GAMBIA PRESS UNION POSITION PAPER ON THE CRIMINAL OFFENCES BILL, 2022

 GAMBIA PRESS UNION POSITION PAPER ON THE CRIMINAL OFFENCES BILL, 2022

Introduction

1. The Gambia Press Union in its discussions with the Government of the Gambia, and other relevant stakeholders has raised the issue for reform of all laws that negatively impact on the media and stifle freedom of speech and expression. Against the backdrop of the review, and parliamentary consideration of the Criminal Offences Bill, 2022, this position paper seeks to examine the legal framework of these Bills to present a case on how they meet (or fail to meet) the standards necessary for the protection of media practitioners in The Gambia.

2. The proposed Bill seek to repeal the Criminal Code^[1] which has provisions dealing with sedition, libel, defamatory matter and false publication and broadcasting. These are found in Sections 51, 52, 59, 180, 181A,178,179.

Position on Criminal Offences Bill, 2022

3. In Gambia Press Union and 3 others v Attorney General, SC Civil Suit No. 1/2014, the Supreme Court held that sedition as prescribed in these sections is constitutional insofar as the restrictions relate to the person of the President only. However, the section is declared unconstitutional in so far as the restrictions relate and extend to the Government.

4. The decision of the Supreme Court (as per its findings on section 51 (a)) upholding sections 52, 52A, 53, 54 on sedition, and section 59 on publication of false news with intent to cause fear and alarm to the public, is not in line with current trends and best practices decriminalizing sedition. The Criminal Codes of Uganda, Ghana and Kenya, for example, no longer provide for the offense of sedition. The ECOWAS Community Court of Justice also found in Federation of African Journalists and 4 others v. The Republic of the Gambia, suit No: ECW/CCJ/APP/36/15, Judgment No. ECW/CCJ/JUD/O4/18 that sections 51, 52, 52A and 59 of the Criminal Code violated article 6, 9 and 12 (2) of the African Charter on Human and Peoples’ Rights, article 9, 21 (4) and 19 (2) of the ICCPR and article 66 (2) (c) of the Revised Treaty of ECOWAS.

5. It is thus in line with international best practice, and in conformity with the ECOWAS Court Judgement that Articles 51, 52, 52A, 53, 54 of the Criminal Code on sedition/ seditious intent be deleted from the legal framework of The Gambia through the promulgation of the Criminal Offences Bill. It is also in line with the ECOWAS Court judgment and international best practice that section 59 of the Criminal Code on publication of false news with intent to cause fear and alarm to the public be deleted from the legal framework of The Gambia.

6. The Gambia Press Union thus welcomes the non-inclusion/ non-replication of the aforementioned sections in the Criminal Offences Bill.

7. Sections 178, 179, 180 and 181 of the Criminal Code define libel, defamatory matter, publication and unlawful publication. Section 181A creates the offence of false publication and broadcasting. Section 182 provides for cases in which publication of defamatory matter is absolutely privileged and section 183 deals with cases in which publication of defamatory matter is conditionally privileged. Good faith as used in these sections is explained in section 184.

8. In Bai Emil Touray and 3 others v. The Attorney General, Supreme Court Suit No.001/2017, which was a suit challenging the said provisions, the Supreme Court held that:

Sections 178, 179 and 180 of the Criminal Code are inconsistent with the constitutional guarantees of free speech and freedom of the press and other media as respectively enshrined in section 25 (1) (a) and (b) and section 207 of the Constitution. The restrictions they place on the exercise of those rights and freedoms, absence of all the necessary safeguards to protect the exercise of those rights and freedoms, are neither reasonable nor necessary in a democratic society, particularly in the context of the Constitution. They fail to demonstrate a legitimate aim in preserving any of the interests outlined in sections 25 (4) and 209 of the Constitution. They are declared to be ultra vires the Constitution and therefore invalid.

9. The Supreme Court further observed that sections 181, 182, 183, and 184 of the Criminal Code, whose validity had not been specifically questioned in this suit, relate to publication or broadcasting of defamatory matter, albeit in the form of definitions and defences to prosecution. The strength of the sections, however, hinged on sections 178, 179, and 180 of the Criminal Code which the Court had declared unconstitutional. The Supreme Court thus held that the continued existence of these sections will therefore only be of academic value.

10. The Gambia Press Union welcomes the non-inclusion of the aforementioned provisions in the Criminal Offences Bill, as it is in line with this Supreme Court decision, Constitutional guarantees as prescribed in the 1997 Constitution of The Gambia, and International best practice that these provisions will be deleted from the legal framework through the promulgation of the Criminal Offences Bill.

11. In Gambia Press Union and 3 others v Attorney General (supra), however, the Supreme Court held that section 181A on “false publication and broadcasting” is constitutional. That provision states:

• A person who willfully, negligently or recklessly, or having no reason to believe that it is true, publishes or broadcasts any information or news which is false in any material particular commits an offence and is liable on conviction to a fine of not less than fifty thousand dalasis and not more than two hundred and fifty thousand dalasis or imprisonment for a term of not less that one year or both  fine and 
• It shall be no defence to a charge under subsection (1) that the person did not know that the information or news was false, unless it is proved that adequate measures were taken to verify the accuracy of the information or news.”

12. This provision has unfortunately been replicated in Section 154 of the Criminal Offences Bill.

13. It is the contention of The Gambia Press Union that the maintenance of the provision on false news and publication of false news and their enforcement amounts to a restriction that is not within the list of limitations set out in section 25 (4) and 209 of The Constitution of 1997, Article 19 (3) of the ICCPR, and Article 27 (2) of the African Charter.

14. The said provisions of the Criminal Code have a chilling effect in that they criminalize certain forms of speech which leads to self-censorship on the part of journalists to avoid being arrested, detained or prosecuted and convicted. These provisions also restrict the public and journalists from seeking, receiving and imparting information and ideas which are rights provided for in Article 9 of the African Charter and Article 19 of the ICCPR. The Gambia is therefore in violation of these Articles.

15. The false publication provisions provide for restrictions that are couched in vague and imprecise language. They depend on the subjective emotions of the persons reading the publications.

16. The use of a subjective test to determine whether an offence has been committed leads to uncertainty in the law as a result of which the legal consequences of one’s actions cannot be predicted and the provisions could be abused by the State.

17. The provisions also do not pursue any legitimate aim set out under Section 25 (4) and 209 and under international law. The UN Human Rights Committee (HRC) in its General Comment No. 34, UN DOC. CCPR/C/GC/34 (2011) in Paragraph 13 stated that: “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.”

18. Also in paragraph 22, the Committee states that “restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they were predicated.” It was further stated in paragraph 35 as follows:

“When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.”

19. Gambia Press Union further contends that the penalty provisions for false publication are severe and cannot be said to be the least intrusive measures available considering the fact that the rights at stake are the right to freedom of speech and expression and the right of free independent media. Consideration also has to be made for the already established Media Council of The Gambia (MCG) which is an independent media regulatory body tasked with the governance of journalism standards in the Gambia, with powers to regulate the conduct of journalists- including through its complaints and ethics mechanism which strives to hold journalists accountable for their actions.

20. It is thus the Gambia Press Union’s position that the aforementioned Supreme Court decision on section 181A of the Criminal Code be revisited, and the provision as replicated in the Criminal Offences Bill be deleted.

Recommendations

21. In due regard to the Gambia Constitution of 1997, conventions and treaties to which The Gambia is a party, there is still an urgent need for The Gambia to revisit its position relating to sedition and false publication by reviewing the laws that affect the media. Consequently, The Gambia Press Union makes the following recommendation:

1. That the Committee consider giving full observance to the constitutional guarantees on freedom of expression and the media as provided for by the Constitution of 1997,

1. That in its report and recommendations to the plenary, the Committee considers The Gambia’s obligations under relevant international human rights instruments as examined herein, in particular its obligation under article 66(2) (c) of the ECOWAS Treaty by ensuring full respect for the rights of journalists.

III)       In this regard, the Gambia Press Union urges the Committee to remove provisions relating to sedition and false publication under the Criminal Offences Bill, 2022 in order to give full meaning to the values of the Constitution relating to media freedom as well as the ECOWAS Treaty, the African Charter, the International Covenant on Civil and Political Rights, and the ECOWAS Court of Justice Ruling on the subject.

Conclusion

22. The Gambia Press Union welcomes the drafting of a new Criminal Offences Bill, 2022 which will go some way in addressing the media law reform agenda of members of the media fraternity in The Gambia. As we strive to achieve a democratic state where rights are respected, the right laws need to be adopted and implemented.

22. The Gambia Press Union expresses its fervent hope that the Committee would give due consideration to its position on the Way Forward for media law reforms in The Gambia articulated in this document.

^[1] See section 346 Criminal Offences Bill