rights lawyer, Neneh Cham, has described as “a bad precedent” the decision of a
magistrates’ court to convict her client for using Skype without license.
“The judgment of the lower court had set a bad precedent which would also essentially criminalise a large number of the population for the simple act of using Skype, Facebook, Snapchat, WhatsApp and other voice over internet protocols (VOIPS) calls,” Ms Cham said in an exclusive with The Point.
Speaking for the first time after the lower court decision was overturned by a high court in late November, Ms. Cham said her client has been vindicated and [that] feels like justice has prevailed.
“Personally, it begins to restore my faith in our criminal justice system not only because my client was acquitted and discharged, but because justice has finally been done in this case,” she added.
In 2014, Neneh Cham’s client, political activist Lasana Jobarteh was convicted and fined to pay D50, 000 or serve an imprisonment term for broadcasting without license using Skype.
He was accused of giving information abroad using Skype while attending the then opposition political rallies at Buffer Zone in the Kanifing Municipality and Brikama among other places, without a broadcasting license. Jobarteh denied any wrongdoing.
Magistrate Isatou Janneh found Mr. Lasaana Jobarteh guilty after Ebrima Kijera, the magistrate who was set to deliver a judgment after months of hearing both the prosecution and witness arguments “was abruptly transferred” to Farefenni, North Bank Region of The Gambia the week he was scheduled to deliver judgment.
In Magistrate Janneh’s ruling in 2014, the accused was not eligible to broadcast without license using Skype. In her argument, being ineligible does not warrant a person to broadcast without the required license.
However, according to Lawyer Neneh Cham, such a decision “erroneously required my client to have had a licence for using Skype video calls.”
She said Section 2 of the Information and Communication Act 2009 contemplates an act of transmission only by an incorporated body that must be licensed by the Minister as a broadcaster and/or a natural person who has editorial responsibility for the composition of television programme services for reception by the general public and transmits them.
“So from the onset, it was clear that my client was never a broadcaster, he was not even eligible to be granted a broadcasting licence under Section 231 (1) on eligibility and evaluation of applications to use skype. The trial Court’s judgment had to be set aside,” she argued.
Ms. Cham is also encouraged by this development and other recent judicial decisions in particular criminal appeals that have delivered justice by seeking to put right some of the wrongs inflicted on innocent citizens and non- citizens alike.
“This gives me cause for hope. The past many years witnessed a systematic violation of many people’s human rights and in many cases, without an iota of credible suspicion or evidence of the commission of a crime. Many decent Gambians including professionals were prosecuted, convicted and imprisoned on frivolous criminal charges, some alleging brutal experiences in the process,” she lamented.
In her view, the state must remain true to its commitment to the protection of human rights under any circumstances.
“What we expect in this new dispensation is that the rule of law will be upheld with respect to anyone without fear or favour at all times. This is the only choice, and one that will restore confidence in our criminal justice system,” she maintained.