Supreme Court decision worries journalist Fatty

Tuesday, May 15, 2018

Lamin Fatty has been living in exile in Senegal since 2007. In 2017 February, he was among a dozen other journalists that crossed the border to return home, with high hopes for freedom and reforms in a ‘New Gambia.’ On the 9th May 2018, Fatty displayed uncertainty in his eyes and voice for the first time in a year when the Supreme Court decided the law on false publication, used to convict him ten years ago, was still constitutional.

The five member-panel of judges, chaired by the former prosecutor of Arusha based war crimes court who currently serves as chief justice of The Gambia, found that criminal defamation, libel and the Information Communications Act relating to internet offenses – latter considered one of the toughest internet laws in Africa – unconstitutional. However, Section 181 (A) of the criminal code, pertaining to sedition, remains constitutional according to same judgment.

“Speech will no longer be criminalised in The Gambia,” Hawa Sisay-Sabally, lead counsel for The Gambia Press Union said, in reaction to the ruling on Wednesday, May 9, at the court complex in Banjul. “Although sedition still exists in the law books in a limited form, I think we can safely say that journalists can enjoy their work now,” she added, noting that it was victory for Gambian journalists.

The country underwent 20-year dictatorship under Yahya Jammeh. Over 200 journalists fled the country during this period, according to The Gambia Press Union, including Mr. Fatty. Paris-based Reporters Without Borders once described Jammeh as “predator of press freedom” in its global ranking of leaders most hostile to journalists.

“The Supreme Court’s decision is bad news, outrageous & unacceptable,” the local press union secretary general Saikou Jammeh, tweeted in reaction to the ruling. “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,” Jammeh added.

“There’s good news though. Criminal defamation false publication on the internet has meanwhile been declared unconstitutional by the Supreme Court,” Jammeh pointed out, signaling that the ten year-fight against the law has finally bore some fruit.

This Supreme Court ruling contradicts a February 2018 ruling by the sub regional community (ECOWAS) Court of Justice that directed Gambia to “immediately repeal or amend criminal laws on criminal libel, sedition, and false news in compliance with international obligations”.

Despite these, developments, journalists like Mr. Fatty remain less enthused: “I am worried that my sacrifices and fights for press freedom for a new Gambia will suffer a set back after this decision…,” he said in a chat with The Point last week, calling on authorities to use the constitutional reform commission to repeal these media laws.

In 2006, he was charged with false news after a list containing names of arrested and detained persons in connection with an alleged coup attempt, mistaken a title of one Samba Bah. According to the said publication, former Interior Minister Samba Bah got arrested when in fact, it was one Corporal Samba Bah of the Gambia Armed Forces. The paper ran a front-page correction of the title of Samba Bah on its next edition. Fatty got arrested, detained and tortured at the NIA for 63 days before being released on bail.

After his conviction, he hired services of lawyers to appeal against the court’s decision in Banjul while he lived in exile in Dakar. The conviction would not progress because the court demanded he appear in person.

In 2014, Fatty joined three other exiled Gambian journalists and the Federation of African Journalists to challenge Gambia’s media laws deemed “draconian” to press freedom and free expression.

At a landmark judgment, the court found that the rights of four Gambian journalist plaintiffs had been violated by the actions of the Gambian authorities, and through the enforcement of laws criminalising speech. The judgment also recognised that the criminal laws on libel, sedition and false news disproportionately interfere with the rights of Gambian journalists, and not necessary in a democratic society. That they were not narrowly enough drawn.

The Gambia’s Supreme Court in its May 9 decision said it was aware of that development but maintained that it has exclusive jurisdiction in the matter since it has to do with constitutionality or otherwise.

On 22nd September, 2014, lawsuit against the state, Gambia Press Union argued that the provisions of Sections 51, 52A, 53, 54, 59 and 181A of the Criminal Code of The Gambia, are unconstitutional for failing the test of reasonable restriction as provided under Section 25 of the Constitution. The union based its arguments on Sections 4, 5, 17, 24 (a) and (b), 25 (4), 207 and 209 of the 1997 Constitution of The Gambia.

In arguing the case of the Union, lawyer Sabally, relied on the provision of Section 25 (1) of The Constitution and other International Laws such as Article 19 of the International Covenant on Civil and Political Rights, Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR), as well as the ECOWAS Treaty.

Section 51 deals with Seditious Intention, 52 deals with Offences, 52A with powers to confiscate printing machines, 53 with legal proceedings, 54 with evidence necessary for conviction, 59 with publication of false news with intent to cause fear and alarm to the public and 181 (A) deals with false publication and broadcasting.

While in exile, Fatty’s mum died in his absence and a fire outbreak gutted his family house to the ground. His wife and kids relocated and stayed at a relative’s house until he was able to return home last year after Jammeh was exiled.

Minister of Information Demba A. Jawo maintains that the court’s decision has not in any way affected the government’s current policy to reform media laws in the country. “I can assure you that we will never have the cause to use such laws against journalists,” Jawo told a local talk show platform on the May 11.

Meanwhile, Fatty and other journalists await the enforcement of ECOWAS Court decision that demand compensation for victims of torture and violations. 

Author: Kelepha Sanneh