Gambia: A mixed result as the Supreme Court delivers judgment in important constitutional challenges to free speech laws
On 9 May 2018, the Gambian Supreme Court declared that the criminal defamation law and the law on false news on the internet are unconstitutional. The law on sedition was also challenged and was found unconstitutional only to the extent that a publication relates to government and other public officials. The law on sedition in relation to the president remains.
One of the Supreme Court’s decisions arose form a challenge brought in 2014 by the Gambian Press Union, supported by MLDI, which argued that the Gambian sedition and false news laws are unconstitutional.
As a result of these decisions, the legal environment in which journalists and bloggers in the Gambia operate has improved, however the Supreme Court missed an opportunity to bring its media laws into line with accepted international standards on free speech law. This is all the more surprising in light of the recent Court of Justice of the Economic Community of West African States (ECOWAS) decision directing the Gambia to “immediately repeal or amend” its laws on libel, sedition and false news in line with its obligations under international law. The ECOWAS Court made that finding on the basis that those laws disproportionately interfered with the rights of Gambian journalists. That court had also found that the rights of four Gambian journalists had been violated by the actions of the Gambian authorities on the basis of these laws. The Gambian criminal laws on libel, sedition and false news formed the “root” cause of their claims.
The ECOWAS Court quoted extensively from jurisprudence of the African Court on Human and Peoples’ Rights, the Inter-American Court of Human Rights, and the United Nations Human Rights Committee, in reaching the conclusion that these laws were “obvious” and “gross” violations of the right to freedom of expression. The Court indicated that it was particularly important that laws applicable to speech be “narrowly drawn” because of the “chilling effect” that can be caused by vagueness or imprecision. Nonetheless, the Gambian Supreme Court failed to strike some of these laws down in their entirety.
“While it is positive that reform is underway in the Gambia, it is disappointing that despite strong condemnation by the ECOWAS Court the Gambian Supreme Court has upheld some of the media laws that have in the past been used to reinforce a climate of fear in the country” said Alinda Vermeer, MLDI’s Senior Legal Officer. “We hope that the Gambia will recognise the crucial role that the media play in society by fully implementing the ECOWAS judgment without delay.”
Emil Touray, President of the Gambia Press Union said “We received the Supreme Court judgments on our cases with mixed feelings. We are happy that the laws on criminal defamation and false publication on the internet are declared unconstitutional. We are however sad that sedition and false publication and broadcasting are declared constitutional. We are convinced that the battle for freedom of expression is a continuous one and we will therefore never relent in our efforts to make Gambia a model for media freedom”.
MLDI is grateful to Gambia-based lawyers Hawa Sabally and Sagar Jahateh, who represented the Gambia Press Union, and London-based barristers Can Yeginsu and Anthony Jones for their invaluable support in the context of this challenge.