Right to Free Speech

 

Re-Invigoration Freedom of Expression in The Gambia Post-Jammeh

 

By Aaron Olaniyi Salau, PhD in Public Law (UCT, South Africa), LLM, LLB (OAU, Nigeria), B L (Lagos, Nigeria), Lecturer in Laws, Dept. of Jurisprudence & International Law, Faculty of Law, Olabisi Onabanjo University, Ago Iwoye, Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

 

The human rights atmosphere in The Gambia has shown encouraging signs of improvement since the incumbent President Barrow assumed office in February 2017. But strengthening freedom of expression particularly in a post-Jammeh Gambia is imperative considering the denial of political participation generally and the chilling effect on freedom of expression of prosecutions for sedition and criminal defamation, physical intimidation, censorship unleashed on Gambian journalists and human rights defenders in an apparent bid for self-perpetuation during His Excellency, President Professor Sheikh Dr. Yahya Jammeh’s brutal 22-year rule. Accordingly, this paper argues that fulfilment of international human rights obligations and real commitment to the ongoing democratization process requires the new Gambian Government to re-visit the security sector, especially colonial and military-styled laws such as the National Intelligence Decree 1995 (No. 45 1995) and Official Secrets Act 1922.[1] These laws grant wide discretionary powers that motivate the executive to stifle political dissent under vague invocations of ‘national security’. Moreover, there has been no authoritative pronouncement on the constitutional standards of limitation of free speech pertaining to sedition, criminal defamation and ‘false news’ prosecutions by The Gambia’s Supreme Court. So, the interpretative approach to constitutional provisions in The Gambia is not robust as it should be. The foregoing is predicated on the analysis of human rights treaties, especially those negotiated under the auspices of the African Union ratified by The Gambia, The Gambia’s Constitution, statutes and official practices on the interplay between freedom of expression and national security. The prognosis is that reform of existing secrecy statutes incorporating a redefinition of ‘national security’ and enactment of access to information law, together with a progressive judicial interpretation of the Constitution and laws will ensure that a transparent, accountable and participatory democracy can take foothold in The Gambia.

 

Introduction

 

The human rights atmosphere in The Gambia has shown encouraging signs of improvement since the forced exit of President Professor Sheikh Dr. Yahya Jammeh and the incumbent, President Barrow, assumed office on February 2017.[2] But the strengthening of human rights, particularly the right to freedom of expression in a post-Jammeh Gambia is imperative, considering the manner of prosecutions for criminal defamation and sedition, physical intimidation, censorship, etc., unleashed on Gambian citizens, foreigners, journalists and human rights defenders in an apparent bid for self-perpetuation and regime security during the former President’s brutal 22-year rule.

 

This paper argues that the capacity for thought and its expression are innate human characteristics that are indispensable for the development of individual personality, for inter-personal relationships and participation in social and political affairs of one’s society. Hence, primacy has been accorded to freedom of expression or free speech, including freedom of the press, not only as a fundamental right, but an irreducible minimum for a functioning democracy. Democracy as a political system based on popular consent is strengthened by informed public scrutiny of official conduct and participation in the decision-making processes and through the press’ dissemination of information that is vital to hold governments accountable to citizens. Freedom of expression is also crucial for making political choices that democracy throws up, to protect one’s dignity and enforce other democratic rights. Most importantly, freedom of expression aids truth-seeking, especially during a period of political transition from dictatorship to democracy, which exposes human rights violations, and promotes accountability and national reconciliation.[3]  Freedom of expression and the press is guaranteed internationally,[4] in Article 9 of the African Charter on Human and Peoples’ Rights, 1981,[5] in other regional human rights instruments,[6] and in national laws and constitutions such as the Constitution of the Republic of The Gambia, 1997[7] (the 1997 Constitution) (as amended). However, several criminal law statutes in the Gambia impose undue restrictions on individual freedom and particularly of the press to scrutinize official conduct and express opinions on matters of public interest.[8] Many of these restrictions have also been abused by security agencies to cast a wider net for ‘national security’. These statutes are extremely vague, and confer extraordinarily broad powers on executive bodies saddled with the responsibility for public security, without setting the parameters for their application. The key issues relate to what constitutes ‘national security’ in Gambian law and when expression may be restricted in the national security interests. Moreover, there has been no authoritative pronouncement on the constitutional standard of limitation of free speech pertaining to sedition, criminal defamation and ‘false news’ prosecutions by The Gambia’s Supreme Court.[9] So the interpretative approach to constitutional provision in The Gambia is not quite robust as it should be. Notwithstanding, international human rights bodies, African regional and sub-regional courts have upheld the right to freely express oneself without the fear of criminal sanctions.

 

Consequently, this paper aims to interrogate the interplay between freedom of expression and national security in laws of The Gambia starting with this introduction. Part II then conceptualizes the freedom of expression rationales; part III reviews international standards for freedom of expression and national security limitations thereto, while part IV examines The Gambia’s legal frameworks on the interplay of freedom of expression and national security. Part IV concludes with recommendations for law reforms.

 

Freedom of Expression – Irreducible Minimum of a Functioning Democracy

 

Freedom of expression is foundational to a democracy which predicates the authority of government on the freely given consent of the people and without which the exercise of political power is illegitimate. Zen-Zenvovich and the social contract theorists who posit that freedom of expression predates and underlies liberal democracy are also in tandem as to the human communication’s innate value. As Zeno-Zencovich contends, the sustenance of the freedom of expression, and all its constituent aspects, is dependent on information, ideas and knowledge that are discoverable through human intellect.[10] This makes for a healthy socialization process and ultimately an open society. Moreover, political liberty is to be found where person can lay whatever sentiments or where political speech, that is, the exchange of information and ideas pertaining to the socio-economic and political realities of a polity,[11] is unrestrained. The foregoing is true of democracy because it envisions a society based on liberty, equality and governance under the rule of law and a constitution. Moreover, a democratic constitution elicits a social compact between government and the people; it dictates the basic structure and powers of government, rights and duties of citizenship and basic responsibilities of government to the people. But as argued throughout, citizens can only make democracy real and participate freely therein if they are well-informed. This can only materialize through constant exchange of information and ideas that public discussions make possible.[12] Freedom of expression or free speech is thus the cornerstone of a strong democracy that respects broadmindedness, tolerance and human dignity. But to remain effective, democracies must maintain internal and external security and deals with existential threats to itself core values.[13]

 

National security is the quintessential constitutional function of government;[14] which extends beyond the defence of territorial integrity, sovereignty and maintenance of internal order to social justice and basic welfare of citizens.[15] The processes of national security should therefore be people-oriented. But national security protection produces a dilemma, and a conflict of interest for democracy: it thrives on secrecy which inhibits free debate and provides a breeding ground for abuse of power. Moreover, protection of national security as a legitimate goal must be balanced against societal goals of freedom of expression.[16] Thus, international human rights norms dictate that restrictions on freedom of expression pertaining to national security must cumulatively satisfy a strict test of justification: legality, legitimacy and proportionality.[17]

 

International and Regional Standards of Freedom of Expression

 

Freedom of expression and of the press, is enshrined internationally in Article 19 of the Universal Declaration of Human Rights (UDHR) 1948,[18] and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) 1966,[19] but have, in different cultural and historical contexts, been undergoing similarly confirmatory interpretations under Article 10(1) of the European Charter of Rights and Fundamental Freedoms (ECHR),[20] Article 9[21] of the African Charter on Human and Peoples’ Rights (ACHPR) 1981,[22] and other multilateral human rights instruments.[23] Moreover, jurisprudential and other analysis by authoritative bodies and non-binding soft law – international declarations and statements – that espouse the meaning, nature and scope of freedom of expression are currently ongoing.

 

The European Court of Human Rights (ECtHR) has recognized the key role of freedom of expression:

Freedom of expression constitutes one of the essential foundations of ... a democratic society, one of the basic conditions for its progress and for the development of every man. ... it is applicable not only to “information” or “ideas” that are favourably received ... but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society.”[24]

 

Similarly, the Inter-American Court of Human Rights, in a challenge to the constitutionality of a mandatory licencing system for journalists, stated that “[f]reedom of expression is a cornerstone upon which the very existence of a democratic society rests”.[25]

 

As the African Commission on Human and Peoples’ Rights[26] noted with respect to Article 9 of the ACHPR:

This Article reflects the fact that freedom of expression is a basic human right, vital to an individual’s personal development, his political consciousness, and participation in the conduct of the public affairs of his country.[27]

 

In another vein, the Commission had remarked:

The intimidation and arrest or detention of journalists for articles published and questions asked deprives not only the journalists of their rights to freely express and disseminate their opinions, but also the public, of the right to information. This action is clearly a breach of the provisions of article 9 of the Charter.[28]

 

Furthermore, the African Commission has interpreted rights including freedom of expression as creating at least four levels of duties – “the duty to respect, protect, promote, and fulfil …” – “entail[ing] a combination of negative and positive duties”.[29] First, the duty to respect entails non-interference with rights.[30] Second, the duty to protect requires taking of appropriate measures to prevent rights’ violation and effectively remedy every interference.[31] Third, the duty to promote requires the facilitation of rights' enjoyment by relevant means including provision of infrastructures.[32] Fourth, the obligation to fulfil implies the actualization of rights by the direct provision of basic needs and services.[33] Similarly, the African Court on Human and Peoples’ Rights (African Court),[34] its incipient, but highly impactful jurisprudence, has admirably expanded the scope of freedom of expression. In The Beneficiaries of the Late Norbert Zongo et al v Burkina Faso,[35] the African Court held that freedom of expression is instrumental to access to justice[36] and owes a positive obligation to remedy the infringement of the right by State and non-State actors.[37] The Court, in Konaté v Burkina Faso,[38] held that there should be lesser interference with criticisms of public officials; hence, criminal sanctions for publication of information critical of public officials unreasonably infringe free speech.[39] The impugned provisions of Burkina Faso’s Information and Penal Codes[40] which imposed criminal sanctions against freedom of expression were declared illegal and contrary to the spirit of Article 9 of the ACHPR, and international law.

 

Recently, in a cased filed by the Federation of African Journalists in December 2015 along with four Gambian journalists, two of whom had been tortured by the National Intelligence Agency during the regime of former President Yahya Jammeh,[41] the sub-regional Economic Community of West African States (ECOWAS) Court of Justice (ECJ) on 14th February 2018 struck down laws on sedition, criminal defamation, false publication on the internet and broadcasting as unlawful infringements of freedom of expression in The Gambia.[42] This paper now engages in an analysis of national security restrictions on freedom of expression as dealt with by human rights bodies established under the auspices of the African Union.[43]

 

Freedom of Expression and National Security Restriction         

 

The African Commission has drawn from international law[44] to demonstrate through its jurisprudence and soft laws[45] that freedom of expression may not be restricted for national security concerns except as provided by law,[46] the restriction serves a legitimate interest and is necessary in a democratic society.[47] A summary of the African Commission’s evolutionary jurisprudence shows that “within the law” only accommodates national law that conforms to international standards and does not allow African states to evade their Charter obligations[48] or adopt limiting laws inconsistent with their Charter obligations.[49] Second, a restrictive measure must serve a legitimate public interest. The Commission has further enjoined states not to conflate their national security with such interests as public order, public safety and civil security or to excuse gross violations of people’s rights in the interests of national security.[50] Third, “necessity” relates to the concern for proportionality between the extent of the limitation measured against the nature of right involved. In Media Rights Agenda v Nigeria,[51] the Commission pronounced that barring the publication of information that creates a real danger to national security, the prohibition of criticisms of official policy or opinions deemed insulting to government violates Article 9(2) and is non-compliant with Article 27(2) of the ACHPR.[52] It explained further:

“The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained”.[53]

 

According to the African Commission in John D. Ouko v Kenya,[54] arbitrary arrests and detention of journalists by security agents to intimidate them to desist from criticizing Kenyan government officials breached Article 9 of the ACHPR. Rather, the affected government official ought to have instituted an action for defamation. Ultimately, State-parties are expected to abide with their human rights obligations, including the African Commission and African Court’s recommendations, and adopt relevant laws or amend existing domestic laws in compliance with their decisions.

 

Domestic Application of International Human Rights Norms: The Case of The Gambia

 

There is need to query the relevance of international human norms in developing national human rights jurisprudence in The Gambia considering relevant constitutional provisions. The question is whether the provisions import a narrow or wider interpretation: Depending on their status in a national system and applicable constitutional provisions, ‘international norms [have been] applied … [either] as "enforceable rights" … [or] as "an aid to the construction of an enactment".[55] According to Viljoen, international law can be incorporated into local legal systems in one of two ways: by explicit reference, or through reception. Explicit reference entails the enactment by name, as part of domestic legislation, of an international agreement. Reception takes place if the provisions of an international agreement are reproduced in national legislation, or if national legislation is amended or repealed to conform to international norms, without explicit reference being made to the source of these norms.[56]

 

But pertaining to State-parties to the African Charter, African scholars agree that irrespective of constitutional strictures, Article 1 thereof imposes on them the duty to "recognize" and "adopt legislative and other measures to give effect" to the rights and freedoms in the Charter.[57] The Gambia has signed and ratified most treaties negotiated under the auspices of the African Union such as the African Charter, ICCPR, African Women Protocol (legislated into Gambian law as Act No. 12 of 2010), Convention on the Rights of the Child (CRC) (domesticated on 2 August 2005), the Revised ECOWAS Treaty, and the 2nd Optional Protocol to the ICCPR.[58] Interestingly, the1997 Constitution guarantees civil, political rights, socio-economic and cultural rights,[59] and empowers the legislature to legislate on rights inherent in a democracy for safeguarding human dignity though not expressly provided for.[60] At the same time, the Constitution provides for courts to be ‘guided’ by the constitution in interpreting guaranteed rights. However, in theory, the relationship between Gambian domestic laws – especially the Constitution – vis-a-vis international law is fluid considering that relevant constitutional provisions are not a model of clarity. For instance, the Constitution provides that:

 

The Gambia shall not-

‘enter into any engagement with any other country which causes it to lose its sovereignty without the matter first being put to a referendum and passed by such majority as may be prescribed by an Act of the National assembly;’[61]

 

Again, the non-binding section 219(d) of the Constitution states:

‘The State shall endeavour to ensure that in international relations it:

(d) is guided by the principle and goals of international and regional organisations of which The Gambia is a signatory.’

 

By prima facie reading of sections 79(2)(a) and 219(d) above in addition to the principle of constitutional supremacy established under section 4 of the 1997 Constitution, it may be argued that The Gambia’s sovereignty is unaffected by its human rights obligations. But Senghor has argued based on section 219 above, Sabally v Inspector-General of Police & Others (Sabally)[62] and Gambian State practice, the country follows the ‘dualist’ tradition, notwithstanding the absence of clear constitutional provisions.[63] But the legal position adopted in this paper is stated in Attorney General v Dow,[64] to the effect that signatory or ratifying States like The Gambia may not repudiate their obligations based on non-domestication of human rights treaties according to their constitutions. Constitutional construction should be generous and meet ‘the just demands’ of a society based on human dignity unless by clear and unambiguous words a contrary interpretation is compelling.[65] Again, pending parliamentary approval, the provisions of international conventions should be used as aid to statutory interpretation.

 

Moreover, the fact that The Gambia, or any African country for that matter, has not passed specific legislation to give effect to the African Charter or any international treaty cannot be relied upon. Account must be taken of the African Charter in interpreting the fundamental human rights provisions of the Constitution.[66]

 

The Gambia’s Freedom of Expression Framework

 

The 1997 Constitution of The Gambia[67] has extensive provisions that guarantee free speech and press freedom. Section 25 provides:

 

Every person shall have the right to –

(a) freedom of speech and expression, which shall include freedom of the press and other media;       

The provision encompasses a right to seek ‘knowledge and information through the media’,[68] freedom of the press to disseminate and the right of individuals to receive information of public interest which are vital to the smooth function of a democracy.

 

Moreover, the fact that privately-owned and independent news media have proliferated in The Gambia is a testimony to the high esteem to which media practitioners hold their sacred duty as the watchdog of democracy.[69] However, since 2004, legal and extra-legal measures renewed its rate of attacks, harassment, intimidation and dehumanization on journalists, media practitioners, and persons critical of the government.[70] Ndombana had previously observed the trend:

In The Gambia, which hosts the African Human Rights Commission, there is growing clampdown on the freedom of expression, including arbitrary arrest and detention, expulsion or threats of' violence against journalists and other media practitioners.[71]

 

Indeed, section 25 sub-paragraph (4) of the 1977 Constitution qualifies freedom of expression in the following terms:

 

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.

 

Section 17(1) of the 1997 Constitution provides for the responsibility of the Government to respect and uphold the rights and freedoms guaranteed, as follows:

 

The fundamental human rights and freedoms enshrined in this Chapter [Chapter IV: Protection of Fundamental Rights and Freedoms] 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 this Constitution.[72]

 

Furthermore, sections 207 and 209 – 210, Chapter XIX of the Constitution provide:

 

207        (1)The freedom and independence of the press and other information media are hereby guaranteed.

(2) An Act of the National Assembly may make provisions for the establishment of the press and other information media.

(3) The press and other information media shall at all times be free to uphold the principles, provisions and objectives of this Constitution, and the responsibility and accountability of the Government to the people of The Gambia.

209        The provisions of sections 207 and 208 are subject to laws which are reasonably required in a democratic society in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of others.

210        An Act of the National Assembly shall within one year of the coming into force of this Constitution make provision for the establishment of a National Media Commission to establish a code of conduct for the media of mass communication and information and to ensure the impartiality, independence and professionalism of the media which is necessary in a democratic society.[73]

 

Interestingly, Chapter XIII, Part II, section191(1) and (2) of the Constitution[74] validates the establishment of “a National Intelligence Agency which shall be under the command of the President” and which Agency shall, subject to the provisions Constitution, “shall be governed by the National intelligence Agency Decree, 1995”. Thus, sections 25(4), 209 and 191(1) and (2) of the Constitution presumably validate several statues that severely restrict freedom of expression in The Gambia for reasons of national security, defence, public safety and public interests amongst others. Thus, the State may rely on those articles to assert the constitutionality of the OSA Act 1922 (as amended by Official Secrets (Amendment) Act 2008) and the NIA Decree 1995[75] – two examples of statues which impose the most severe restrictions on freedom of expression, and deny citizens their participatory rights in governance. It was originally promulgated to checkmate mutiny in the military. Beyond this however, national security has no precise meaning in Gambian law,[76] and it has not helped that the NIA Act broadly confers power on the NIA to limit free speech in the interest of national security without clearly specifying the objective test of limitation. Consequently, national security has been broadly abused in the Gambia; it has fostered secrecy around government activities and to intimidate the press and curtail civil liberties generally.[77] Particularly, the NIA Act grants wide discretionary powers of arrest, detention and interception of communications to public officials. These were abused in matters unrelated to the security of the Gambia.[78] The Official Secrets Act hampers the press in performance of its watchdog functions because it criminalizes the unauthorized publication of government information ‘deemed’ classified. Contrary to practices in modern democracies, NIA operatives exercise wide discretionary powers of arrest and detention for ordinary criminal offences.[79]

 

Similarly, the National Media Commission Act 2002 as amended by the National Media Commission (Amendment) Act 2003 (now repealed), established a National Media Commission to regulate inter alia, the registration of media practitioners and organisations and allocate licences.[80] The law provided for sanctions such as the banning of media houses for operating contrary to the code of conduct set established by the Commission. Under the law journalists could be forced to disclose confidential sources of official information published by them without government authorisation[81] and criminalized the publication of false news.[82] Sections 51 and 52 of the Criminal Code deal with seditious intention and offences conviction for which carry heavy imprisonment terms while both sections 178 – 179 and 181A[83] of the Criminal Code punish criminal defamation and false publication respectively.

 

Essentially therefore, freedom of expression is observed more in breach than in observance. According to Freedom House: Article 25 of the constitution provides for freedoms of speech, expression, and the press, but the government does not respect these rights in practice. Defamation and sedition are criminal offenses. The Information and Communications Act was amended in 2013 to introduce a 15-year prison term and a fine of 3 million dalasi ($70,000) for anyone convicted of using the internet to spread false news, make derogatory statements, incite dissatisfaction, or instigate violence against the government or public officials. The Criminal Code (Amendment) Act of 2013 has also been used to undermine freedom of expression. The Indemnity (Amendment) Act of 2001, which gives the president discretion to forgo prosecuting security forces, discourages victims of human rights violations, including journalists, from seeking justice.[84]

 

The following are evidences abound of inhuman and degrading treatment and other indignities meted out to journalists and media practitioners in the Jammeh era namely the unresolved murder of former editor of the Point newspaper, Deyda Hydara; the case of journalist Chief Ebrimah Manneh, who was arrested in 2006 by state security agents and has since been missing; Musa Saidykhan, an exiled journalist, who in 2006 was held by the government for three weeks and allegedly tortured; the July 2015 arrest, detention incommunicado of Alagie Abdoulie Ceesay, manager of Taranga FM by suspected NIA operatives, his subsequent charge with seditious and publishing of false news, and prison remand.[85]

 

National Security Limits of Free Speech:  The Gambia’s Constitutional Standard

 

The exercise of freedom of expression, including press freedom, may be restricted on national security grounds based on two concurrent standards in the 1997 Constitution, namely:

 

Under section 209, by “laws which are reasonably required in a democratic society in the interest of national security...” and in terms of section 25(4), “subject to the law of The Gambia …that law imposes reasonable restrictions … which are necessary in a democratic society and are required in the interests of … national security …”[86]

 

Though the above provisions qualify freedom of expression, they are not explicit as to the conditions in terms of which restrictions will be “reasonably required”, “necessary in a democratic society” or “reasonable”.[87] The test of whether laws are “reasonably required” or “reasonable” and “necessary in a democratic society” may be adapted from the jurisprudential analysis carried out by African Commission and the African Court have analysed the three-part test which restrictions on the exercise of freedom of expression must undergo[88] came handy. Hence, restrictions based on national security concerns must be prescribed by law. Such a law must give adequate notice of conduct prohibited, and must not confer undue discretion on the executive as to its implementation. Additionally, the restriction must serve a legitimate national security interest and not cover up official improprieties, incompetence or human rights violations. Lastly, the restrictive measure must be necessary and not disproportionate to interest sought to be protected, nor excessive such as criminal sanctions meant to clamp down on freedom of expression.

 

Conclusion

 

This paper has analysed the crises of freedom of expression and press freedom within the context of former president, Yahyah Jammeh’s iron-fisted rule in The Gambia, and the inhuman and degrading treatment unleashed on media practitioners and other dissenting voices based on vague assertions of ‘national security’ ostensibly to perpetuate his regime in power. Considering the vital importance of the right to freedom of expression as the cornerstone of a free and democratic society, it is imperative that The Gambia fulfils its international human rights obligation to protect, respect, promote and fulfil the right in all ramifications.          It is hereby recommended that the OSA 1922 and the NID 1995 and sedition, criminal defamation and false news provisions in the Criminal Code[89] and other laws that have secrecy provisions must be abrogated, and a new National Security and Intelligence Agencies Act be enacted according to ‘good democratic practices’. There is also need to re-invigorate section 25 of the Gambian Constitution 1997[90] and arm the press through the enactment of an access to information statute. Furthermore, the Gambia should obey previous ECOWAS Court decisions in favour of journalists such as late Deyda Hydara, Chief Ebrima Manneh and Musa Saidykhan.[91] Ultimately, Gambian judges and other judicial officers should aim at a progressive constitutional interpretation which expands rather than constrain human rights.

References

 

Articles

Birkinshaw P, ‘Freedom of Information and Openness: Fundamental Human Rights?’ Administrative Law Review (2006) 58.

Dankwa E V O, ‘Implementation of international human rights instruments: Ghana as an illustration’ (1991) 3 African Society of International and Comparative Law 57;

Salau A, ‘Positive Obligation to Protect Access to Information in the African Charter and National Security Restrictions in Nigerian Law: Striking the Right Balance’ (African Journal of Comparative & International Law) (forthcoming);

Senghore A A, ‘Press freedom and democratic governance in The Gambia: A rights-based approach’ [2012] 2 African Human Rights Law Journal 508;

Udombana N J, ‘Can the Leopard Change Its Spots? The African Union Treaty and Human Rights’ (2002) American University International Law Review;

Viljoen F, ‘Application of The African Charter On Human and Peoples' Rights by Domestic Courts in Africa’ (1999) 43(1) Journal of African Law 43; Botswana Citizenship Act 1982.

 

Books

Jammeh O A M, The Constitutional Law of the Gambia: 1965 – 2010 (AuthorHouse Bloomington 2006);

Volkov F M, et al (eds), International Law (Progress Publishers 1990);

Walker W O, National Security and Core American Values in American History (Cambridge University Press 2009);

Zeno-Zencovich V, Freedom of Expression: a Critical and Comparative Analysis (Routledge-Cavendish 2008).

 

Cases

Application No. 004/2013 Lohé Issa Konaté v The Republic of Burkina Faso<http://en.africancourt.org/images/Cases/Judgment/Konate%20Judgment%20Engl.pdf> accessed 20 February 2018;

Application No. 013/2011 The Beneficiaries of the Late Norbert Zongo et al v Burkina Faso, para 183 (judgment delivered 28 March 2014);

Attorney General of Botswana v Unity Dow (2001) AHRLR 99 (BwCA 1992;

Baboucarr Gaye v The IGP (2000) WLR 200 (HC);

Campbell v MGN Limited [2004] UKHL 22; [2004] 2 AC 457 (HL);

Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995);

Communication No. 628/1995 T Hoon Park v the Republic of Korea (Views adopted on 20 October 1998) UN Doc. GAOR, A/54/40 (Vol. II);

Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No.5, para 70;

D. Ouko v Kenya (2000) AHRLR 135 (ACHPR 2000);

ECW/CCJ/APP/30/11 Hydara v The Gambia (delivered 10 June 2014);

Filartiga v Pena-Irala, 630 F. 2d 876 (1980);

Good v Republic of Botswana, (2010) AHRLR 43 (ACHPR 2010);

Handyside v United Kingdom, 7 December 1976, 1 EHRR 737;

Interights, Institute for Human Rights and Development in Africa and Association Mauritanienne des droit de l’Homme v Mauritania AHRLR (2004) 87;

Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000);

Law Office of Ghazi Suleiman v Sudan (I) (2003) AHRLR 134 (ACHPR 2003);

Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008);

Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998);

Musa Saidykhan v Gambia (2010) ECW/CCJ/APP/11/07;

New Patriotic Party v Ghana Broadcasting Corporation Writ 1/93, Supreme Court, judgment of 30 November 1993;

New York Times v Sullivan 376 US 254 (1964);

Sabally v Inspector-General of Police & Others (2001) 2 GR 883 [SC];

Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009);

Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001);

Sudan Human Rights Organization v Sudan (2009) AHRLR 153 (ACHPR 2009) (‘the COHRE case’);

Suit No. 5/2005 Gambia Press Union v National Media Commission

Suit No. HC/293/09/CR/062/AO The State v Ebrima Sawaneh, Pap Saine, Sarata Jabbi, Dibba, Pa Modou Faal, Abubacarr Saidy Khan, Sam Sarr, Bai Emil Touray.

 

Chapter in Book

Olagunju T, ‘Notes on The 1999 Constitution And National Security’ in Ayua I A, Guobadia D A & Adekunle A O (eds), Nigeria: Issues In The 1999 Constitution (Nigerian Institute of Advanced Legal Studies 2000).

 

Constitutions

Constitution of Burkina Faso 1991 <http://heinonline.org/wiki/index.php/HeinOnline:WebinarWorldConstitutionsIllustrated> accessed 31 March 2018;

Constitution of the Republic of Botswana 1966 (as amended) <http://heinonline.org/wiki/index.php/HeinOnline:WebinarWorldConstitutionsIllustrated> accessed 31 March 2018;

Constitution of the Republic of The Gambia, adopted on 8 August 1996, entered into force 16 January 1997 <http://www.wipo.int/wipolex/en/text.jsp?file_id=221243> accessed 31 March 2018.

 

Reports

Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’, 44th Ordinary Session of the African Commission held 10-24 November 2008 at Abuja, Nigeria <http://www.achpr.org/files/sessions/44th/inter-act-reps/104/freedom_of_expression.pdf> accessed 31 March 2018;

Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4 (2014);

Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

 

Statutes

The Gambia:

Criminal Code (Amendment) Act 2004; 

Criminal Code (Amendment) Act 2005;

Criminal Code Cap. 10 Vol. III, Laws of the Gambia 1990;

Indemnity (Amendment) Act 2010;

Information and Communication Act 2009;

National Intelligence Agency Decree No. 45 1995;

Newspaper Amendment Act 2004;

Official Secrets Act 1922 Cap.17:01, Laws of The Gambia 1990;

Official Secrets (Amendment) Act 2008;

Botswana:

Citizenship Act 1984

Burkina Faso:

Law on Information (Law No. 56/93/ADP of December 30, 1993;

Penal Code, Law No. 043/96/ADP, Nov. 13, 1996;

Ghana

PNDC Law 211 (the Newspaper Licensing Law).

 

Treaties & Soft Laws

African Charter on Human and Peoples’ Rights Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I. L. M. 58 (1982), entered into force Oct. 21, 1986 (ACHPR);

American Convention on Human Rights, Nov, 22, 1969, O. A. S. Treaty Series No. 36, at 1, OAE/Ser. L./V/II.23 doc. Rev. 2, entered into force July 18, 1978 (ACHR);

Constitutive Act of the African Union, adopted by the OAU Assembly of Head of States and Governments (AHSG) at the 36th Ordinary Session of the OAU held on 11 July 2000 Lomé at Togo, OAU Doc. CAB/LEG/23.15 (entered into force 26 May 26 2001) (CAAU);

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U. N. T. S. 222, entered into force Sept. 3, 1953;

International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force 23 March 1976;

Model Law on Access to information for Africa;

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights;

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights (African Court’s Protocol), adopted 9 June 1998, entered into force 25 January 2004;

The Declaration of the Principles on Freedom of Expression in Africa;

Universal Declaration of Human Rights G. A. res. 217 A (III), U.N. Doc. A/810 at 71 (1948).

 

Theses

Salau A, ‘The Right of Access to Information and Its Limitation by National Security in Nigeria: Mutually Inclusive or Exclusive?’ (PhD Thesis, University of Cape Town 2017).

 

Websites

Amnesty International, ‘Gambia: Regional court rules draconian media laws violate human rights’ (14 February 2018) <https://www.amnesty.org/en/press-releases/2018/02/gambia-regional-court-rules-draconian-media-laws-violate-human-rights/> accessed 24 Feb 2018;

Article 19, “Written Comments” in Suit No. 5/2005 Gambia Press Union & 4 Ors V National Media Commission & 2 Ors <https://www.article19.org/data/files/pdfs/cases/gambia-comments-on-media-commission-act.pdf> 10-11 accessed 31 March 2018;

Freedom House, ‘Gambia, The Freedom of the Press 2016’<https://freedomhouse.org/report/freedom-press/2016/gambia> accessed 13 March 2018;

Gambia Press Union and The Coalition for Human Rights in The Gambia submission to the UN Universal Periodic Review Seventh Session of the UPR Working Group, 1 September 2009 <http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/GM/JS1_UPR_GMB_S07_2010_JointSubmission1.pdf> accessed 22 March 2018;

Human Rights Watch World Report 2018, ‘Gambia Events of 2017’ <https://www.hrw.org/world-report/2018/country-chapters/gambia> accessed 24 February 2018;

International Bar Association Human Rights Institute, ‘The Gambia: Freedom of Expression on Trial’ (IBA 2010) <https://www.ibanet.org> accessed 25 February 2018;

Media Foundation for West Africa, ‘Gambia ALERT: The trial of seven journalists now held in camera’ <http://www.mediafound.org/index.php?option=com_content&task=view&id=395&Itemid=1> accessed 31 March 2018;

MLDI ‘Persecution of journalists: the Gambia brought before ECOWAS Court’ 12 Oct 2016

Working Group on Enforced or Involuntary Disappearances, ‘General Comment on the Right to the Truth in Relation to Enforced Disappearances’ <http://www.ohchr.org/Documents/Issues/Disappearances/GC-right_to_the_truth.pdf> accessed 22 March 2018.

 

 

 

 

 

 

 

 

 

 

 




[1] Cap. 17.01 Laws of The Gambia 1990.

[2]Human Rights Watch World Report 2018, ‘Gambia Events of 2017’ <https://www.hrw.org/world-report/2018/country-chapters/gambia> accessed 24 February 2018.

[3] Working Group on Enforced or Involuntary Disappearances, ‘General Comment on the Right to the Truth in Relation to Enforced Disappearances’ <http://www.ohchr.org/Documents/Issues/Disappearances/GC-right_to_the_truth.pdf> accessed 22 March 2018 (Working Group on Enforced Disappearances). Also, the Truth, Reconciliation and Reparations Commission established in 2017 is expected to bring former operatives of the NIA (now State Intelligence Services) to book by investigating atrocities of the Jammeh regime.

[4](Text to n 18).

[5](Text to n 22).

[6](Text to n 23).

[7]Adopted on 8 August 1996, entered into force 16 January 1997 <http://www.wipo.int/wipolex/en/text.jsp?file_id=221243> accessed 25 January 2018.

[8]Fatou Camara, the president’s former press secretary, fled the country in 2013 after being charged for “spreading false news and publication of false news with intent to tarnish the image of the president.”

[9]International Bar Association Human Rights Institute, ‘The Gambia: Freedom of Expression on Trial’ (IBA 2010) <https://www.ibanet.org> accessed 25 February 2018 (analyzing the trial based on indictment dated 9 July 2009 against 7 journalists filed at the High Court of Banjul in Suit No. HC/293/09/CR/062/AO The State v Ebrima Sawaneh, Pap Saine, Sarata Jabbi, Dibba, Pa Modou Faal, Abubacarr Saidy Khan, Sam Sarr, Bai Emil Touray for conspiracy to publish seditious publication contrary to section 386 of the Criminal Code Cap. 10 Vol. III Laws of the Gambia 1990, publishing seditious publication contrary to section 51 (1) (a) read together with section 52(1)(c) of the Criminal Code Cap. 10 Vol. III Law of the Gambia 1990, Criminal Defamation contrary to section 178 and punishable under section 34 of the Criminal Code Cap. 10 Vol. III Laws of The Gambia 1990. The offences were allegedly committed with intent to bring the President and Government into disrepute through a supposed innuendo published in a newspaper to the effect that Gambia’s President, Dr. Jammeh and his Government were complicit in the death of one Deyda Hydara.

[10]Vincenzo Zeno-Zencovich, Freedom of Expression: a Critical and Comparative Analysis (Routledge-Cavendish 2008).

[11]Campbell v MGN Limited [2004] UKHL 22, [2004] 2 AC 457 (HL).

[12]New York Times v Sullivan 376 US 254 (1964) (Brennan J) (stating that democracy is based on ‘uninhibited, robust and wide-open’ public debate and scrutiny of government actions).

[13]William O Walker, National Security and Core American Values (Cambridge University Press 2009).

[14]Patrick Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ Administrative Law Review (2006) 58.

[15]Tunji Olagunju, ‘Notes on The 1999 Constitution And National Security’ in I A Ayua, D A Guobadia, & A O Adekunle (eds), Nigeria: Issues In The 1999 Constitution 290-91 (Nigerian Institute of Advanced Legal Studies 2000). 

[16]For instance, the African Commission on Human and Peoples’ Rights gas severally re-iterated that ‘[t]he only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in Article 27(2) according to which ‘rights and freedoms shall be exercised with due regard to the rights of others, collective security, morality and common interest’, see Interights, Institute for Human Rights and Development in Africa and Association Mauritanienne des droit de l’Homme v Mauritania AHRLR (2004) 87; Sudan Human Rights Organization v Sudan (2009) AHRLR 153 (ACHPR 2009) (‘the COHRE case’) para 165. Similarly, the ICCPR, art 19(3) states that:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights and reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

[17]Article 19, Comments Submitted by Article 19 in Suit No. 5/2005 (Supreme Court of The Gambia), Gambia Press Union v National Media Commission (Article 19 2004) <https://www.article19.org/data/files/pdfs/cases/gambia-comments-on-media-commission-act.pdf> accessed 23 January 2018 para 3.3.1. The Human Rights Committee has emphasised that freedom of expression ‘is of paramount importance in any democratic society, and any restriction to the exercise thereof must meet a strict test of justification’, see Communication No. 628/1995, T Hoon Park v the Republic of Korea (Views adopted on 20 October 1998) in UN Doc. GAOR, A/54/40 (Vol. II), 91 para 10.3. In Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) paras 69-70, the African Commission stated: ‘The reasons for possible limitations must be founded in a legitimate state interest and the evils of limitations of rights must be strictly proportionate with and absolutely necessary for the advantages which are to be obtained. Even more important, a limitation may never have as a consequence that the right itself becomes illusory’.

[18]Universal Declaration of Human Rights G. A. res. 217 A (III), U.N. Doc. A/810 at 71 (1948), art 19.

[19]International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force 23 March 1976, art 19(1).

[20]The European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U. N. T. S. 222, entered into force Sept. 3, 1953, art 10.

[21]Article 9 of the ACHPR provides as follows:

Every individual shall have the right to receive information.

Every individual shall have the right to express and disseminate his opinions within the law.

[22]Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I. L. M. 58 (1982), entered into force Oct. 21, 1986.

[23]American Convention on Human Rights, Nov, 22, 1969, O. A. S. Treaty Series No. 36, at 1, OAE/Ser. L./V/II.23 doc. Rev. 2, entered into force July 18, 1978, art 13. In addition, the principle of freedom of expression is embedded in customary international law, see, Filartiga v Pena-Irala 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit).

[24]Handyside v United Kingdom (1976) 1 EHRR 737 para 49.

[25]Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para 70.

[26]Established “to promote human and peoples' rights and ensure their protection in Africa” by ACHPR, art 30.

[27]Media Rights Agenda and Others v Nigeria (n 17) para 52.

[28]Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) para 65.

[29]Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001) para 44.

[30]Ibid para 45.

[31]Ibid paras 46, 57.

[32]Ibid para 46.

[33]Ibid para 47.

[34]Established under article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights (African Court’s Protocol), adopted 9 June 1998 by the OAU in Ouagadougou, Burkina Faso, entered into force 25 January 2004. The African Court has jurisdiction concerning the interpretation and application of the ACHPR, the African Court’s Protocol itself and other human rights instrument ratified by State-parties thereto, African Court’s Protocol, arts 3 & 7.

[35]Application No. 013/2011 (judgement delivered 28 March 2014).

[36]The Beneficiaries of the Late Norbert Zongo et al v Burkina Faso (n 35) para 183.

[37]Ibid paras 183, 186.

[38]Application No. 004/2013 Lohé Issa Konaté v The Republic of Burkina Faso <http://en.african-court.org/images/Cases/Judgment/Konate%20Judgment%20Engl.pdf>  accessed 20 February 2018.

[39]Constitution of Burkina Faso 1991 art 8, also guarantees freedom of expression, the press and right to information, see HeinOnline,  World Constitutions Illustrated <http://heinonline.org.ezproxy.uct.ac.za/HOL/COW?collection=cow> accessed 31 March 2018.

[40]Law on Information No. 56/93/ADP of 30 December 1993; Penal Code Law No. 043/96/ADP of 13 November 1996.

[41]MLDI ‘Persecution of journalists: the Gambia brought before ECOWAS Court’ 12 Oct 2016

<https://www.mediadefence.org/news/persecution-journalists-gambia-brought-ecowas-court> accessed 31 March 2018.

[42]Amnesty International, ‘Gambia: Regional court rules draconian media laws violate human rights’ (14 February 2018) <https://www.amnesty.org/en/press-releases/2018/02/gambia-regional-court-rules-draconian-media-laws-violate-human-rights/> accessed 24 Feb 2018.

[43]Established to replace the Organisation of African Unity (OAU) through the Constitutive Act of the African Union, adopted by the OAU Assembly of Head of States and Governments (AHSG) at the 36th Ordinary Session of the OAU held on 11 July 2000 in Lomé, Togo, OAU Doc. CAB/LEG/23.15 (entered into force 26 May 26 2001) (CAAU), art 2.

[44]See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) paras 4–6; Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, UN Doc. CCPR/C/USA/CO/4 (2014) para 22.

[45]The Model Law on Access to information for Africa (Model Law) contains the African Commission’s national security benchmark to serve as guide to African States to adopt legislative measures to expand the scope of freedom of expression through access to information while the Declaration of the Principles on Freedom of Expression in Africa embodies international law principles which acknowledge that freedom of expression embraces the right of access to information.

[46]Human rights treaties like the ICCPR, ECHR, IACR, AFCHPR, respectively use epithets like “within the law”, “prescribed by law”, etc.

[47]For a fuller discussion on justificatory conditions for permissible restrictions to Article 9 rights, see, Aaron Olaniyi Salau, ‘The Right of Access to Information and Its Limitation by National Security in Nigeria: Mutually Inclusive or Exclusive?’ (PhD Thesis, University of Cape Town 2017).

[48]See Good v Republic of Botswana (2010) AHRLR 43 (ACHPR 2010); Law Office of Ghazi Suleiman v Sudan(I)  (2003) AHRLR 134 (ACHPR 2003).

[49]Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995) para 15.

[50]Scanlen and Holderness v Zimbabwe (2009) AHRLR 289 (ACHPR 2009) paras 109–110.

[51]Media Rights Agenda v Nigeria (n 17).

[52]Ibid paras 73–5.

[53]ibid para 69.

[54](2000) AHRLR 135 (ACHPR 2000) para 28.

[55]Exemplified in Attorney General of Botswana v Unity Dow Attorney-General v Dow (2001) AHRLR 99 (BwCA 1992) para 109 (CA, Botswana) (holding that provisions of Botswana Citizenship Act 1982, whose effect was to disentitle children of Botswana women married to foreign nationals from claiming Botswana nationality violated Article 2 of the Charter notwithstanding that Article 15 of the Botswana Constitution omitted ‘sex’ among prohibited ground for discrimination. According to the Court, argument that the Charter is not binding having not been passed into law was ingenious because the interpretation of local legislation must not "conflict with Botswana's obligations under the Charter").

[56]Frans Viljoen, ‘Application of The African Charter On Human and Peoples' Rights by Domestic Courts in Africa’ (1999) 43(1) Journal of African Law 43; F M Volkov et al (eds), International Law, (Progress Publisher 1990) 54.

[57]Aaron Salau ‘Positive Obligation to Protect Access to Information in the African Charter and National Security Restrictions in Nigerian Law: Striking the Right Balance’ African Journal of Comparative & International Law (forthcoming); F Viljoen ‘Application of The African Charter On Human and Peoples' (n 56); E V O Dankwa, ‘Implementation of international human rights instruments: Ghana as an illustration’ (1991) 3 African Society of International and Comparative Law 57 (making ‘a plea for the incorporation of international human rights treaties into domestic law in Ghana’ and expressing ‘doubts whether PNDC Law 211 (the Newspaper Licensing Law) "can stand by virtue of the combined effect of Articles 9 and 7(1) of the same Charter").

[58]Freedom House, ‘Gambia, The Freedom of the Press 2016’<https://freedomhouse.org/report/freedom-press/2016/gambia> accessed 13 March 2018 (commenting on criminal prosecutions, physical intimidation and censorship unleashed on Gambian citizens, expatriates-residents, journalists, etc.).

[59]Chapter IV.

[60]Section 27(8).

[61]Section 79(2)(a).

[62](2001) 2 GR 883 [SC] (invalidating the Indemnity (Amendment) Act 2010 for violating Gambia’s constitutional guarantees of human rights and article 7(1)(a) of the African Charter).

[63]Aboubacar Abdullah Senghore, ‘Press freedom and democratic governance in The Gambia: A rights-based approach’ [2012] 2 African Human Rights Law Journal 508.

[64](Text to n 55).

[65]Ibid 165 – 66.

[66]See the Ghanaian case of New Patriotic Party v. Ghana Broadcasting Corporation Writ 1/93, Supreme Court judgment of 30 November 1993 (Archer CJ Concurring).

[67](Text to n 7).

[68]Baboucarr Gaye v The IGP (2000) WLR 200 (HC).

[69]Senghor (n 63).

[70]Gambia Press Union and The Coalition for Human Rights in The Gambia submission to the UN Universal Periodic Review Seventh Session of the UPR Working Group, 1 September 2009 <http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/GM/JS1_UPR_GMB_S07_2010_JointSubmission1.pdf> accessed 22 March 2018.The Criminal Code Amendment Act 2005 punishes defamation with heavy fines Dalasis 50,000 (US$2000) to Dalasis 250,000 (US$10,000). It gives judges the discretion to impose mandatory prison sentences of a minimum of six months.

[71]Nsongurua J Udombana ‘Can the Leopard Change Its Spots? The African Union Treaty and Human Rights’ American University International Law Review (2002) 17(6) 1177, 1230.

[72](Text to n 7).

[73]Ibid.

[74]Ibid.

[75]Ibid.

[76]Ousman A M Jammeh The Constitutional Law of the Gambia: 1965 – 2010 (AuthorHouse Bloomington 2006) 287.

[77]Media Foundation for West Africa, ‘Gambia ALERT: The trial of seven journalists now held in camera’ <http://www.mediafound.org/index.php?option=com_content&task=view&id=395&Itemid=1> accessed 31 March 2018.

[78]Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’, 44th Ordinary Session of the African Commission held 10-24 November 2008 at Abuja, Nigeria <http://www.achpr.org/files/sessions/44th/inter-act-reps/104/freedom_of_expression.pdf> accessed 31 March 2018.

[79]Gambia Press Union, Gambia Press Union and The Coalition for Human Rights in The Gambia submission to the UN Universal Periodic Review Seventh Session of the UPR Working Group, 1 September 2009’ <http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/GM/JS1_UPR_GMB_S07_2010_JointSubmission1.pdf> 5 accessed 22 March 2018

[80]Section 13.

[81]Section 15.

[82]Section 33. See also Information and Communication Act 2009 (criminalizing false publication on the internet); Criminal Code (Amendment) Act 2004 (cancellation of all previous licences issued to the media and forced re-registration); Newspaper Amendment Act 2004.

[83]The section provides: ‘any person who, willfully or negligently or recklessly or having no reason to believe that it is true, publishes or broadcasts false news, commits an offence punishable on conviction with a minimum fine of D50 000 or a maximum of not more D200 000 or imprisonment for a term of not less than one year’. Section 181A further provides that the fact that the person did not know that the information or the news was false is not a defence unless he or she had taken adequate measures to verify the information.

[84]Freedom House, ‘Gambia, The Freedom of the Press 2016’ (n 58).

[85]See further, International Bar Association Human Rights Institute, ‘The Gambia: Freedom of Expression on Trial’ (IBA 2010) <https://www.ibanet.org> accessed 25 February 2018 (‘Annex I: Selected other cases of harassment and intimidation of journalists).

[86]Article 19, “Written Comments” in Suit No. 5/2005 Gambia Press Union & 4 Ors V National Media Commission & 2 Ors <https://www.article19.org/data/files/pdfs/cases/gambia-comments-on-media-commission-act.pdf> 10-11 accessed 31 March 2018.   

[87]Ibid.

[88]As to what is necessary or “reasonably justifiable in democratic society”.

[89]Cap. 10 Vol. III Laws of The Gambia 1990, sections 51, 178, 179 and 181A respectively (as amended by Criminal Code (Amendment) Act 2004 and Criminal Code (Amendment) Act 2005).

[90]Adopted on 8 August 1996, entered into force 16 January 1997 (as amended).

[91]ECW/CCJ/APP/30/11 Hydara v The Gambia (delivered 10 June 2014) (); Musa Saidykhan v Gambia (2010) ECW/CCJ/APP/11/07 (delivered 16 December 2010) (awarding US $ 2000,000 damages for unlawful arrest, detention and torture by the NIA); Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008).