By Lamin J
Darbo
As if to argue that His Excellency, Sheikh
Professor Alhaji Dr Yahya Jammeh (the Professor) is entitled
to some leeway in governmental lawlessness, they interpose the
physical symbols of development – coastal roads, GRTS,
Airport, the University - to excuse the persistent human
rights violations long a fixture on the Gambian public
landscape. Ordinary Gambians travel this road, and so do
non-Gambians who frequent the online community to irritate the
advocates of public accountability under the rule of law. In
the latter cases, we are dealing more with indifference to
suffering rooted in ignorance on the one hand, and fantasy on
the other. As irritating as this category of ostensible
supporter, they are thankfully in no position to do actual
harm to the Professor’s political
critics.
The same cannot be
said of the judicial arbiters of baseless political
prosecutions fast becoming the key fare in the country’s
Magistrates Courts. With the focus on controlling speech
unflattering of the Professor and his government, no area in a
politicised landscape of criminal litigation is more critical
than the newly discovered, all-encompassing “offence” of
sedition. Over the past two years, Gambian citizens,
residents, and tourists were prosecuted and convicted for
alleged sedition offences, even though, in light of the
controlling law, none of the allegations were proved to the
requisite criminal standard of beyond a reasonable
doubt.
What is sedition,
and what conduct is legitimately considered seditious, and
therefore properly liable to criminal prosecution and
sanctions?
According to
the Oxford Dictionary of Law, 6th edn.,
Oxford University Press, 2006), sedition is:
The speaking or
writing of words that are likely to incite ordinary people to
public disorder or insurrection. Sedition is a common law
offence (known as seditious libel if the words are written) if
it is committed with the intention of (1) arousing hatred,
contempt, or disaffection against the sovereign or her
successors (but not the monarchy as such), the government of
the UK, or either House of Parliament or the administration of
justice; (2) encouraging any change of the law by unlawful
means; or (3) raising discontent among Her Majesty’s subjects
or promoting ill-will and hostility between different classes
of subjects. There must be an intention to achieve
these consequences by violence and disorder
(emphasis added)
Although the
foregoing is a UK-focused definition, the crux of any sedition
offence in jurisdictions faithful to democratic
accountability and the rule of law must remain utterances
advocating the forceful overthrow of government. And there
must be immediate danger of this outcome occurring. Sedition
law in New Zealand mirrors the UK standard, and so does the
law and jurisprudence in Canada, where a requisite element of
pertinent legislation centres on the employment of “force as a
means of accomplishing a governmental change”.
For a more incisive understanding of the jurisprudence
of sedition as a dispute between government and its opponents,
the preeminent common law jurisdiction offering the greatest
enlightenment is the federal judiciary of the United States of
America. In this jurisdiction, Government is up against the
formidable barrier of the First Amendment to the effect that
“Congress shall make no law … abridging the freedom of
speech, or of the press…”. Notwithstanding a command
couched in the imperative, there was never a serious
suggestion that constitutional literalism is conclusive on a
plausible interpretation of the free speech clause of the
First Amendment.
Accepting that speech may be proscribed under
appropriate circumstances, the Supreme Court (the Court) held
in Schenck v United States that
"The question in every case is
whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has
a right to prevent." Elaborating on his understanding of the
“clear and present danger” test, Justice Olive Wendell Holmes
Jr (Justice Holmes), author of the
Schenck decision, but a dissenter
from the majority application of that opinion in
Abrams v United States, argued for
the legitimate proscription of speech only where it is
productive of, “or is intended to produce a clear and imminent
danger that will bring about … certain substantive evils that
the United States … may seek to prevent". In other words,
speech may only be excluded from protection where it
“threatened immediate interference with the lawful and
pressing purposes of the law".
In the Court’s voluminous
First Amendment jurisprudence touching on sedition, the “clear
and present danger” test went through different formulations
since its initial articulation by Justice Holmes in 1919. With
its decision in
Brandenburg v
Ohio, the Court appears to have embraced the
immediacy test first enunciated in
Abrams when it held that no state
may "forbid or proscribe advocacy of the use of force … except
where such advocacy is directed to producing imminent lawless
action and is likely to incite or produce such action."
For our purposes, it
suffices that the common law world’s most prestigious
jurisdictions underscores the need for advocating a violent
overthrow of government before speech may be proscribed on
seditious grounds. With that legal principle as backdrop and
central element of sedition-related offences, is it even
remotely arguable that the leadership of the Gambia Press
Union (GPU) were engaged in seditious activity when it issued
a press release disputing the Professor’s version of Deyda
Hydara’s murder? Was Halifa Sallah properly accused of
sedition when he embarked on a fact finding mission to
“challenge”, in the words of the amended charges against him,
“the government policy of screening witches”? Were the
Fultons, and Fatou Jaw Manneh, properly charged, prosecuted,
convicted and sentenced of seditious allegations? In all of
these instances, the answer must be an emphatic
no.
Under the common
law, sedition is only provable where there is an intention to
achieve a change of government through violence
and disorder, and this strongly suggests that a
mere allegation of seditious intent by the State is not
dispositive of the substantive allegation of sedition. Even if
the alleged expressions at issue in all the cases are conceded
as having occurred, the question for a presiding Magistrate
must be the character that takes speech out of the realm of
legitimate public debate into the arena of agitation for an
immediate, violent overthrow of the Professor’s government? On
the foregoing definition, and jurisprudential discussion - and
they must be seen as underscoring the proper doctrinal
understanding of sedition even in The Gambia - the answer has
to be negative. It is vital to note that the inferior nature
of the Criminal Code makes it a clearly subordinate law to the
1997 Constitution of the Republic of The Gambia (the
Constitution). Let us examine what the Constitution, with all
its tragic flaws regarding the allocation of national power to
the constituent branches of our Government, says about the
type of speech at issue in all the sedition cases so far
alleged, and, or, prosecuted, before magistrates in The
Gambia.
Chapter IV of the
Constitution deals with the “Protection of Fundamental
Rights and Freedoms”, with Section 17 stating
thus:
(1)
The
fundamental human rights and freedoms enshrined in this
Chapter shall be respected and upheld by all organs of the
Executive and its agencies, the Legislature and, where
applicable to them, by all natural and legal persons in The
Gambia, and shall be enforceable by the Courts in accordance
with the Constitution.
(2)
Every
person in The Gambia, whatever his or her race, colour,
gender, language, religion, political or other opinion,
national or social origin, property, birth or other status,
shall be entitled to the fundamental human rights and freedoms
of the individual contained in this Chapter, but
subject to respect for the rights and freedoms of
others and for the public interest
(emphasis added).
According to
Section 25(1)(a) of the Constitution, “every person shall have
the right to freedom of speech and expression, which shall
include freedom of the press and other media”. I merely note
that Section 25(4), quoted in italics below, attempts to claw
back the rights explicitly granted in 25(1) and
(2):
The freedoms
referred to in subsections (1) and (2) shall be exercised
subject to the law of The Gambia in so far as that law imposes
reasonable restrictions on the exercise of
the rights and freedoms thereby conferred, which are necessary
in a democratic society and are required in the interests of
the sovereignty and integrity of The Gambia, national
security, public order, decency or morality, or in relation to
contempt of court.
Suffice to say that
“the fundamental freedoms”, even if theoretically, are
entrenched, and are therefore derogable only in an emergency,
and expressly via an Act of the National Assembly (NA) (see
Section 35(1) of the Constitution). If such a power is invoked
by the NA, Section 35(2) appears to authorise the
“reasonable”, if temporary, suspension of Chapter IV rights:
Nothing contained
in or done under the authority of such an Act shall be held to
be inconsistent with or in contravention of sections 19, 23,
24 (other than subsections (5) to (8) thereof) or 25 of the
Constitution to the extent that it is reasonably justifiable
in the circumstances arising or existing during a period of
public emergency for the purpose of dealing with the situation
On the facts of all
sedition allegations, and, or prosecutions that came before
Magistrates in the Gambia, the highlighted portion of Section
17 (2) of the Constitution is not engaged. Neither are
sections 25(4), and 35 (1) and (2), as quoted above. Even
though the Fultons were engaged in harmless gossip not
deserving of serious attention from the ultimate custodian of
executive power, Fatou Jaw Manneh’s alleged newspaper
interview, and views therein expressed, must be regarded as
mere opinion, clearly in the public interest in furtherance of
democratic conversation, and unquestionably protected by the
Constitution. The interview was not widely disseminated as no
mass media distributed its content to the wider Gambian
population, but even if it were, no reasonable person could
construe its purpose as agitating for immediate violence and
disorder against the Professor’s government. Of more practical
significance, it provoked no acts of public disorder, and
exhibited no discernible “intention to achieve”
any outcome through “violence and disorder”.
As to the staple
allegation of causing “fear and
alarm in public”, the prosecution evidence consistently
falls below the requisite standard for sustaining that
particular charge in all so-called sedition prosecutions. It
is, for example, laughable that a tourist complaining about
high transport fares, and allegedly sourcing that
responsibility in the Professor, should be regarded as causing
“fear and alarm in public”.
In this string of cases, all convictions, and
sentences, were unsafe, unlawful even, as no law was violated
in the absence of any situation, actual or potential, remotely
approximating a public emergency in the country. These
sedition prosecutions represented unreasonable and unlawful
restrictions on 25(1) in so far as the Constitution, even if
in theory only, remains the supreme law of the country.
As for the
allegation that Halifa’s fact finding mission challenging “the
government policy of screening witches” constituted seditious
activity, the simple retort is that he was merely responding
to an issue placed in the streams of public life and discourse
by the Professor. Ditto the GPU’s response to the version of
events advanced by the Professor on the gratuitous murder of
Deyda. Leaving aside the substantive issues underlying these
very public disputes, what was said, and, or done on either
occasion could not, in law, possibly amount to sedition, or
seditious conspiracy.
The magistrates who
suffered the misfortune of presiding over the concluded
sedition cases demonstrated serious deficiencies in their
grasp of the broad doctrinal principles of public expression
in a ‘democratic’ society, not to mention the intricate, if
compromised architecture of protected speech under Gambian
law. This conclusion is unavoidable when magistrates, in
rendering convictions, openly advanced, as justification for
their unlawful decisions, misconceived contentions that the
Professor has brought a lot of development, and that those who
hold contrary views are properly accused of sedition. I am
willing to concede that the coastal roads, GRTS, the new
Airport building, the University, and other infrastructural
projects, represent external manifestations of development,
but they may not be interposed as justifications for placing
the Professor and his government beyond criticism, and as a
basis for convicting defendants, unlawfully before them, on
manufactured sedition allegations..
Clearly, freedom of
speech and expression must be seen as entrenched
Constitutional clauses, even if theoretically, and as such,
may not be capable of control by inferior legislation in the
Criminal Code. There is no question that the current
utilisation of sedition law strikes at the heart of
constitutional protection of expression, and it is
impermissible to decide that conflict in favour of inferior
legislation. This is not to argue that even in the high
threshold realm of public life and affairs, speech and
expression should always be completely unfettered in The
Gambia. Under appropriate circumstances, it is not
inconceivable for the claw back provisions to be legitimately
invoked, but none of the seditious allegations, prospective
prosecutions, and, or, convictions over the past two years are
defensible in law.
As the
jurisprudence on sedition emanating from the magistrates
courts is completely unedifying, it is about time the
insidious legislation at the heart of such consistent judicial
chicanery is fully tested for constitutional compatibility at
the High Court, and beyond, if necessary. I take the view
that the higher judiciary must not remain largely untested on
issues pertaining expression if only because we must have a
proper perspective on the judicial philosophy of current
judges vis-à-vis socio-political questions touching
on human rights. As expression is likely to remain a
contentious area of public life even in a post-Professor
Gambia, the need to develop our jurisprudence in this area
cannot be overemphasised.
With Halifa, and
the GPU in the frame over the “government policy of screening
witches”, and the rejoinder on Deyda respectively, a High
Court date on sedition is looking ever more likely. Then
again, the cases may never fully come to court as the decision
to proceed resides in the exclusive domain of the prosecuting
authority, and for such high profile defendants, we are
talking the Professor himself. With intense behind-the-scenes
diplomatic and other pressure likely to provide an escape
route in these cases of dangerous overreach by the Professor,
a court date is looking ever more unlikely, official bluff
notwithstanding. In the event the appellate system is
ultimately engaged in these pending sedition matters, I
encourage the Gambia Bar Association, and individual lawyers
who feel able, to consider filing amicus briefs for the
appellants after securing the requisite High Court
permission.
For what it is
worth, the Professor is
advised that The Gambia under his stewardship is getting
progressively heavier for its foundations, and the uncertainty
attendant to this state of affairs should alarm any right
thinking person.
Lamin J
Darbo
