Thursday, January 27, 2022

Supreme Court Says Laws Criminalising Speech Are Unconstitutional


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By Yankuba Jallow

The Gambia Supreme Court has made a unanimous decision on Wednesday May 9, 2018 that the various laws criminalising speech are unconstitutional and struck them out of our law books. The court made this declaration while making a ruling on the suit brought by the Gambia Press Union and others, challenging the constitutionality of certain laws relating to media freedom.

The Gambia Press Union and others (the plaintiffs), on the September 22, 2014, instituted a suit against the State 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 Plaintiffs relied on the provisions of Sections 4, 5, 17, 24 (a) and (b), 25 (4), 207 and 209 of the 1997 Constitution of the Gambia.

The Plaintiffs’ Lawyer Hawa Sisay Sabally, relied on the provision of Section 25 (1) 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 181A deals with false publication and broadcasting.

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The plaintiffs in their view, argued that those provisions of the Criminal Code unlawfully interfere with the Constitutional rights of the Media on freedom of speech and expression. They argued that the definition of ‘false news’ isn’t straightforward to ascertain whether a publication is false or not. In addition, they argued that the State can prosecute any media practitioner on ‘false news’ because of its ambiguity.

State Counsel Binga D. told the Court that the State has conceded to the suit on all grounds except on Section 181A which deals with ‘false publication’. The State Counsel argued that if there are no restrictions provided, ‘false news’ can have catastrophic effects in our society.

The Supreme Court held that the right to freedom of speech is a fundamental human right and it is not absolute but rather, has restrictions as provided for under section 25 of the Constitution.

Accordingly, the court struck out criminal defamation which forms part of the Criminal Code, meaning aggrieved persons can only sue for libel in the civil courts. The penalty for this offence has been a minimum fine of D50,000 and maximum fine of D250,000 or imprisonment for at least one year or both fine and imprisonment.

The new section 173A of the Information and Communication Act enacted in 2013 (normally referred to as the internet law) has also been struck out using the same reasoning. This law makes it an offence for a person to spread false news against the government or public officials; or to caricature, abuse or make derogatory statements against the person or character of public officials. The penalty upon conviction is quite severe – a fine of 3 million dalasis or 15 years imprisonment or both such fine and imprisonment.

Regarding sedition which makes it unlawful for a person to bring into hatred or contempt or to excite disaffection against the person of the President, or the Government of the Gambia, the Court held that the provision of Section 51 of the Criminal Code (dealing with Sedition), are Constitutional, so far as it deals with the protection of the President and not the Government.

They argued that the Constitution does not exist in isolation but rather the unconstitutionality of any provision of the Law, must be looked at within the prevailing conditions of that society such as the political situation.

In addition, the Court held that parliament in setting out any restriction to a right, must set out the restriction within the provisions of the Supreme Court’s decision in the case of Ousainou Darboe and 19 others v The State, challenging the unconstitutionality of the provisions of a Statute, as well as have a legitimate aim. According to the Supreme Court, the restriction(s) must be reasonable, necessary in a democratic society and have the purpose set out under Section 25 of the 1997 Constitution.

The law on false publication and broadcasting, section 181A of the Criminal Code is also retained, the court held that it is constitutional. This law attracts a penalty of D50,000 minimum and D250,000 maximum or imprisonment for a minimum of one year.

“They are in accordance with the reasonable restriction as provided under the Constitution,” the Supreme Court held.

In a brief comment after the ruling, the GPU lawyer, Hawa Sisay Sabally said, “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.”

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