Freedom of Expression

 

The Gambia in Search of New Frontiers Under a Common Destiny: Freedom of Expression as an Antidote to Development

 

Convinced that laws and customs that repress freedom of expression are a disservice to society.[1]

By

Nkosana Maphosa, LLM (Loyola University Chicago, USA), LLB (Wits, SA), Lecturer in Laws, Herbert Chitepo Law School, Great Zimbabwe University, Masvingo, Zimbabwe, email:This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it.

Fadzai R Dhlembeu, LLB (UWC, SA), email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Abstract

Freedom of expression is an inalienable human right protected under national and international law. Although recognised as a crucial ingredient for development, research has, however, recorded a significant global increase in restrictive laws. This paper examines the regulation of freedom of expression in the context of State reconstruction in The Gambia. It grapples with the following questions: What’s the relationship between freedom of expression and development?; Is freedom of expression justiciable under Gambian law?; If so, what is the scope of this right?; What efforts, if any, have been made, to promote, protect, respect and fulfil the right to freedom of expression in The Gambia? What measures can be put in place to guarantee reasonable regulation of freedom of expression in an open and democratic society based on values of justice, probity and fairness? The paper employs desktop analysis to reach crisp findings. It, therefore, concludes that The Gambia has recently shown an incredible inclination towards democracy, by adopting progressive policies and initiating legal reforms, with a positive bearing on freedom of expression.

Keywords: Democracy, Development, Freedom of expression, Transitional justice.

 

Introduction

The Gambia is going through a transitional and reconstruction phase.[2] Efforts are being made to undo past wrongs[3] and deal with present and future development needs and challenges.[4] The former President Yahya A.J.J Jammeh may have been toppled but his legacy still lives on. The current regime is seized with an enormous responsibility to build an inclusive, integrated, just and prosperous nation.[5] President Adama Barrow has stated with sagacity that:

On 2nd December 2016, Gambians with great courage, determination and dignity decided to take back their country following 22 years of dictatorship. During this period, the abuse of power and total disregard for our constitution, the rule of law and respect for fundamental human rights of citizens reigned supreme. This historic decision that ushered in the “new Gambia” has created a seismic shift in our country’s trajectory since gaining independence in 1965. It heralds a new chapter in our history and offers a renewed opportunity to build a modern accountable state based on the foundations of democracy, good governance, respect for human rights and security and prosperity for all. However, it also presents new challenges that need to be urgently addressed. My government inherited an extremely challenging legacy manifested in a broken economy, gross abuse and plunder of our meagre state resources, social regression, poor and dilapidated infrastructure, and wide-ranging societal challenges, among the most urgent of which is the frustrations and lack of opportunities for our young people. The latter has propelled thousands of our young people to undertake the risky journey, often with tragic consequences, across the Mediterranean Sea in search of a better future. Similarly, many of our able and distinguished sons and daughters in the Diaspora, were forced to live in exile due to the repressive environment that prevailed thus, depriving the country of vital human capital and resources needed to fuel the growth and economic and social transformation of our society.[6]

The vision of building a New Gambia has started to bear positive results. Recent events have seen The Gambia being ‘named biggest global advancer on freedom of expression’.[7] Empirical reports also suggest a sixty-seven percent increase in freedom of expression in 2017 and especially media freedoms, through the adoption of a Strategic Framework for Media Reform in The Gambia. This euphoria is understandable taking into account the previous regime’s notorious poor governance and human rights infringements.[8]  Thus, freedom of expression was practically and legally hindered. There is, a need to explore the past, present and future whilst echoing the importance of freedom of expression.[9] Benjamin Franklin once remarked with brevity that:

Freedom of speech is a principal pillar of a free government: when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

The African continent has unfortunately experienced serious inroads to this fundamental guarantee over the years.[10] This assertion has been confirmed by the Special Rapporteur on Freedom of Expression and Access to Information.[11] According to the report violation of freedom of expression in Africa takes the form of government harassment and physical assault of journalists; criminalisation of the exercise of freedom through harsh press laws; the use of anti-terrorism laws to  shutter media houses; imposition of extreme censor measures; imprisonment of journalists; extra-judicial killing or murder of journalists; inconclusive and extremely delayed investigations into such killings by authorities; arson attacks against private newspapers establishments; closing down of independent newspapers and/or media houses, and use of law and order or national security to muzzle the independent press, etc.[12] 

On a positive note, the Supreme Court of The Gambia (Supreme Court) in Gambia Press Union v The Attorney General,[13] reasoned inter alia, that:

Still in relation to the issue of constitutional presumption of validity of an Act of Parliament, this Court also presumes that the framers of the Constitution of the Republic of The Gambia, in outlining in detail the fundamental rights and freedoms of individuals and of the press and other media, intended that those rights and freedoms must be jealously guarded against arbitrary interference. The exceptions or restrictions created to the exercise of those rights and freedoms must be given careful and stricter construction.[14]

Furthermore, Gambia Press Union’s case concerned s 25 of the Constitution of The Gambia, 1997 (1997 Constitution) which gives freedom of speech the status of an inalienable right subject to lawful limitations. In this seminal decision, the Supreme Court had to consider several provisions of the Criminal Code [Cap.10:01] like s 51 (seditious intention), 52A (power to confiscate printing machine on which seditious material is published, s 53 (statutory time limit for initiating prosecution), and s 181A which deals with false publication and broadcasting.

In the main, Ousainou Darboe & 19 Ors v. Inspector General of Police & Ors [2017] provides that any restriction on fundamental rights must be reasonable; must be necessary in a democratic society; and must be imposed for one or more  purposes set out in section 25 (4) of the Constitution.  This test is has been confirmed by the same court in several cases.

The Supreme Court also had occasion to rule on freedom of expression in Emil Touray and 2 Ors v The Attorney General.[15] This case once again dealt with impugned sections of the Criminal Code as they related to free speech in The Gambia. The Court found sections 178, 179 and 180 of the Criminal Code incompatible 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. It found that the restrictions these provisions placed on the exercise of those rights and freedoms were neither reasonable nor necessary in a democratic society, particularly in the context of the Constitution.

This paper notes the slight differences between free speech and freedom of expression. It opts for the latter since it is expansive. We chose to examine it because it is a foundational human right.[16] It is not only enumerated in international and regional instruments but in national law also. As a point of departure, the Universal Declaration of Human Rights (UNDHR) 1948, provides that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[17]

According to article 19 of the International Covenant on Civil and Political Rights (ICCPR):

(1)   Everyone shall have the right to hold opinions without interference.

(2)   Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other media of his choice.

(3)   The exercise of the rights provided for in paragraph 3 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but there shall only be such as are provided by law and are necessary.

(a)   For respect of the right or reputation of others,

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

Barendt[18] opines that the debate ‘about free speech is usually more concerned with the scope of the freedom than with the issue whether the freedom should be protected’.[19] However, he concludes that freedom of expression is praised by many albeit with little appreciation.[20]  Currie and de Waal[21] have succinctly argued that freedom of expression is important for three major reasons:

(a)  It facilitates the search for truth;[22]

(b)  It is instrumental to a functioning democracy;[23]

(c)  It is a vital means of fulfilment of the human personality.[24]

(d)  However, Barendt adds an additional ground based on people’s suspicions of government activities.[25]

It must be noted that the scope of freedom of expression is highly contested.[26] ‘What exactly should be covered by a rule protecting freedom of speech?’ asks Barendt.[27]In the main, this scholar conceptualizes freedom of expression by firstly looking at the meaning of speech for purposes of the constitutional guarantee, in particular whether it covers forms of conduct which may be understood as communicating a message.[28] The second stage includes the scope of the freedom of speech: does the recognition of some positive rights to speak or of access to information, or does it necessarily confer only immunities from state bans and other restrictions.[29]

We argue that freedom of expression can be the bedrock for The Gambia to achieve its development objectives. It is also linked to regional strategic imperatives. The aspiration to achieve a ‘New Gambia’ coincides with the African Union’s (AU) vision of “an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the international arena.” The Africa We Want mantra is one premised on “good governance, democracy, respect for human rights, justice and the rule of law,” according to aspiration 3 of Agenda 2063.

Article 9 of The African Charter on Human and Peoples’ Rights (ACHPR) (1981/1986) provides that “every individual shall have the right to receive information[30] and every individual shall have the right to express and disseminate his opinions within the law”.[31]

Additionally, the African Commission on Human and Peoples’ Rights[32] (African Commission) has ruled on Article 9 of the ACHPR in Amnesty International and Others v Sudan;[33] Article 19 v Eritrea;[34] Constitutional Rights Project and Another v Nigeria;[35] Jawara v The Gambia;[36] Law office of Ghazi Suleiman v Sudan (II);[37] Media Rights Agenda and Others v Nigeria;[38] Ouko v Kenya;[39] Zimbabwe Lawyers for Human Rights and Another (on behalf of Meldrum v Zimbabwe;[40] Egyptian Initiative for Personal rights and Interights v Egypt.[41]

In Amnesty International and Others v Sudan, the African Commission held that “where it is necessary to restrict rights, the restriction should be minimal as possible and not undermine fundamental rights guaranteed under international law…Any restrictions on rights should be the exception”.[42] Ultimately, it found that Sudan had violated the right to freedom of expression because it “imposed a blanket restriction on the freedom of expression.”

The African Commission also considered freedom of expression in Article 19 v Eritrea. It reasoned that:

Moreover, banning the entire private press on the grounds that it constitutes a threat to the incumbent government is a violation of the right to freedom of expression, and is the type of action that article 9 is intended to proscribe. A free press is one of the tenets of a democratic society, and a valuable check on potential excesses by government.[43]

The African Commission has also added with equal force and sagacity that:

Freedom of expression is a basic human right, vital to an individual’s personal development and political consciousness, and participation in the conduct of public affairs in his country. Under the African Charter, this right comprises the right to receive information and express opinions.[44]

Nigeria’s case furthermore deals with the limitations of rights under the ACHPR. The Jawara v The Gambia case also carries high probative value. It concerned the erstwhile and deposed former President of the Gambia, Jawara, who was removed from power in 1994 through a coup d’etat. This Communication invoked a bundle of rights under the ACHPR but ruling on Article 9, the African Commission was convinced that:

The government did not provide any defence to the allegations of arrests, detentions, expulsions and intimidation of journalists, made by the complainant. 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 is clearly a breach of the provisions of article 9 of the Charter.[45]

In the main, the decision of the African Commission in Law Office of Ghanzi Suleiman v Sudan (II) reiterates the importance of freedom of expression. It affirms the ‘fundamental importance of freedom of expression and information as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms.’[46]

Media Rights Agenda and Others v Nigeria is authority for the proposition that:

According to article 9 (2) of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one’s opinions; this would make the protection of the right to express one’s opinions ineffective. To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.[47]

The Zimbabwe Lawyers for Human Rights case also adds impetus on freedom of expression. The subject under inquiry can also be examined on the lens of the African Charter on Democracy, Elections and Governance (2007/2012)[48] which seeks to “promote the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs.” Article 6 instructively provides that “State parties shall ensure that citizens enjoy fundamental freedoms and human rights taking into account their universality, interdependence and indivisibility.”

As can be seen above, the African Commission has adopted expansive instruments on freedom of expression among them is the Declaration of Principles on Freedom of Expression (2002). It contains provisions on the guarantee of freedom of expression,[49] interference with it,[50] diversity, [51]freedom of information,[52] private broad casting,[53] public broadcasting,[54] regulatory bodies for broadcast and telecommunications,[55] print media,[56]complaints,[57]promoting professionalism,[58] attacks on media practitioners;[59]protecting reputations;[60]criminal measures;[61] economic measures;[62] and  protection of sources and other journalistic material.[63] Additionally, Resolution 169 on Repealing Criminal defamation law in Africa by the ACHPR of 24 November 2010 amplifies the importance of freedom of expression, firstly, in Africa and importantly, in The Gambia.

 

Freedom of Expression During Jammeh's Era: The Foundation of Sluggish Development Examined

The erstwhile president’s rule was inimical to development.[64] The NDP recognises this fact and states with brevity that:

There is a direct correlation between the denial of fundamental freedoms and the bad governance that existed under the previous regime on the one hand, and the dire economic and social situation inherited by the new government on the other.[65]

The Gambia is a signatory and has ratified treaties major legal instruments that seek to promote and protect fundamental human rights. It is also a member State of the United Nations (UN), AU and Economic Community of Western African States (ECOWAS). In this vain it subscribes to the international human rights contained in the UN Covenant on Civil and Political Rights (ICCPR), UDHR, the ACHPR, and other laws cited in this work.

According to UN standards,[66] everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers[67]. The ACHPR also affirms that every individual has the right to receive information and express and disseminate his or her opinion within the law.[68] Similarly article 19 of the ICCPR provides that everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through the any media and regardless of frontiers. Likewise, in pursuit of the objectives stated in Article 3 of the ECOWAS Treaty, members solemnly affirm and declare their adherence to the principles of recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the ACHPR.

The Constitution of the Republic of Gambia[69] (1997 Constitution) ensures the protection of fundamental rights and freedoms. The Constitution mandates that the fundamental human rights and freedoms enshrined therein must 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 must be enforceable by the courts as required by the Constitution. It succinctly provides that everyone shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.[70] This right is all-encompassing to cover elements like academic freedom, freedom to assemble and demonstrate peaceably without arms.[71] It additionally and importantly confers on persons the freedom to petition the executive for redress of grievances and to resort to the courts for the protection of their justiciable right(s).

However, the country has not had the best of governance records since Jammeh’s reign.[72] In fact, the World Bank[73] classifies The Gambia as a “small and fragile State in West Africa”.[74] It is bounded by Senegal, with a narrow Atlantic coastline. Banjul is the Capital City of the Gambia. The country gained its independence from Britain in 1965. Surprisingly, The Gambia used to be considered as one of the longest continuously surviving multi-party democracy in Africa before Jammeh took over from President Jawara. A period of political upheaval follows after Jammeh’s coup de tat until civilian rule was restored again in 1996. Therefore, The Gambia's post-colonial leaders, in their order, are: Dawda Jawara (Jawara),[75] Jammeh[76]and the incumbent President Barrow who took over in 2017 following a highly contested election.

When the British colonial power extended its franchise in the Gambia its political party system came into being in 1951. Colony based parties were created namely the United Party (UP) and the Muslim Congress (GMC), which dominated politics in colonial Gambia until 1960. The Protectorate Party emerged and became dominant in Gambia between 1960 and 1965 which resulted in many mergers and alliances in the Gambian political party system. Jawara and his Peoples Progressive Party (PPP) dominated the Gambia’s electoral politics, therefore leading the country since its independence in 1965 to 1994. During Jawara’s term in office there were structural adjustment programs induced by the Word Bank and International Monetary Fund (IMF) and these resulted in job losses and disgruntlement among many Gambians, with political opposition resonating louder amongst them.

Jammeh, the lieutenant and his military collaborators toppled the Jawara administration on July 22, 1994. A provisional ruling council was established in order to return the country to civilian democratic rule, then in 1996 at the elections the military leadership retired from the army and formed the Alliance for Patriotic Reorientation and Construction (APRC) which won the elections. The elections was controversial as it was viewed as being rigged by international observers including the US State Department, the European Union and opposition parties, some political parties were said to had been barred from participating in the election.

Jammeh ruled for twenty-two years and his administration was characterised by gross human rights violations. The serious human rights violations included arrests and detentions without giving regard to the Constitution. In tandem, with the Special Rapporteur on Freedom of Expression’s Report above, Jammeh’s reign saw harsh sanction being meted on the intellectual fraternity especially those who dared to exercise their academic freedom.[77] Expectedly, the twenty-two years of military rule turned into civilian style dictatorship in the Gambia. This also caused undue suppression and systematic attack on media freedom and other forms of expressions.[78]

This continued despite the presence of a constitutional injunction in the form of s 25 which provided that:

(1) Every person shall have the right to

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

(b) freedom of thought, conscience and belief, which shall include academic freedom;

(c) freedom to practise any religion and to manifest such practice;

(d) freedom to assemble and demonstrate peaceably and without arms;

(e) freedom of association, which shall include freedom to form and join associations and unions, including political parties and trade unions;

(f) freedom to petition the executive for redress of grievances and to resort to the courts for the protection of his or her rights.

(2) Every person lawfully within The Gambia shall have right to move freely throughout The Gambia, to choose his or her own place of residence within The Gambia, and to leave The Gambia.

(3) Every citizen of The Gambia shall have the right to return to The Gambia.

(4) 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 restriction 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.


In 2013, and in contravention of the laws cited above, President Jammeh’s administration enacted laws that were repressive and inhibitive to freedom of expression and the media.[79] The administration promulgated a law to criminalise[80] the use of social media (internet) to spread ‘false news’ about the government or civil servants.[81] This phase also saw the enactment of a Sedition Law[82] and another one that increased penalties for providing false information.[83] In terms of the Sedition law a fine of D50 000 to 250 000 ($1 060 to $ 5 300) or a jail term or both was prescribed for anyone found guilty of contempt and inciting dissatisfaction against the person of the president or government under Jammeh’s administration. Additionally, the amendment of the Criminal Code increased the prison term from six months to five years and fine from Dalasi (D) 500($12) to D50000 ($1 226) for providing false information to the public with regards to the president, public servant, cabinet minister and members of parliament namely.[84] The internet law prescribed a fifteen-year prison term and a fine of D3million ($63800) for anyone convicted for using the internet to ‘spread false information’, make derogatory statements, incite dissatisfaction or instigate violence against the government or public officials.[85]

Similarly, individuals that publicly or privately criticised the government or president were subject to reprisal.[86] Independent media was restricted, and the seven most prominent daily newspapers could not freely publish editorials as there were also subject to reprisal.[87] The Gambia Press filed a lawsuit in 2015 against the government regarding internet[88] and sedition laws, the case was only resumed when Jammeh’s administration was no longer in power. Radio stations, the state-run broadcaster, the Gambia Radio and Television Services, was subjected to propaganda.[89] Furthermore, as alluded before, government also placed severe restrictions on academic freedom.[90]

To add on, International Non-governmental Organizations wrote many reports that show that Jammeh’s era was characterised by gross human rights violations especially the right to freedom of expression.[91] Amnesty International for example, [92]showed its dissatisfaction several times with the government when the country failed to submit reports on its human situation as a state part to the ICCPR. The government was said to have mounted “systematic attacks on freedom of expression and of the press harassment of human rights defenders and journalists, long term, detention without trial or political detainees.[93] The Observatory for the Protection of Human Rights Defenders issued a statement in 2011, it stated that “the environment for independent and opposition media remained hostile, with numerous obstacles to freedom of expression including administration hurdles, arbitrary arrest and detention, intimidation, judicial harassment against journalists and the closure of media outlets, leading to self-censorship”.

According to a statement issued in 2011 by the Observatory for the protection of Human Rights Defenders, the environment for independent and opposition media remained hostile, with numerous obstacles to freedom of expression,[94] including administration hurdles, arbitrary arrest and detention, intimidating and judicial harassment against journalists and the closure of media outlets, lending to self-censorship.[95]

From the above conspectus, it can be realised that the previous regime in The Gambia flouted most,[96] if not all, legal requirements on freedom of expression contained in national, regional and international law.[97] Noble has observed that “under the previous regime, journalists, civil society activists and ordinary citizens whose actions or words ran counter to the official line of the Jammeh government exposed themselves to risks of arbitrary arrest, imprisonment, mistreatment, torture, disappearance or in some cases death”.[98] The Barrow regime has fortunately expressed commitment to create ‘The New Gambia’ as envisaged in its NDP. As such, the next section briefly discusses this landscape in the context of freedom of expression.

 

The New Era: Tapping into Freedom of Expression’s Might to Promote Sustainable Development?

President Barrow has an ambitious and transformational vision to build ‘[a] country that upholds the highest standard of governance, accountability and transparency; where social cohesion and harmony prevails among communities; citizens enjoy a standard of living and access to basic services to enable them to lead descent and dignified lives; youth, women, children realize their full potential, and a nurturing and caring environment exists for the vulnerable; there is an enabling environment for our private sector to thrive; and our natural heritage is nurtured and preserved for future generations’.[99] The new regime through its National Development Plan (NDP) seeks to “deliver good governance and accountability, social cohesion, and national reconciliation and a revitalized and transformed economy for the wellbeing of all Gambians.”

The Gambia’s NDP rests on eight pillars: restoring good governance, respect for human rights, the rule of law,[100] and empowering citizens through decentralization and local governance;[101] stabilizing  our  economy,  stimulating  growth,  and  transforming  the     economy;  modernizing our agriculture and fisheries for sustained economic growth,     food and nutritional security and poverty reduction; investing in our people through improved education and health services,     and building a caring society; building our infrastructure and restoring energy services to power our     economy; promoting  an  inclusive  and  culture-centred  tourism  for  sustainable     growth; reaping the demographic dividend through an empowered youth; and making the private sector the engine of growth, transformation, and job  creation.[102]

This paper considers a specific issue under pillar one. It is encouraging to note that president Barrow’s plan of action is to review and adopt a new Constitution; amend repressive laws; strengthen the independence and autonomy of and indigenise the judiciary; leverage on Information Communications Technology to improve and up justice delivery; strengthen the office of the Ombudsman, Alternative Dispute Resolution Secretariat (ADRS) in aid of greater access of justice delivery; human rights will be improved using the transitional justice mechanism, the Truth and Reconciliation and Reparation Commission.[103]

In the spirit of this endeavour, a Constitutional Reform Commission (CRC) was established by The Gambian National Assembly in December 2017 to oversee the writing of a new Constitution in the country.[104] This followed the introduction by the Minister of Justice, Aboubacarr Tombadou, of the Constitutional Review Commission Act, 2017.[105] This law provides “for the establishment of a CRC to draft and guide the constitutional making process i.e. a new constitution for The Gambia.” Section 6 of the Act fleshes out the duties of the CRC to include the drafting of a Constitution; seek public opinion and take into account such proposals as it considers appropriate; adhere to national values and ethos; safeguard and promote enumerated matters. The independence of this body is guaranteed.

It is important to reiterate the context of this process. These reforms were ushered in after the candidate for the coalition of seven political parties Barrow defeated Jammeh on December 1 2016. Pertinently, international observers deemed it a peaceful and credible election. President Barrow was sworn into office in January 2017. Therefore, since the Jammeh’s administration was characterised by gross human rights violations, the new government brought about a number of positive changes in the human rights fraternity.

One of the significant efforts by the new government to create a more conducive government for freedom of expression are typified by the Justice department’s concession that the country’s Sedition laws and provisions pertaining to criminal defamation and false publication on the internet were unconstitutional. Similarly, the government also established the Truth and Reconciliation Commission (TRRC), under the auspices of the Ministry of Justice, to probe on the human rights abuses conducted during Jammeh’s era. Furthermore, an independent National Human Rights Commission was also established by the National Assembly. Several Non-Governmental Organizations and government agencies actively and freely publicised the new laws in the local community. The new government has passed a law to spearhead constitutional reform and it is expected to fundamentally guarantee the right to freedom of expression.

According to recent reports, individuals can express their opinions without fear of victimisation. Positively, more media houses have emerged since the change in government, including a television station. The seven most prominent daily newspapers can now freely publish articles that criticise the government without fear of reprisal. Another positive development is that radio stations throughout the country could include programs that encourage political and civil discourse. The Gambia Radio and Television Services GRTS has also become a platform for political discourse, the face the nation show brings together policy makers, including cabinet ministers, to review and discuss government policies.

According to the Human Rights Watch 2017 Report on The Gambia, the government has respected media and opposition freedom and also further promised to repeal all laws. However, some laws that hindered freedom of expression under the old regime are still extant. The Gambia Press Union continues to challenge the law on ‘false news’ in an attempt to decriminalise it. The new government has nonetheless maintained its position that the criminalisation of publication of false news places a reasonable restriction necessary for democracy.

In August 2017, opposition leader, Mamma Kandeh was questioned by the police on allegations he made against the coalition government of pocketing loans that it secured from financial institutions. Two months later the leader of APRC was also questioned by the police in connection to statements he made which accused the coalition government of victimising individuals who support his party. In January Seedy Njie was also arrested and questioned in relation to a comment he made regarding the release of a party supporter in detention. In January 2018 as well a University Lecturer was also detained with regards to a comment, he made on the countries situation.

 

Conclusion

To sum up, freedom of expression is an indispensable right. It is a positive feature of democratic and progressive states.[106] This paper has argued lucidly that The Gambia has shown a great commitment (evinced by the policy architecture and empirical evidence) to good governance and the rule of law. The NDP constitutes a progressive step in the right direction, but if not followed up by practical efforts; its vision will not be achieved. It is important for the new regime to reconsider its obligations under international law as espoused above. Its genuine commitment to democracy will be tested by its ability to repeal all reprehensible laws, and importantly, take strides to strike a balance between freedom of expression and other state interests to place reasonable, just and democratic restrictions on this inalienable right.

In the main, we started this paper by surveying some seminal decisions of the African Commission, Supreme Court of The Gambia, provisions of the ACHPR, UDHR, ICCPR and other relevant laws. The overarching purpose of the paper was to present freedom of expression as a necessary ingredient for sustainable development. Therefore, if President Barrow is genuine about his vision to build a ‘New Gambia’, he will continue to open up ‘space’ for the media, academia, civil society and others to freely articulate their views and thereby contribute to social, economic, political and cultural discourse.  This, therefore, places freedom of expression at the centre of the AU’s call for everyone to contribute towards an integrated, peaceful and people-driven Africa. How will this vision be realised if individual freedoms are unjustifiably infringed? We, however, submit, that this ambitious aspiration, must go beyond mere rhetoric and be premised on prior, free and informed consent; collaborative partnerships; promotion, protection, respect and fulfilment of human rights;  and local ownership of the constitutional making process by ordinary Gambians.

The above recommendations are made cognisant of Acemoglu and Robison’s[107] treatise that institutions are central for development to occur. These scholars argue convincingly that countries like South Korea, Botswana, Singapore, the United States of America, and indeed most developed ones, owe their prosperity to inclusive economic and political institutions. The converse is true, however, for poor countries, whose economic performance has been sluggish as a result of extractive economic and political institutions. This argument is relevant in our context. The reason being that law is classified under the broad umbrella of ‘institutions’ which North,[108] called ‘rules of the game.’ In the main, we argue that the reason why The Gambia performed poorly during Jammeh’s reign can be attributed to the structure of institutions (legal framework) that existed during his reign. He used or manipulated institutions to consolidate power and benefit himself and his cronies to the exclusion of the ordinary Gambians. In light of this, we borrow from Acemoglu and Robinsin’s analogy that South Korea managed to develop rapidly compared to North Korea as a result of inclusive institutions. So, the key message, we are advocating for is clear, that Barrow’s regime must guarantee freedom of expression to promote accountability and transparency. As such, future researches may find it fascinating to consider this governance and economic development dichotomy further.

Bibliography

Statutes

  1. Constitution of the Republic of The Gambia, 1997
  2. Criminal Code [Cap.10:01]

 

Cases

  1. Amnesty International and Others v Sudan 2000) AHRLR 297 (ACHPR 1999)
  2. Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007)
  3. Constitutional Rights Project and Another v Nigeria (2000) AHRLR 235 (ACHPR 1999)
  4. Jawara v The Gambia; (2000) AHRLR 107 (ACHPR 2000)
  5.  Law office of Ghazi Suleiman v Sudan (II) (2003) AHRLR 134 (ACHPR 2003)
  6.  Media Rights Agenda and Others v Nigeria (2000) AHLR 200 (ACHPR 1998)
  7. Ouko v Kenya (2000) AHRLR 135 (ACHPR 2000)
  8.  Zimbabwe Lawyers for Human Rights and Another (on behalf of Meldrum v Zimbabwe; (2009) AHRLR 268 (ACHPR 2009)
  9. Egyptian Initiative for Personal rights and Interights v Egypt (2011) AHRLR 90 (ACHPR 2011)
  10. Gambia Press Union v The Attorney General SC Civil Suit No. 1/2014
  11. Ousainou Darboe & 19 Ors v. Inspector General of Police & Ors [2017]
  12. Emil Touray and 2 Ors v The Attorney General SC Civil Suit No. 001/2017

 

International Legal Instruments

  1. Universal Declaration of Human Rights (UNDHR) 1948
  2. International Covenant on Civil and Political Rights (ICCPR)
  3. The African Charter on Human and Peoples’ Rights (ACHPR) (1981/1986)
  4. Declaration of Principles on Freedom of Expression in Africa (2002).
  5. Resolution 169 on Repealing Criminal defamation law in Africa by the ACHPR of 24 November 2010

 

Textbooks, Journal Articles and Other Sources

  1. D Acemoglu & J Robinson Why Nations Fail: The Origins of Power, Prosperity, and Poverty Crown Publishing Group (2012)
  2. D C North, “Institutions” The Journal of Economic Perspectives Vol. 5, No. 1 (1991) pp.97-112
  3. Eric Barendt Freedom of Speech 2nd ed Oxford University Press (2015)
  4. J.Raz, ‘Freedom and Personal Identification’ (1991) 11 OJLS 303
  5. I Currie & J de Waal The New Constitutional & Administrative Law Volume 1 (Juta) (2001)
  6. The World Bank, “The Gambia Overview”: https”//www.worldbank.org/en/country/gambia/overview
  7. Mad Jobarteh, “From dictatorship to a new Constitution in The Gambia: Issues and Concerns,” CONSTITUTION NET, 22 January 2018 available at constitution.net.org/news/dictatorship-new-constitution-gambia-issues-and-concerns
  8. The Gambia’s National Development Plan [2018-2021].https://www.theeverywoman.org/images/PDF/Gambia_National_Development_Plan-2018_2021.pdf
  9. African Commission on Human and Peoples’ Rights: 2007 Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information at the 41st Ordinary Session.


[1] Declaration of Principles on Freedom of Expression in Africa (2002).

[2] See generally, Coyne, Christopher J. "Reconstructing weak and failed states: Foreign intervention and the nirvana fallacy." Foreign Policy Analysis 2, no. 4 (2006): 343-360.  Ogechukwu Jennifer Nzewigbo, ‘ECOWAS Intervention and Democratization in West African Sub-region (A Study of Gambia 2016 General Election)’ PhD dissertation 2018.

[3] Alieu Darboe and Pro Democracy Activist, ‘The Gambia: 1994–Present’ International Center on Non-violent Conflict (2010).  Miracle Obeta, ‘A Tale of Two Regimes/countries: A Comparative Analysis of Democratic Transitions in Ghana and the Gambia’ PhD diss., Miami University, 2009.  Andreas Schedler, ‘The menu of manipulation’ Journal of democracy 13, no. 2 (2002): 36-50.

[4] Edrissa Sanyang and Camara Sanna, ‘The Gambia after Elections: Implications for Governance and Security in West Africa’ Friedrich-Ebert-Stiftung Peace and Security, 2017;  Lesley Connolly, ‘Sustaining Peace in the “New Gambia”’ Conflict Trends (2018): 1; Satang Nabaneh,’ The Gambia’ (2018): 232-248;  Abdoulaye Saine and Paula Saine, ‘Critical Holistic Educational Model: Re-constructing a (Post-Jammeh) Democratic Society in Gambia’ International Journal of Learning 18, no. 10 (2012). Niklas Hultin, Jallow Baba, Benjamin N. Lawrance and Assan Sarr, ‘Autocracy, migration, and The Gambia's ‘unprecedented’2016 election’  African Affairs 116, no. 463 (2017): 321-340.

[5] Shyllon Ololade, ‘The link between socio-economic rights and the decriminalisation of laws that limit freedom of expression in Africa: feature.’ ESR Review: Economic and Social Rights in South Africa 13, no. 3 (2012): 7-10.  Edrissa Sanyang, and Camara Sanna, ‘The Gambia after Elections: Implications for Governance and Security in West Africa’ Friedrich-Ebert-Stiftung Peace and Security, 2017.

[6]Excerpt from the President’s foreword to The Gambia’s National Development Plan [2018-2021]:

https://www.theeverywoman.org/images/PDF/Gambia_National_Development_Plan-2018_2021.pdf  accessed 20 February 2019 (added emphasis).

[7] Thepoint.gm (Friday, December 07, 2018).

[8] Agnos Callamard, ‘Accountability, transparency, and freedom of expression in Africa’ Social Research: An International Quarterly 77, no. 4 (2010): 1211-1240. House Freedom, ‘Freedom on the Net 2015’  Obtenido de https://freedomhouse. org/sites/default/files/F OTN 202015 (2015).

[9] Senghore Aboubacar Abdullah, ‘Press freedom and democratic governance in The Gambia: A rights-based approach." African Human Rights Law Journal 12, no. 2 (2012): 508-538.

[10]Rachel Murray, ‘Recent developments in the African human rights system 2007’ Human Rights Law Review 8, no. 2 (2008): 356-376; Lene Johannessen, ‘A critical view of the constitutional hate speech provision’ South African Journal on Human Rights 13, no. 1 (1997): 135-150; Eribo Festus and William Jong-Ebot, eds, ‘Press freedom and communication in Africa’ Africa World Press, 1997; Albie Sachs, ‘Preparing ourselves for freedom’ Writing South Africa: Literature, Apartheid, and Democracy, 1970–1995 (1998): 239-48; Philip G Altbach, ‘Academic freedom: International realities and challenges." Higher education 41, no. 1-2 (2001): 205-219; Dlamini, C. R. M. ‘The violation of human rights in Africa: a lesson for South Africa?’ South African Journal on Human Rights 7, no. 3 (1991): 291-303; Michael Kent Curtis, ‘Free speech, ‘the people’s darling privilege: Struggles for freedom of expression in American history’ Duke University Press, 2000; Issa G Shivji, ‘The concept of human rights in Africa. African Books Collective, 1989; Faringer, Gunilla L. Press freedom in Africa. Greenwood Publishing Group, 1991; Evans, Malcolm, and Rachel Murray, eds, ‘The African Charter on Human and Peoples' Rights: The System in Practice 1986–2006 Cambridge University Press, 2008; Nyamnjoh Francis B, ‘ Africa's media: Democracy and the politics of belonging’ Zed Books, 2005; Heinz Klug,  Constituting democracy: Law, globalism, and South Africa's political reconstruction’ Cambridge University Press, 2000; Korwa G Adar and Isaac M. Munyae, ‘Human Rights Abuse in Kenya Under Daniel Arap Moi, 1978’  African Studies Quarterly 5, no. 1 (2001); Nzongola-Ntalaja  Georges and Margaret Carol Lee, eds’ ‘The state and democracy in Africa’ Africa World Press, 1998; Manisuli   Ssenyonjo ed,  The African regional human rights system: 30 years after the African Charter on Human and Peoples' Rights’ Martinus Nijhoff Publishers, 2011.

[11]The Special Rapporteur on Freedom of Expression was established by the African Commission on Human and Peoples’ Rights with the adoption of Resolution 71 at the 36th Ordinary Session held in Dakar, Senegal from 23rd November to 7th December 2004.    African Commission on Human and Peoples’ Rights http://www.achpr.org/mechanisms/freedom-of-expression/

[12] Gunilla L Faringer, Press freedom in Africa. Greenwood Publishing Group, 1991.

[13] SC Civil Suit No. 1/2014.

[14] Ibid 25.

[15] SC Civil Suit No. 001/2017.

[16] This argument is supported by the preamble to the Declaration of Principles on Freedom of Expression in Africa (2002) which reiterates “the fundamental importance of freedom of expression as an individual right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms.” Welch Jr, Claude E. "The African Charter and freedom of expression in Africa." Buff. Hum. Rts. L. Rev. 4 (1998): 103.

[17] Article 19.

[18] Eric Barendt, Freedom of Speech (2nd ed Oxford University Press 2015).

[19] Ibid 1.

[20] Ibid. See also Joseph Raz, ‘Freedom and Personal Identification’ (1991) 11 OJLS 303.

[21] I Currie & J de Waal, The New Constitutional & Administrative Law (Volume 1 Juta 2001). See also, South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) para 7.

[22] Ibid 373. See Barendt (n 18) 7.

[23] Ibid. See also Barendt (n 18) 18.

[24] Ibid. See Barendt (n 18) 13.

[25] Barendt (n 18) 21.

[26] Ibid 1.

[27] Ibid 74.

[28] Ibid.

[29] Ibid.

[30] Article 9 (1) of the ACHPR.

[31] Article 9 (2) of the ACHPR.

[32] See also Nmehielle Vincent Obisienunwo Orlu, The African human rights system: its laws, practice, and institutions. Vol. 69. Martinus Nijhoff Publishers, 2001.

[33] (2000) AHRLR 297 (ACHPR 1999).

[34] (2007) AHRLR 73 (ACHPR 2007).

[35] (2000) AHRLR 235 (ACHPR 1999).

[36] (2000) AHRLR 107 (ACHPR 2000).

[37] (2003) AHRLR 134 (ACHPR 2003).

[38] (2000) AHLR 200 (ACHPR 1998).

[39] (2000) AHRLR 135 (ACHPR 2000).

[40] (2009) AHRLR 268 (ACHPR 2009).

[41] (2011) AHRLR 90 (ACHPR 2011).

[42] Para 80.

[43] Para 107.

[44] Para 36.

[45] Para 65.

[46] Para 40.

[47] Para 66.

[48] Also called the Democracy Charter.

[49] Article 1 (1) and (2) of the Declaration enunciates the content, scope and protection of the right to freedom of expression. It, in a peculiar manner, reiterates what is already contained in binding and persuasive human rights instruments. However, this stand-alone Declaration is progressive given the importance of freedom of expression and bleak colonial past. And importantly, it can be construed in light of the rise of benevolent dictators in the continent post-independence.

[50] The wording used in the provision is indicative of a prohibition, that is, “no one shall be subject to arbitrary interference with his or her freedom of expression,” means that there is a requirement on the part of the State to provide cogent reasons for limiting this right and more important, the limitation must “serve a legitimate interest and be necessary and in a democratic society.” We, however, note, that Article 2 (2) may be prone to abuse..

[51] Article 3 provides that:

“Freedom of expression imposes an obligation on the authorities to take positive measures to promote diversity, which include among other things:

-availability and promotion of a range of information and ideas to the public;

-pluralistic access to the media and other means of communication, including by vulnerable or marginalized groups, such as women, children and refugees, as well as linguistic and cultural groups;

-the promotion and protection of African voice, including through media in local languages; and

-the promotion of the use of local languages in public affairs, including in the courts.”

[52] Article 4 recognises the administrative function of public bodies to be custodians of information on behalf of the people. It also confers a right to persons to access information subject to laid down rules. Further, the provision calls for the legal protection of and prescribes the following criterion on the right to information:

-a general legal right to access information held by public and private bodies but in the latter case, access must be “necessary for the exercise or protection of any right”;

-It grants an administrative remedy in the event occasion of an unsuccessful bid to be given requested information. An aggrieved party may lodge an appeal to an independent body and/or the courts;

-There is a peremptory requirement to “publish important information of significant public interest” even without an formal request lodged by  a party for it to do so;

-It regulates and provides for a sanction for releasing information;

-Encourages States to amend secrecy laws to ensure compliance with the tenets of the Declaration;

-Lastly and importantly, it grants a right to access and update personal information held by a public or private body.

[53] Article 5 places a prohibition on state monopoly over broadcasting and articulates the need to promote diversity by embracing independent private broadcasting. It fleshes out how this aspiration must be achieved in practice. As such, if implemented, this is a positive step toward the attainment of democracy. Of late, there has been a fair trajectory on community and private radio station in The Gambia.

[54] Article 6.

[55] Article 7.

[56] Article 8.

[57] Article 9.

[58] Article 10.

[59] Article 11.

[60] Article 12.

[61] Article 13.

[62] Article 14.

[63] Article 15.

[64] Jallow, Alagi Yorro. "Murder, Threats, Fires and Intimidation in Gambia." Nieman Reports 60, no. 2 (2006): 10. Jatula, Victor. "Media and underdevelopment in Anglophone west Africa." African Research Review 13, no. 2 (2019): 13-25.

[65] National Development Plan shortened version at 4. See also Carlene J Edie, ‘Democracy in The Gambia: Past, present and prospects for the future’ Africa Development 25, no. 3 (2000): 161-198.

[66] Relevant instruments have been discussed.

[67] The UDHR.

[68] The ACHPR.

[69] The new regime has set in motion efforts to repeal this law by adopting the Constitutional Review Commission Act, 2017. This process will cause a complete overhaul to the entire legal system since it anticipates the drafting and promulgation of a Constitution. This move comes after arguments by ordinary Gambians that the 1997 Constitution is not a ‘people-centred Constitution’ but the ‘Jammeh Constitution.’ There is general optimism to build “The New Gambia” which breaks away from undemocratic tendencies. This vision is aptly couched in the country’s National Development Plan, which has eight priorities. In the context of the present study, it await with anticipation proposed changes on s 25 of the Jammeh Constitution which regulates free speech.

[70] Section 25 of the Constitution.

[71] Ibid.

[72] Mohamed Saliou Camara, ‘Media, civil society, and political culture in West Africa’ Ecquid Novi 29, no. 2 (2008): 210-229; Abdoulaye S Saine, ‘The Military And “Democratization” In the Gambia: 1994–2002’ Political Liberalization and Democratization in Africa: Lessons from Country Experiences (2003): 179-96; Ousman AS Jammeh, ‘The Constitutional Law of the Gambia: 1965-2010. Author House, 2011.

[73] One of the multilateral institutions.

[74] The World Bank, ‘The Gambia Overview’: https”//www.worldbank.org/en/country/gambia/overview

[75] 1965 to 1994.

[76] 1994 to 2017.

[77] Edward McAllister, Reuters 8th January 2017, ‘Gambian Authorities Shut three radio stations amid post-election crisis.’

[78] See generally, Matt J Duffy, ‘Konaté v. Burkina Faso: An analysis of a landmark ruling on criminal defamation in Africa’ Journal of International Media and Entertainment Law 6, no. 1 (2016): 1-20.

[79] See generally, James S Read, ‘Criminal law in the Africa of today and tomorrow’ Journal of African Law 7, no. 1 (1963): 5-17.

[80] Baglo, Gabriel Baglo, ‘The journalists working conditions in Africa’ Paper issued on UNESCO world press freedom day. Accessed on 12, no. 10 (2008): 2012.

[81]Ian Noble, ‘Freedom of Expression and Media Pluralism in The Gambia: Analysis in the Context of Democratisation and Transitional Justice’ (February 2018) < www.media4democracy.eu> See Alagi Yorro Jallow, ‘Murder, Threats, Fires and Intimidation in Gambia’ Nieman Reports 60, no. 2 (2006): 10.

[82] Benjamin   Herskovitz,   ‘Speaking Truth to Power: Criminal Defamation before the African Court on Human and People's Rights’ Geo. Wash. Int'l L. Rev. 50 (2017): 899.

[83] Andreas Schedler, ‘The menu of manipulation’ Journal of democracy 13, no. 2 (2002): 36-50.

[84] Essa Njie, ‘The Gambia's human rights situation in relation to freedom of expression: Achievements and Challenges’ May 18, 2018 https://www.lawhubgambia.com/lawhug-net/wwwlawhubgambiacom/safeguarding-freedom-of-speech-gambia

[85] Ibid.

[86] Larry Diamond, ‘The rule of law versus the big man’ Journal of Democracy 19, no. 2 (2008): 138-149.

[87] Gabriel Baglo, ‘The journalists working conditions in Africa’ Paper issued on UNESCO world press freedom day. Accessed on 12, no. 10 (2008): 2012.

[88] CK, P. ‘Social media threatens despotic governments and online activists pay the price.’

[89] Maggie Dwyer, ’Borrowed scripts: democratisation and military mutinies in West and Central Africa’ Conflict, Security & Development 15, no. 2 (2015): 97-118.

[90] Peter Von Doepp and Daniel J. Young, ‘Holding the state at bay: Understanding media freedoms in Africa’ Democratization 23, no. 7 (2016): 1101-1121.  Peter Von Doepp and Daniel J. Young, ‘Assaults on the fourth estate: Explaining media harassment in Africa’ The Journal of Politics 75, no. 1 (2012): 36-51. Conway Waddington, ‘Portrait of an archetypical dictator in The Gambia’ Africa Conflict Monitor 2015, no. Sep 2015 (2015): 50-56.

[91] Alan Fowler, Striking a balance: A guide to enhancing the effectiveness of non-governmental organisations in international development. Routledge, 2013.

[92] Amnesty International Press release 3rd February 2002, “Gambia: missed opportunity to promote human rights.” 

[93] Senghore, Aboubacar Abdullah, Democracy, Human Rights and Governance in The Gambia: Essays on Social Adjustment. Cenmedra, 2018.

[94] World Report 2018, Human Rights Watch, ‘Gambia: Events of 2017.’

[95] Nancy Bermeo, ‘On democratic backsliding’ Journal of Democracy 27, no. 1 (2016): 5-19.

[96] Karin Deutsch Karlekar, ‘Press Freedom in 2008: Restrictive laws and physical attacks fuel further declines’ (2007).

[97] Jammeh, Buya. "All change." Index on Censorship 41, no. 1 (2012): 146-147.

[98] Noble (n) 6.

[99] NDP summarized version at 7. Added emphasis

[100] Ogundimu, Folu Folarin. "Media and democracy in twenty-first-century Africa." In Media and democracy in Africa, pp. 207-238. Routledge, 2017.

[101] This is important for purposes of this paper.

[102] Ibid 8.

[103] Ibid.

[104] Mad Jobarteh, ‘From dictatorship to a new Constitution in The Gambia: Issues and Concerns’ CONSTITUTION NET, 22 January 2018< constitution.net.org/news/dictatorship-new-constitution-gambia-issues-and-concerns>

[105] Ibid.

[106]Hazel M Mcferson, ’Democracy and development in Africa’ Journal of Peace Research 29, no. 3 (1992): 241-248.  William H Dutton, ‘Freedom of connection, freedom of expression: the changing legal and regulatory ecology shaping the Internet’ UNESCO, 2011. Marina Guseva, Mounira Nakaa, K. Pekkala, B. Souberou, and S. Stouli, ‘Press freedom and development’ (2008).  Paul AV Ansah, ‘Blueprint for freedom’ Index on censorship 20, no. 9 (1991): 3-8.  Michael J Trebilcock and Ronald J. Daniels, Rule of law reform and development: charting the fragile path of progress. Edward Elgar Publishing, 2009. William H Dutton, Anna Dopatka, Michael Hills, Ginette Law, and Victoria Nash, ‘Freedom of connection–freedom of expression’ Report prepared for UNESCOs Division for Freddom of Expression, Democracy an Peace (2010); Tarlach McGonagle and Yvonne Donders eds, The United Nations and freedom of expression and information: critical perspectives. Cambridge University Press, 2015. Vincent O Nmehielle, ‘Development of the African human rights system in the last decade’Human Rights Brief 11, no. 3 (2004): 3. Ololade Shyllon, ‘The link between socio-economic rights and the decriminalisation of laws that limit freedom of expression in Africa: feature’ ESR Review: Economic and Social Rights in South Africa 13, no. 3 (2012): 7-10.

[107] D Acemoglu & J Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty Crown Publishing Group (2012).

[108] DC North, ‘Institutions’ The Journal of Economic Perspectives Vol. 5, No. 1 (1991) pp.97-112.