Between Scylla and
Charybdis
Why Section 114
of the Criminal Code Must be Scrapped
As
incredible as it may sound to legal and political observers, The Gambia
Government is in the process of expanding the punitive contours of Section 114
of the Criminal Code, Volume III, Laws of The Gambia,
2009 (Section 114). From a misdemeanour attracting a maximum
penalty of D500, and, or, six months imprisonment, the proposed amendments to Section
114, currently gazetted as a condition preliminary to the changes, ratcheted its
punitive ambit to D50,000, and, or, five years imprisonment. However viewed,
this is an utterly objectionable use of public power in a country presenting
itself as an accountable democratic republic.
Section
114 is not only repugnant to the 1997 Constitution of the Republic of The
Gambia (the Constitution), in at least two instances, it represents a direct
affront to the treaty obligations of The Gambia. Even in its comparatively
milder current form, Section 114 violates Article 19 of the International
Covenant on Civil and Political Rights (ICCPR), as well as Articles 9 (the right
to express and disseminate opinion within the law), & 13 (the right to
participate freely in government either directly or through freely chosen
representatives in accordance with the provisions of the law), of the African
Charter on Human and Peoples’ Rights (ACHPR). Against the impossible threshold
it must negotiate to become lawful, Section 114 must be scrapped, not
rejuvenated. As law, it is abusive in the extreme, and no modern government even
slightly enamoured of the human rights and dignity of its citizens can allow it
on its statute books.
It appears that
the wholly unnecessary concepts of “public service”, “public servant”, and even
“public office” are introduced into the Constitutional text as some kind of
management tool. In its determination to leave nothing to chance, to probably
micromanage public life in its entirety, the political midwives of the
Constitution elevated certain offices beyond the reach of ordinary civil
service rules. Even in a bona fide rule of law jurisdiction,
such precautions may not be necessary as able and independent minded jurists
must demonstrate restraint and exercise requisite sensitivity to the species of
dispute properly termed “political question”, i.e., one in which the Courts
ought to decline jurisdiction because an issue fell within the exclusive legal,
and, or conventional competence of the Executive, or the Legislature. Although
169 (2) is a section that invites interpretational opportunism, the prudent and
just approach would appear to be that communications addressed directly to the
President may be regarded incapable of triggering the so-called Section 114
offence. In strict commonsense terms, the President is of course the
preeminent public servant, but in light of the background against which we are challenging
the legality of Section 114, the pertinent Constitutional provisions thrown
into the mix must be strictly construed against the Government that crafted and
shepherded this labyrinthine document into law.
Now
that the Government has categorically conceded the
clear command of section 166 (4) (a) that “the offices of President, Vice
President, Speaker or Deputy Speaker of the National Assembly, Secretary of
State or a member of the National Assembly” are not offices in the public
service (see Foroyaa Newspaper, 02 April, 2013), it must compensate that
category of person(s) who suffered needless and unlawful arrest, or detention,
or prosecution, or conviction under Section 114. If the Constitution, as it does, places
the Presidency outside the public service, the President cannot be regarded as
a “public servant” and no one should be prosecuted for giving him “information”,
whether that information is “false”, truthful, or an amalgam of truth and
falsity.
Incredibly, the
Government justified its gazetted amending bill to the already repugnant and
infamous law as intended “to ensure effective
administration of criminal justice system, and specifically”:
section 114 of the Criminal Code which create the
offence of giving false
information to a Public Officer is found to be
grossly inadequate to the extent that
sections 166(4) and section 167 of the 1997
Constitution of the Republic of The
Gambia exclude the President, Vice President,
Speaker or Deputy Speaker of the
National Assembly, Ministers or
Members of the National Assembly, etc. From
the definition of ‘public officer’ and therefore
outside the contemplation of the
Criminal Code (Foroyaa Newspaper, 02/04/13)
According to the Government, “it is pertinent
that the amendment to the Criminal Code be made to reflect the
current socio-political realities”. This is an astounding rationale for
engaging in conduct that clearly violates the Constitution and Gambia’s treaty obligations as evinced under
pertinent sections of the ICCPR, and the ACHPR. In particular, in its General
Comment N0 34 of 2011, the United Nations Human Rights Committee (UNHRC)—the
body mandated to enforce the ICCPR—states emphatically that freedom of
expression and opinion through whatever means “are indispensable conditions for
the full development of the person...are essential for every society…[and]
necessary for the realization of the principles of transparency and
accountability.” In a subsequent case following the General Comment, Adonis v. Philippines in 2011, the UNHRC
ruled that actions arising from the exercise of freedom of expression cannot be
punishable by criminal law, nor is imprisonment legal for purposes of these
actions. And where injury is caused to individuals such as imprisonment, adequate
compensation must be paid by the state.
In light of the
Government’s explicit admission that the law under whose ostensible authority
many innocent Gambians were humiliated and punished was “grossly inadequate to the extent that sections 166(4) and section 167 ... exclude the President, Vice
President, Speaker ... from the
definition of ‘public officer’ and therefore outside the contemplation of the Criminal Code”,
we are asking for just such compensation, and reinstatement, where applicable.
We are thinking of those situated as Momodou Lamin Nget, Abbas Manneh, and
Gumbo Ali Touray, all citizens of The Gambia, and all victims of a clear abuse
of process and blatant miscarriage of justice.
As if by design,
hardly a
month lapses without some overwhelmed citizen or resident of The Gambia being
hauled before Magistrates’ Courts accused of committing the now notorious
offence of giving “false information to a public servant”. The
prosecutions are highly visible because they tend to exhibit political
undertones, and do not, on their face, sound persuasive enough to merit public
support. Stated differently, “false information to a public servant”
prosecutions are generally seen as malicious witch hunting by the State.
According
to Section 114:
A person who gives to any public servant
any information which he or she knows or
believes to be false, intending thereby to
cause, or knowing it to be likely that he or she
will thereby cause the public servant –
(a) To do or omit anything which the public servant
ought not to do or omit if the true state
of facts, respecting which the information
is given, were known to him or her, or
(b) To use the lawful
power of the public servant to the injury or annoyance of any
person,
commits a misdemeanour and is liable on conviction to a fine of five
hundred dalasis or to imprisonment for a term of six months or to both
the fine
and imprisonment
From a
Constitutional perspective, a Section 114 offence was never legitimately
triggered, and observers are right in querying why a public servant would deem
it necessary to act in matters that are essentially civil and are best resolved
under the civil defamation rubric of the law. In any case, if there is any
authority to act at all, it is incumbent on a public servant to adequately
ascertain facts before taking, or omitting to take, any action. Although
factual circumstances may differ considerably, all prosecutions under this law
represent a glaring abuse of public power.
Clearly, the law governing “false information” must
only be part of the body of defamation laws and nothing else. When one
makes allegations in a petition which are found wanting, the best course of
action is to dismiss the petition, and where necessary, demand an apology from
the petitioner. Or where the petition or aspects of it, make a claim,
expressed or implied, that is likely to damage the reputation of another
or demean him in the estimation of others, then surely, that is actionable
within defamation laws, and not the Criminal Code. As long as the “false
information” laws exist, petitioning would still bear risks that could squeeze
petitioners between Scylla and Charybdis. The right to petition or express
views through other means are fundamental part of a constitutional democracy
and must be tolerated, if not encouraged. As if the current laws on “false
information” are not bad enough, the gazetted amendments would further add
devastating fault lines to Gambia’s already punctured constitutional governance
system.
More
fundamentally, the time is right for a comprehensive challenge to Section 114 on
the ground it conflicts directly with express provisions of the Constitution.
For example, at 25(1)(f) of the Constitution, it is expressly provided that “Every
person shall have the right to … freedom to petition
the Executive for redress of grievances and to resort to the Courts
for the protection of his or her rights”. In a contest between 25 (1)
(f) of the Constitution, and Section 114, the former wins conclusively. This is
the clear command of the Constitution! In explicit terms, the Constitution
states that it is “the supreme law of The Gambia and any other law found
to be inconsistent with any provision of this Constitution shall, to the extent
of the inconsistency, be void” (see Section 4).
At Section 17
(1), Professor Jammeh’s government is under a positive obligation to protect
the Fundamental Rights and Freedoms of citizens and
residents of The Gambia. In its express words, “the fundamental human rights
and freedoms enshrined in this Chapter shall be respected and upheld by all
organs of the Executive and its agencies, the Legislature and, where applicable
to them, by all natural and legal persons in The Gambia, and shall be enforceable
by the Courts in accordance with the Constitution”.
Notwithstanding,
we note that 25 (4) attempts to claw back rights explicitly granted in 25 (1)
and (2). Crucially, it states that “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”. Any attempt to root the foregoing in
ordinary and inferior public order laws, and in ordinary and normal times, will
not work as there is no possibility of such legislation supplanting the
supremacy clause of the Constitution. The
“reasonableness” test needlessly included in the Constitutional text is a
judicial tool, not an Executive sledgehammer!
Suffice
to say that the fundamental freedoms are entrenched, and are therefore
derogable only in an emergency, and expressly via an Act of the National
Assembly (NA) (see Section 35 (1) of the Constitution). If such a power is
invoked by the NA, Section 35 (2) authorises a reasonable, if temporary,
suspension of Chapter IV rights:
Nothing contained in or done under the
authority of such an Act shall be
held to be inconsistent with or in contravention of
sections 19, 23, 24
(other than subsections (5) to (8)
thereof) or 25 of the Constitution to the extent
that it is reasonably justifiable in the
circumstances arising or existing during a
period of public emergency for the purpose
of dealing with the situation
As
prosecutions under Section 114 are now too common for comfort, the Courts must
reject unreasonable and unlawful Executive restrictions on 25(1) in so far as
the Constitution, even if in theory only, remains the supreme law of the land.
The supremacy statement is an express component of the Constitutional text, and
as such, inferior law in the mould of Section 114 should be incapable of
controlling it. In the face of Executive and Legislative denigration of the
law, we nevertheless remain hopeful that eventually, the courts will uphold the
authoritative, if severely compromised architecture of protected speech under
our Constitution.
We
are in no doubt Section 114 strikes at the heart of constitutional protection
of expression categorically permitting the freedom to petition
the Executive for redress of grievances (25 (1) (f). The
Constitution also guarantees the right of “every citizen of The Gambia of
full age and capacity … to take part in the conduct of public affairs directly
or through freely chosen representatives” (see 26 (a)). Clearly, the
right to petition lies at the heart of the ability to participate in public
life, and there is no question Section 114 is extreme, draconian, and serves no
purpose other than to unlawfully punish innocent Gambians. It is inconsistent
with pivotal Constitutional provisions, as well as The Gambia’s overriding
treaty obligations, and is therefore impermissible to decide such conflict
in favour of inferior legislation. In the regrettable event the Executive and
Legislative arms of Government failed to scrap Section 114, and its amending
bill, it would be incumbent on the courts to void it as repugnant of the
Constitution, and other superior treaty law.
A
judicial scrapping of the law could be avoided by Professor Jammeh’s acceptance
of the basic reality that there is no defensible point in amending Section 114.
Now that the Government accepted its defects, this piece of law must be
discarded, and all those unlawfully punished under it compensated, and,
reinstated, where applicable. It must never again be used against unsuspecting
Gambians who had the temerity to petition public servants, especially under the
Executive arm of government, for a redress of some legitimate public grievance.
In
The Gambia’s current political environment, no one is immune from the
capricious application of public power. Mambanyick
Njie,
former Permanent Secretary, Youth and Sports, is
before the courts on Section 114 allegations. Lamin Waa Juwara, former Minister
of Regional Administrations, Lands and Traditional Rulers, is before the courts
on so-called neglect of duty charges. Mamburay Njie, former Minister of Foreign
Affairs remains on bail on unspecified economic crimes. Numerous high level
officials travelled the same route, and many more are likely to do so. In
Government, none of them apparently cared about the plight of their country’s
persecuted. It is not too late for the Attorney General and Minister of Justice
(the AG) to convince Professor Jammeh that Section 114 must be scrapped, not
more lethally rejuvenated. In the event the AG saw no need to intervene on the
side of legality, the National Assembly must do so on its own motion. At least
one former member served time for an alleged Section 114 offence.
Should those in a position to scrap this law
think the likelihood of them falling foul of it is too remote, we remind you of
past victims and leave you with the counsel of Martin Niemoeller, a
pastor of the German Evangelical Lutheran Church in the Nazi era:
In Germany, the Nazis first came
for the communists, and I did not speak up, because
I was not a Communist. Then they
came for the Jews, and I did not speak up, because
I was not a Jew. Then they came
for the trade unionists, and I did not speak up, because
I was not a trade unionist. Then
they came for the Catholics, and I did not speak up, because
I was not a Catholic. Then they
came for me … and by that time, there was no one to
speak up for anyone.
We reiterate that Section 114 must be scrapped and its
victims compensated, and where applicable, reinstated with full benefits.
Lamin J Darbo, in consultation/close collaboration
with Dr Abou Jeng