Alagi Yorro Jallow
The world has changed and is changing. It has become smaller. Communications have grown faster and more direct. Thanks to the Internet, people now have direct access to a platform that allows them to communicate with friends and strangers all at once, at the literal click of a button.
This cybercrime law which was enacted by the previous regime of Yahya Jammeh, in other words, will not only deprive Gambians of their constitutionally guaranteed liberties. It will deprive them of their place in the world as it has evolved and continues to evolve. It will deny them their place in a world and time where free expression is not only a right but also integral to the way of living, of competing, of surviving, of being. The law explicitly brings the archaic libel law…into the realm of the Internet.
As stated by Justice Louis D. Brandeis, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
The Gambian government has, for many years, weighed down citizens and the media with laws that criminalize speech – such as cyber-libel, the publication of false information, seditious libel and criminal defamation – just to cow them from being critical of the government and its policies.
The Gambian cybercrime law as approved, limits common people to speak out what is in their minds against people in both the private and public limelight. Our mouths and minds are gagged by this law. The right of the freedom of speech is infringed, thus, limiting the democratic expressions of what people are really talking about. Even jokes are under scrutiny; and much more with lampoon writings will be dissected and examined more fully to get the real meaning of every word in it. I believe this cybercrime law is only benefiting, protecting people in the government and multinational business agents and it further subdue the right to information.
No matter what the authorities say, the criminalization of libel is not reasonably justifiable in a democratic society! It is in fact a monarchial, archaic and backward law! It is never helpful to freedom of expression to jail journalists and non- journalists for libel. It is better addressed in civil courts without putting the right to freedom of expression itself in jeopardy.
Over the past decade, in many instances where the Yahya Jammeh-led government has, through the application of these laws, forced many citizens and journalists into exile, arbitrarily detained or disappeared.
The draconian laws have been passed at a time that the African Commission on Human and Peoples' Rights (ACHPR) headquartered in the capital, Banjul. Many African Civil Society Organizations (CSOs) petitioned the ACHPR to relocate from the Gambia, in protest the perpetually poor human rights record of the country.
“A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
Libel has been possible only through published or broadcasted content. Such content has been the domain of the edifices and establishments that are regulated by government, and thereby accredited to have some claim to the public trust. And so, these products of whole organizations, content expected to have run the gauntlet of editorial diligence, are expected to be factual—harking back to the old saying, “if it’s in print, on the radio, or on TV, then it must be true.” So, libel has been a crime committed by entities that claimed, explicitly or not, to be sources of substantiated facts.
In contrast, personal musings posted on social networks such as Facebook and Twitter make no such claim. That such products of personal expression can potentially reach a wider audience than that of traditional media, and that these can gain weight and credibility by the likes and shares that effectively endorse them to ever widening circles of readers, there is no doubt.
Certainly, such personal expressions can rival the power of established media content. But, the widespread acceptance that can make social content equivalent to news reports on print, radio and TV is earned through the agreement and advocacy of the readers who choose to share these further, and not by claims of journalistic fidelity by its authors.
Social content is composed of opinions meant to be read only by the author’s friends. And those friends, like the author, are free to believe what they want, like what they want, and share what they want. Can these circles of friends be treated like organized media outfits and, like them, be held liable for libel? I think not.
On 16 April 2013, the National Assembly of the Gambia amended sections of the country's criminal code to empower the courts to mete out stiffer punishments to persons found guilty of giving false information to public officials.
The new law, which is an amendment to section 114 of the country's criminal code, empowers the courts to impose a jail term of five years, or a fine of D50,000 (about US $1,650) for a misdemeanor that previously attracted a jail term of not more than six months or D500 (about US $17).
Apart from stiffer punishments, new law also classifies the president, vice president, speaker, deputy speaker and members of the National Assembly as public officers.
The classification approved by the National Assembly is inconsistent with section 166 (4) of the country's constitution, which does not recognize these officials as public officers.
The offence of giving false information to a public servant has long been considered draconian and inconsistent with certain provisions of the country's constitution as well as provisions of other international and regional treaties, to which Gambia is a signatory.
The National Assembly again on July 4, 2013 amended the 2009 Information and Communication Act to introduce a 15-year jail term and fine of 3 million Dalasis (about US$100,000) to any individual convicted of using the internet to spread false news or make derogatory statements, incite dissatisfaction, or instigate violence against the government or public officials. The penalties apply to individuals living in the country or abroad.
Former Information Minister Nana Grey Johnson said the amendment had been passed to prevent Gambians from engaging in "unpatriotic behavior" against the government and public officials.
Despite the view of the United Nations Committee on Human Rights Cybercriminal, libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression.
Gambia's new Information and Communication Minister, Demba Ali Jawo, should repeal and replace the amended 2013 Information and Communication Act on Cybercrime Prevention Law which, among other things, added electronic libel as a new criminal offense for journalists and diaspora activists using the internet.
This means that electronic libel is now punished with imprisonment from 15 years, while those convicted for ordinary libel under the Criminal Code are subject to imprisonment only from five years to six months in prison with hefty fine.
Since the Gambia is no exception in the world in terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints which are oftentimes brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution. The fact that an allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.
The question being: are social media like Facebook and Twitter platforms for private or public expression? The Cybercrime law has answered that question. Anything you do online – writing, posting, sharing, "liking" – is essentially publication and for that matter broadcasting. Nothing is private. Everything is actionable, and potentially criminal.
One legal luminary Albert Francis says he did not see the provision or did not appreciate its implications. He also did not see additional clauses that aggravate the penalties – greater fines, longer prison terms – for libel when found and proved online. Nor the provision that would allow libel's prosecution twice over, offline and then online, violating constitutional guarantees against double jeopardy.
And it's retroactive, too, experts now say. Or at least, it will erase the very concept of retroactivity. Because the Internet potentially keeps your posts, tweets, and status updates live in perpetuity – or at least until the Cybercrime law pushes you, as it will, to take everything down – there is no past date beyond which the long arm of the law cannot reach.”
In other words, the assailed law, as soon as it comes into effect, immediately stifle the freedom of Gambians to express themselves, in what is by far, the most democratic medium ever created by humankind. The law stifles not only speech, but thought, altering not only words but action. At every turn and at every moment online, Gambians will have a specter of subsequent punishment hanging over them, effectively acting as prior restraint.
The Information and Communication Amended provision 2013 is an outright defiance of the UN Human Rights Committee on the case of the Gambia’s Cybercrime Prevention Law. In that view, the UNHRC declared that the Gambia libel law under the Information and Communication Act 2013 contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel, or the payment of damages.
The UNHCR also took the view that libel law in the Gambia, because it does not recognize truth as a defense, is additionally defective on this ground.
Our constitutional commitment to freedom of expression has long been recognized. Justice Holmes, for instance, wrote: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . ..”
The commitment exists because it is only through freedom of expression that we are able to discern the truth and able to fiscalize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas- the internet. Prior to this law, it is ironic that the Gambia was even cited by the United Nations for not interfering with the internet. The law is a testament to the reality that despite the overwhelming mandate given to the government, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the market place of ideas.
A lawyer I count as friend once reminded me that provisions of law are explicit, that one may not infer other provisions no matter how implicit the law may be.
Relying on his expert opinion, I conclude Honorable Minister for Information and Communication amend the anti-cybercrime law, whether to repeal or replace its libel clause or to correct its formulation. For a law like other laws that enjoy the presumption of regularity, this cybercrime law, in so far as it infringes on freedom of expression, and with heavy presumption of unconstitutionality.