Freedom of expression is a cornerstone of democracy, enabling a functioning system that fosters citizen involvement in governance and accountability. Protection under the law is a right for every citizen. Presidents should not be idolized as demigods; no president is above the law, and all citizens are equal before it. Laws that provide special protection against defamation or insult to public officials are outdated and indefensible in a modern democracy. International law now recognizes that such officials should be more open to criticism than ordinary citizens, and laws offering them greater protection should be eliminated.
Shielding presidents or public officials from criticism based on their role or status is incompatible with the principles of modern democracy and contravenes international agreements and standards of freedom of expression.
There is a discrepancy between the Criminal Code and a section of the Constitution. In established democracies like the Gambia, criminal penalties for defamation are still enforced, with penalties nearly quadruple for defaming public officials compared to private individuals. It is imperative for African governments to eliminate outdated laws restricting freedom of expression and align their legislation with international standards of freedom of expression.
Freedom of Expression is a fundamental right for all citizens, and individuals should not face criminal charges for simply expressing their views. In a democracy, there should be a broad tolerance for criticism. Laws that criminalize insults to the President do not belong in a democracy that upholds freedom of expression.Those who make claims must provide evidence. There is a distinction between what is true and what can be broadcast or published. Accuracy without evidence can lead to criminal liability. In my view, the laws of Sedition and Criminal Defamation, relics of colonial rule, are unconstitutional. They are akin to Sedition laws, which have been declared unconstitutional. The Supreme Courts of Lesotho and Kenya ruled Sedition laws unconstitutional in 2018, and America does not have hate speech laws. The US Supreme Court has consistently invalidated hate speech laws as unconstitutional. In America, the remedy for hate speech is more free speech, or as Justice Louis Brandeis stated, “more speech, not enforced silence.” What benefits America should not be detrimental to the Gambia.
Existing laws are sufficient to address the excesses of Gambians, both online and offline. If a citizen is accused of libel or defamation in mass media or social media, our judiciary is available to deliver justice. Despite its dangerously vague clauses, the Sedition Law provides enough guidance for the President, government officials, and citizens to maintain decorum among journalists and the public in both online and offline interactions. However, allowing dishonest politicians to regulate media and social media heralds the demise of this influential fourth branch of government. The media, particularly digital media, has been the last refuge for the common person and the only significant power that oppressed citizens have over the government. Without it, the government, which already controls and dictates all content, would have unchecked power.
The sedition law is a remnant of colonial rule. It was introduced into the statutes of Ghana (formerly The Gold Coast) in 1934, criminalizing acts that incited hatred or disaffection against the monarchy or the government. Similarly, The Gambia adopted this colonial inheritance in 1942, with offenses mirroring those of the Gold Coast, targeting any actions that would incite hatred or disaffection towards the monarchy, its heirs, or the governments of the United Kingdom or The Gambia. Through the Adaptation of Laws Order of 1954 and the Adaptation of Laws (Miscellaneous Provisions) Order of 1964, sedition was codified under Section 50 (2)(a) of the Criminal Code, defining it as an intention to incite hatred, contempt, or disaffection against the head of the government, the governor of a state, or the established government of The Gambia, or against the administration of justice in The Gambia.
Prior to its incorporation into local law, India had adopted the Sedition Law in 1870, with provisions akin to those in The Gambia, Nigeria, and Ghana. The United States also enacted a Sedition Law in 1789, which outlawed the publication of false, scandalous, and malicious writings against the government, Congress, or the President, with the intent to defame or bring them into contempt or disrepute.
However, the American approach allowed the truth as a defense under its sedition law, contrasting with the British stance and that of its former colonies, which held that the greater the truth, the greater the sedition. The First Amendment to the U.S. Constitution ultimately addressed this, ensuring non-interference with freedom of expression, which significantly impacted the application of the Sedition Law.
In 2018, the Gambia Press Union (GPU) initiated a landmark legal challenge against the Sedition law in the Supreme Court of The Gambia. The case, GPU v The Attorney General, represented a pivotal moment in advocating for free speech and press freedom. The GPU courageously contested specific sections of the Criminal Code, particularly those concerning Sedition and the dissemination of false news, as unconstitutional.
The Supreme Court, on May 9, 2018, affirmed the constitutionality of the Criminal Code’s provisions on Sedition (with the exception of seditious acts against the government) and the publication of false news or information. Importantly, the court acknowledged that government criticism should not be classified as Sedition. Nonetheless, it ruled that the remaining definitions of ‘seditious intention’ and the crime of false news in the Criminal Code constituted a necessary, reasonable, and proportionate restriction on the right to freedom of expression.
The ruling in the GPU vs. The Attorney General case marked a significant juncture for press freedom in The Gambia, striking a nuanced balance between protecting national unity and respecting constitutional freedoms such as speech and expression. This verdict had profound implications, igniting a vital discussion on the boundaries of free expression.
I contend that the Sedition Law, which undermines the freedom of speech enshrined in our Constitution, is incompatible with the 1997 Constitution, especially since it does not incite public disorder as outlined in the Constitution. We have evolved beyond the uneducated or unruly society envisioned by our colonial rulers when they introduced this law. The constitutional safeguard is insufficient, particularly when the veracity of published material is not a valid defense. Maintaining the Sedition Law in its current state, even if it does not contravene the constitutional guarantee of free expression, equips a corrupt government or despot with a potent tool for oppression. We must not erode the liberties secured from our colonial rulers by clinging to laws they crafted for their own ends. The founding fathers’ decision to ensure freedom of speech, inclusive of the right to critique, is commendable, and any efforts to undermine it, barring constitutional provisions, must be opposed. Public officials should welcome criticism. When a citizen or writer oversteps, recourse to libel law is appropriate, where the plaintiff’s character and reputation are necessarily challenged. Critique is vital in a free society.
