, ARTICLE 19, in its analysis of selected Gambian media laws, concluded that “the laws governing the Gambian media… are fundamentally flawed and incompatible with The Gambia’s obligations under international and regional standards on freedom of expression.”