Sunday, February 12, 2012

Victory against the ‘Four Fold Damocles'

Perhaps because it involves a former speaker of parliament or maybe it involves a government-aligned newspaper. Or maybe because the claimant is an opposition sympathiser. Whatever is certain, the outcome of Mariama Denton Vs. FJC and Daily Observer is a victory for freedom of expression in a country where journalists have no confidence in the courts in the face of restrictive media laws, which late Edward Francis Small, father of Gambian journalism and trade unionism told British colonialists are ‘four fold Damocles intended to kill the media. Kissy-kissy Mansa writes




“If I have to hang somebody, I will hang him and go to sleep using the laws.”
These were the words of Gambian president Yahya Jammeh in a state broadcast in 2006.
Jammeh, who was making reference to the murder of a prominent Gambian journalist, Deyda Hyadara added:
“I don’t believe in killing people. I believe in locking you up for the rest of your life.”
If, as said to be true to his character that, he lives by his words is anything to go by, then President Jammeh did not fail this time round.
 From 2006 to date, about 11 Gambian journalists came under criminal prosecutions for their newspaper articles. 9 of them were nailed-down, convicted and sentenced.
In the case of the remaining two that escaped conviction, it is not because they were not found guilty. Rather, as in the case of the co-publisher of The Point newspaper, Mr Pap Saine, the case was withdrawn whilst Abubacarr Saidykhan, a reporter with Foroyaa newspaper was wrongly charged.
Of course, some 15 years ago (1997) when the constitution of the Second Republic came into being, entrenching the civil liberties including Freedom of Expression and clearly defining the role of mass media, reporters and editors predictably celebrated, and pointed regally to Section 25 (1), assured of being provided with an iron clad protection.
Section 25 (1) reads that every person shall have the right to freedom of speech which shall include freedom of the press and other media.
The Gambia media is more especially called upon to maintain the principles of free discussion. Hence Section 207 reads: “the Press and other Media shall at all times be free to uphold the principles, provisions and objectives of the responsibility and accountability of government to the people of The Gambia.”
Thus looking at these expectations, one can observe that the clear-worded constitution embraces democratic principles by recognizing the important role that the PRESS, acknowledged as the FOURTH ESTATE, plays in building awareness and ensuring accountability of public trustees.
However, these constitutional guarantees have been negated by other statutes that take away the very freedoms given by the supreme law of the land.
These essentially include the Criminal Code (Amendment) Act 2005 - in it the sedition and criminal defamation, the Public Order Act, Official Secret Act and False News publication.
With the co-existence of these inconsistent binding legal forces, which rendered a mockery to freedom of expression in The Gambia, the constitutional provisions that guarantee freedom of expression are not as protective as the media had thought.
Consequently, the courts have repeatedly held that section 25 is not absolute. Thus they are constantly called upon to decide whether actions taken by the PRESS are legally permissible.
But throughout the cases involving, for instance sedition, emphasis was laid on test of criminality and not who is the judge of criminality of the utterances.
This leads to a direction of the law of sedition that makes the test-blame of the government and its officials because it brings into disrepute and tendency to ‘overthrow’ the government.
This is confirmed in the case of ‘The Six Journalists’ when Justice Emmanuel Fagbenle of High Court in Banjul describes seditious publications to mean ‘a crime against society; that it disturbs tranquility and steer up opposition against the Government and bring Government into hatred and disaffection.’
Justice Fagbenle even weighted-down Mr. Sam Sarr and Pap Saine’s view of publishing divergent views of an international standard and in accordance with good governance to favor the decision held in State Vs Lamin Waa Juwara that freedom of expression is not absolute; that it could be restricted for ‘national interest, public safety and national security’.
But common law depends a lot on precedence, and judges and magistrates’ have been relying on earlier bondable decisions. Gambian journalists will now have a decision to rely on. A High Court decision for that.
On Thursday January 12, Justice Mama Singhateh of High Court in Banjul cleared of former speaker of National Assembly cum ruling APRC bigwig, Fatoumatta Jahumpa Ceesay and Daily Observer newspaper of defamation charges levied by Mariama Denton, a lawyer and an opposition sympathiser.
The civil suit came when the former Speaker, in reaction to a comment about the claimant in May 2001 published on Daily Observer newspaper said: “Those UDP women who he [Juwara] praised were the opportunists he was referring to that they are following the UDP because their brothers, uncles and husbands were corrupt and were implicated by the Alghali Commission and other commissions…”
These words, the plaintiff averred were meant to  damage her credit reputation. They did damage her reputation, she told the court.
But here, the nitty-gritty of the saga is not that relevant. What we are concerned here is what Justice Singhateh said as she struck out the case:
“If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault.”

Maybe because it involves a former Speaker who still has the power to gather all evidences against the allegations. Perhaps because it involves a government aligned newspaper who can equally put up a robust defence. Or maybe it involves an opposition sympathiser, who will find it hard, if not impossible, as it infact turned out, to provide an alibi.
Whatever is certain, the outcome of Mariama Denton Vs FJC and Daily Observer is a victory for freedom of expression in The Gambia.
There is freedom of speech, but the reality is what Galsworthy has to say of press freedom in communist Russia after the second revolution:
“The other day in Russia, an Englishman came to the street meeting shortly after the first revolution had begun. An extremist was addressing the gathering and telling them they were fools to go to war and so forth. The crowed grew angry and soldiers were making a rush at him. But the chair, a big burly peasant stopped them with the words: brothers, you know that our country is now a country of freedom of speech. We must listen to this man, we must let him say anything we will. But brothers when he finished, we will bash his head-in.”
This means the government did not censure speech or word, but punishes as it deems fit after publication. But it may not be all that easy now…

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