May 16, 2012, 1:15 PM
In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.
The courts of every nation are charged with the responsibility "to administer justice according to law". What does this mean?
Firstly, it means that there are a set of laws (it does not matter whether such laws are known, good, draconian, unjust or perverse) that regulate the matter that is before a court; Secondly it means there are allegations that a person has violated these laws; thirdly that there is a descriptive process or procedure that is perceived to be fair and balanced for proving or disproving the allegations; fourthly that there are sanctions or penalties or consequences for a violation of the law.
It is based on these four pillars that a just and free society is built. It is based on these principles that judges are enjoined to administer justice according law. It is not for the judge or advocate to say that the law is good or bad. The judge is there to interpret the law and the advocate is there to submit that one interpretation is to be preferred to another taking all the circumstances of the case into consideration.
Therefore simply having laws does not ensure true justice. After all Nazi Germany under Adolf Hitler was an extremely orderly society but I do not think that anyone would argue that it was a just society.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life,
A review of the domestic laws of the Gambia reveal a set of laws that adversely impact on enjoyment of fundamental Human Rights, laws whose provisions are at variance with the ideals set out in the Constitution. The failure to repeal these laws, which are glaringly in conflict with constitutionally guaranteed rights, has left many laws in place that are restrictive of the freedom of expression and the media in The Gambia.
Domestic legislation affecting human rights laws in The Gambia restrict the broad rights set out in the 1997 Constitution. In spite of the very clearly worded and liberal entrenchment of the right to freedom of expression in the 1997 constitution, the various laws contain claw-back clauses that grant governments wide powers to restrict human rights on the grounds of national security. And the Courts are quick to remind all that these fundamental rights are not absolute, in fact these rights are subject to other factors prescribed by law. To illustrate this unfortunate position, let us consider in some detail the Criminal Code (Amendment) Act 2004 further amended in 2005, which amended section 52 of the Criminal Code Chap 10 Vol. III Laws of The Gambia 1990.
The Criminal Code (Amendment) Act 2004 further amended in 2005, which amended section 52 of the Criminal Code Chap 10 Vol. III Laws of the
Section 51 (1) of the Criminal Code creates the offence of Sedition. The offence criminalises a wide range of behaviour, including the following:
51. (1) a "seditious intention" is an intention-
(a) to 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;
to excite the inhabitants of The Gambia to attempt to procure the alteration, otherwise than by lawful means, of any matter in The Gambia as by law established;
(a) to bring into hatred or contempt or to excite disaffection against the administration of justice in The Gambia;
(b) to raise discontent or disaffection amongst the inhabitants of The Gambia; or
(c) To promote feelings of ill will and hostility between different classes of the population of The Gambia.
The test for seditious intention as defined in section 51 (2) rests on the probable consequences of publication rather than the subjective intention of the Publisher.
(2) In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences, which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.
Exceptions to section 5 (1) include where the sole intention of the maker of the statement was:
(i) to show that the President has been misled or mistaken in any of his measures;
(ii) to point out errors or defects in the Government or constitution of The Gambia as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects.
to persuade the inhabitants of The Gambia to attempt to procure by lawful means the alteration of any matter in The Gambia as by law established; or to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill will and enmity between different classes of the population of The Gambia.
52. (1) any person who -
(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
imports any seditious publication, unless he has no reason to believe that it is seditious; shall be guilty of an offence and liable for a first offence to a fine not exceeding fifty thousand Dalasis or to imprisonment for a term not exceeding two years or to both such fine and imprisonment and for a subsequent offence to imprisonment for a term not exceeding three years; and any seditious publication shall be forfeited to the State.
(2) Any person who, without lawful excuse, has in his possessions any seditious publication shall be guilty of an offence and liable for a first offence to a fine not exceeding five hundred Dalasis or to imprisonment for a term not exceeding one year or to both such fine and imprisonment and for a subsequent offence to imprisonment for a term not exceeding two years; and such publication shall be forfeited to the State.
Sedition laws of this nature have in the past been held to breach the guarantee of freedom of expression and have been repealed in most Common Law jurisdictions. The offence is defined in extremely vague terms, which contravene the requirement that restrictions on fundamental rights be 'provided by law'. The provisions appear to be aimed at protecting the government of the day than public order, a legitimate aim. Although they may claim to protect public order, they are excessively broad on any interpretation.
Another section of the Criminal Code is Section 41 which creates the offence of publishing false news with intent to cause fear or alarm to the public'. The main problem with such a provision is the difficulty of distinguishing between fact and opinion, the chilling effect such provisions have upon freedom of expression and the fact that they not serve any legitimate purpose for restricting freedom of expression. The offence is also too vague as it fails to define the terms 'causing fear and alarm', which are subjective. The other laws in respect of freedom of expression still in the Laws of the
The Official Secrets Act
This Act contains provisions which are in conflict with the right of the media to report freely. Under section 3, it is an offence for anyone to make a "sketch, plan, model or note" or to publish or communicate "any secret official code, word, sketch, plan, article, note or other document", which may be useful to an enemy. Journalists reporting on security issues run the risk of contravening the Official Secrets Act without any criminal intention on their part. A provision such as this is broadly stated and makes nonsense of the constitutionally guaranteed right to state-held information.
The Public Order Act
This Act empowers the Minister to make regulations providing for the prohibition of any publication or dissemination of any publication he regards as inimical to public security. It defines public security to include the securing of the safety of persons and property, the maintenance of supplies and services essential to the life of the community, the prevention and suppression of mutiny and rebellion and concerted defiance of and disobedience to a lawfully constituted authority and the laws of The Gambia.
From the foregoing, it is posited that the enforcement of these laws to the letter is at variance with the spirit for the promotion and protection of fundamental rights elaborated under the 1997 Constitution. The inconsistency becomes apparent particularly when the Constitutional guarantees are read with the domestic legislations, which deal with implementation of policies
and rights. The net effect of such a reading is that these rights look and sound fine on paper but in reality the people do not have effective access to enjoy these God-given rights.
The Criminal Code appears to be an instrument of choice for curtailing fundamental human rights of media practitioners; possible charges of seditious publication and false news publication are thrown around all manner of critical reportage of the Government. Severe bail conditions are at times imposed on people charged with any of these offences and are frequently detained beyond the seventy two hours mandated by the Constitution. It is under such an atmosphere that Judges are called upon to administer Justice according to Law.
Nelson Mandela once remarked that, "a critical, independent and investigative press is the lifeblood of any democracy". He also vowed that, "none of our irritations with the perceived inadequacies of the media should ever allow us to suggest even faintly that the independence of the press could be compromised or coerced". If anything, these words of Mandela unequivocally establish the unique and indispensable role of the press in a progressive society.
In attempting to understand the rationale for the existence of such laws in our books, one is forced to think loudly whether it is because we perceive the media to be a bunch of uncontrollable mediocre subjects, or enemies hell-bent on destroying society or even irresponsible and uninvited pests bound to cast a plague on society.
The development of the press in an environment laden with unfriendly media laws will no doubt prove very difficult if not impossible, as these laws will continue to negatively diminish the potency that lies in journalists and their trade. Essentially these laws only help to entrench self-censorship, which is not only unethical but also erodes the primary responsibility of the media, which is to hold government accountable to society.
Self-censorship forces editors and journalists to decide to drop stories or fail to investigate cases, not because such stories are not newsworthy but because of fear of the law. Consequently, self-censorship only helps to kill journalism at its root because it transforms the trade into mere propaganda and public relations gimmick.
Because of the force of these laws therefore, many journalists will be compelled to quit because of the limitations placed on their freedom of expression and of the media. These go beyond journalists as it will end up affecting the whole society by denying citizens the right to know and express themselves about their country and government. This can only endanger democracy, peace, stability as all avenues to allow free and peaceful expression are closed, and therefore making popular participation and change very difficult. In the final analysis, these laws can only help to promote a culture of silence, fear and rumours. And as long as these laws, most of them dating back to the colonial era stay in the statute books, creating a vibrant, free and independent media would be a daunting if not an impossible task. And Judges will continue to administer Justice according to Law but that would not be true Justice. It is time to repeal any such laws that are enervating the fundamental rights and freedom guaranteed by the 1997 Constitution.
Almami Fanding Taal is Legal Practitioner with special interests in Human Rights, Media Laws, Good Governance & Institutional Development