Threat to Free Speech Right in the Draft Constitution Section 44 (c) Spotted!!
Alagi Yorro Jallow
Fatoumatta: Has the draft constitution mid-wifed a free and democratic Gambia? Is the state still a predator of human rights and social justice? Has the chapter on Fundamental Rights and Freedom acted as an incubator of good governance in the Gambia?
Fatoumatta: The drafters of 2019 Constitution motivations are spectacularly suspicious. Silencing the voices of criticism is a perennial preoccupation of power, but we know that a far more penetrative form of spelling the end of social vitality and relevance is incurred when human voices are silenced. The withdrawal of the “Parental insult bill ” by Attorney General and Justice Minister essentially is the same provision included in the Draft Constitution at section 44 (2) (c) thus:- the right to freedom of expression does not extend to the uttering of abusive or threatening speech or writing that causes feelings of ill-will, disaffection or hostility” Sedition laws approved by the Gambia Supreme Court in 2018, a cursory look at our Criminal Code law shows that there are some provisions contained therein that may be used for this purpose, though some of penalties that are obsolete and inimical to freedom of speech and of expression. The government is attempting to silence the voice of criticism with the introduction of law on hate speech prohibition of criticism in the country which is inimical to freedom of expression and of speech.
Fatoumatta: For those who fail to register the reverent nature of the twin fundamental rights/freedom of speech and expression; (which in modern times engender the freedom of the media and the necessary accompaniment of a liberating cocktail of freedom of conscience,belief,opinion and last but not least political rights) should drink from the cup of wisdom as served by the Jurisprudential colossus himself, Lord Denning, in one of his momentous reflections of yore;
“. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest……Silence is not an option when things are ill done” (Lord Denning, Master of the Rolls, in “The Due Process of Law”)
Fatoumatta: There is a fine line between exercising your freedom to protest a government you don’t agree with and subverting the functionality of that government. One is exercising your right to freedom of speech and the other borders on sedition and treason. Sedition Law, as it is, has no place in a confident democracy. A democracy should be confident and mature enough not to be afraid of mere words or slogans, treasonous though they may be.
A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government by established by law or with the intention of creating public disorder.
Infringement of rights under Article 19:
Article 19(1)(a) guarantees freedom of speech and expression to all the citizens.
However, Article 19(2) talks about “reasonable restrictions” on freedom of speech and expression, in interests of “public order”.
Article 19(2) has been used by the governments to suppress constructive criticisms by the public, on faulty and wrong governmental decisions.
Sedition defined is a colonial law meant to suppress the voice of the people. However, the irony is the law enforcement agencies have always used it against artists, journalists, politicians, public men, intellectuals for criticizing the governments.
Fatoumatta: The Supreme Court, being the protector of the fundamental rights of the citizens may declare the provision unconstitutional. The Gambian people of the 21st century does not require a law used by the colonial government to suppress Gambian voices. The law of sedition was used by Her Majesty’s colonial government to stop our forefathers from criticizing the colonial administrators should be over. The country’s sedition laws were illegal as they contravened against the Gambian Constitution.