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Momodou
Denmark
11634 Posts |
 Posted - 18 Sep 2009 : 19:01:44
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This is a long but interesting commentry from The Daily News public opinion
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Armory of Legal Gadgets
By Saikou Jammeh
12 years ago (1997) when the constitution of the Second Republic came into being entrenching the civil liberties including Freedom of Expression and clearly defining the role of mass media, reporters and editors predictably celebrated, and pointed regally to Section 25 (1) assured of being provided with an iron clad protection.
An analysis of how the government soon afterwards, opens an armory of legal gadgets, some dating back to colonial era that made backdoor passes seeking to, and indeed muzzling freedom of expression and of the press. Until such time that sedition and criminal defamation laws ceases to be part of the Gambian constitution, then it remains a good law and must be abided to by all and sundry.
Such was the verdict reached by Justice Emmanuel Fagbenle recently as he convicted and sentenced the six journalists for alleged seditious publications and criminal defamation, in a suspense-filled climax of a court room that has obsessed the nation. Going by the provision of section 25 of the 1997 constitution, which states that; “Every person shall have the right to freedom of speech which shall include freedom of the press and other media,” it gives guarantees and assurances to enable the Gambian media its liberty and license to publish with protection.
This provision is not merely an expression of political faith without binding legal force, but it is as well a declaration of policy in favor of the public discussion of all public questions… any amendment of which would mean that the government has to stage a referendum.
Going further by the constitutional provisions, one would realise that the PRESS is more especially called upon to maintain the principles of free discussion in case of unpopular sentiments. Hence Section 207 states that, “the Press and other Media shall at all times be free to uphold the principles, provisions and objectives of the responsibility and accountability of government to the people of The Gambia.”
Thus looking at the expectations and realities of the performance of the media in The Second Republic, one can observe that the clear-worded constitution embraces democratic principles by recognizing the important role that the PRESS, acknowledged as the FOURTH ESTATE, plays in building awareness and ensuring accountability of public trustees.
However, one does not need to read too far in the same constitution to notice that these guarantees have been negated by other statutes that enables free working of the media to be suppressed.
As a result the courts have repeatedly held that section 25 is not absolute. Thus they are constantly called upon to decide whether actions taken by the PRESS are legally permissible. And as such, never in the history of the country has the meaning of free speech been subject to such sharp controversy as it is in this new, but different Gambia.
The enactment of such legislations could be described as a model colonial, tyrannical provision hiding under the cloak of national interest, national security and public safety.
The government does not stop there; but went further to pass legislations that seek to, and indeed muzzles freedom of speech by enacting laws that take away the very freedom given by the constitution.
These include the Criminal Code Amendment Act 2005… in it the sedition and criminal defamation. The Public Order Act, Official Secret Act, False News publication, are among the list.
The co-existence of these inconsistent binding legal forces in our law books is what most worries many legal experts. With laws such as sedition which makes speech criminal in vague terms, very simply the constitutional provisions that guarantee freedom of expression are not as protective as the press had thought?
Mr. Almami Fanding Taal, a legal expert harping on the inconsistency of the constitutional guarantees when read with domestic legislation that deals with implementation of policies and rights, pointed out that the net effect of such reading is that these rights sounds fine on paper but in reality, the people do not have access to enjoy these God-given rights.
speaking in one of such occasions to assess the effect of the existing media laws slammed the domestic legislations as ‘unnecessary’. It was his view that these are not only intended to cripple the media (both economically and politically), which he said is undemocratic, but also it’s not in line with the international protocols to which The Gambia is a signatory.
Thus it has become even more important to determine the true limits of freedom of expression so that writers and speakers may know how much they can properly say and write. And government, to be certain and very specifically sure of how much they can suppress.
And since the subject of freedom of expression is still gone to a problematic limit, it is necessary to determine where the line runs between utterances which are protected by constitution and other legal gadgets from control and those which are not.
It appears that throughout these controversies that erupted since the coming into being of these legislations, little or no attempts have been made at the legal definition of speeches that shall fall under the limitation. And they are left so vague that anyone can become a victim. In the instance where a foreign national in a recent court case was convicted and sentenced for branding the president as ‘greedy’ and ‘a dictator’, which the state felt is derogatory.
Turning from principles to precedents, over 19 criminal prosecutions involving speeches and or writings of newspaper articles were followed after the enactment of these widespread legislative consideration. Ranging from false news publication, seditious publication and criminal defamation – out of these prosecutions 16 journalists were convicted.
These include the case of Lamin Fatty a journalist at the then Independent newspaper, who was sentenced to a fine of D50, 000. Followed by the case of Fatou Jaw Manneh on charges of sedition, sentenced to a maximum fine of D250, 000; Mam Sait Ceesay and Malick Jones were though freed of false news charges, but it was not long enough for Abdul Hamid Adiamoh to be convicted for an alleged seditious publication after he published the image of a child who dodges from school to pick scrap metals.
He was again arraigned shortly afterwards for publishing false news when he admitted publishing by mistake the sacking of two ministers amid President Jammeh’s firing spree.
Mr. Pap Saine, Managing Editor of The Point newspaper was also charged for false news publication, but the charges were dropped. And the recent case of six journalists was a notable one. Mr. Sam Sarr, Managing Editor and Emil Touray Assistant Editor of Foroyaa, the latter of whom is also the Secretary General of The Gambia Press Union charged and convicted of criminal defamation and sedition. Alongside Mr. Pap Saine, the Managing Editor of The Point newspaper and Sarata Jabbi-Dibba and Pa Modou Faal the Vice President and Treasurer of GPU.
In each of these cases, one could observe that several decisions declared that the constitutional guarantees of free speech be disregarded by these domestic legislation.
Even though the purpose of most of these publications had evidently been to protect parties in the free publication of matters of public event and public measures and to enable every citizen at anytime, to bring the government and any person in authority to the bar of public opinion. This is ofcourse, by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.
For instance, in the recent case involving six journalists Mr. Sam Sarr asserted that his reason for publishing the said article, which the state claimed among others tarnished its reputation, is in line with the principle of expression of divergent and dissenting views.
‘The principal question’ Mr. Sam Sarr then asked was whether the President can say whatever he likes whether true or untrue, insulting or derogatory and that no one could give a fitting response.
Mr. Pap Saine also said he published in the interest of public interest in accordance with the constitution of The Gambia and the Universal Declaration of Human and People’s Right which The Gambia is a signatory to. The veteran journalist also said it would be unfair for him to publish the president’s statement and turn down that of the Gambia Press Union, which is in reaction to the former.
And since there are few judicial precedents to the contrary, judges were either rightly or wrongly, but surely wrong in holding as they did, that sedition remain a good law drawing inspiration from precedents instead of being in close contact with these old and golden ideas of social justice.
Accordingly, Justice Emmanuel Fagbenle in his judgment weight-down Mr. Sam Sarr and Pap Saine’s view of publishing divergent views of an international standard and in accordance with good governance to favor the decision held in the case of Lamin Waa Juwara that freedom of expression is not absolute.
Fagbenle had himself admitted that the decision in this case that freedom of expression can be restricted for ‘national interest, public safety and national security’ remain a good guide. Throughout the cases involving sedition, emphasis was laid on test of criminality and not who is the judge of criminality of the utterances. This leads to a direction of the law of sedition that makes the test-blame of the government and its officials because it brings into disrepute and tendency to ‘overthrow’ the government.
But it would be a rhetoric question to ask whether the state can punish all words which have some bad tendencies. Let’s walk along with history to trace the genesis of sedition as it relates to freedom of speech and of press. In the book Versions of Censorship, the author argues that the controversy over liberty of press was a conflict between two views of government. First of which sedition is a product of, hold the view that government and its authorities must not be subjected to any censure that would tend to diminish their authority.
This people hold the view that the people should not make adverse criticism in newspapers but only through their representatives. Whilst the other view holds that rulers are servants of the people who might therefore find fault with their servants and discuss questions of their punishment. The first developed the law of sedition and defined as; “without lawful excuse or justification of written or blame of any public man of the law of any intention on the part of the defendant to produce disaffection or excite an insurrection it was enough if he intended to publish the blame because it was unlawful in him merely to find fault with his masters and betters”.
If one were to ask where we are heading to as a nation, one could conclude that the Gambia is heading to the Eighteenth Century principles, as evident in the case of the six journalists wherein the Director of Public Prosecution Richard N. Chenge told the court that the journalists could have written to the office of the President expressing their dissatisfaction regarding his remark.
Instead of allowing the free flow of information as Sam Sarr upheld even after his conviction, the DPP said writing such reaction as of GPU on newspapers to a wide audience amounts to a criminal offence.
Thus the DPP could be termed to, without any prejudice or intent to defame him in the conduct of his business, belong to those who shared the view that rulers are masters and beyond public criticism of such nature where-in he told the court that the convicts, now freed journalists, should have written to the office of the president to express their disaffection over his comments instead of writing to a larger audience.
So you could realise that sedition law goes beyond the time when the colonialist introduced it among other laws such as Newspaper Licensing, False Publication, etc. Edward Francis Small, the then editor of Weekly News told the British colonialist that such laws are ‘four fold Damocles’ intended to kill the media. He further told them that such laws are not in line with British colonial laws on the principle of freedom of press. Given the fact that at the time, the British had repealed such laws and replacing them with freedom of expression clauses in Britain such as Bill of Rights.
Going by the recent political developments towards the media, one could surmise again that liberty of press has been rendered a mockery and delusion and the phrase itself a by-word, because if everyone man is at liberty to publish what he or she pleases, the public authorities might not punish him or her for harmless publication.
To this end, the analogy drawn by Galsworthy of the Russia system after the second revolution that is very appropriate, in the sense that the government did not censure speech or written word, but punish as it deem fit after publication:
“The other day in Russia, an Englishman came on a street-meeting shortly after the first revolution had begun. An extremist was addressing the gathering and telling them they were fools to go to war, and so forth. The crowd grew angry, and soldiers were making a rush at him; but the chairman, a big burly peasant stopped them with these words. Brothers you know that our country is now a country of free speech. We must listen to this man; we must let him say anything he will. But brothers when he is finished, we will bash his..."
Source: The Daily News
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A clear conscience fears no accusation - proverb from Sierra Leone |
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