Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The Supreme Court of The Gambia held that the provisions in the Criminal Code relating to sedition (excluding seditious acts against the government) and publication of false news or information were constitutional. A media organization had challenged the constitutionality of these provisions arguing they violated the constitutionally-protected right to freedom of speech and expression including freedom of the press. The Court recognized that criticism of the government as an institution should not constitute sedition, but held that all other definitions of “seditious intention” and the offence of false news in the Criminal Code were a necessary, reasonable and proportional limitation of the right to freedom of expression. The Court placed specific importance on the need to protect the unity of the country and the fact that the exercise of constitutional rights can never be at the expense of the achievement of other, competing rights.
On September 2, 2014, the Gambia Press Union (and its vice-president and an individual member) brought an application before the Supreme Court of The Gambia, arguing that the provisions of the Criminal Code relating to the offences of sedition and the publication of false news or information were unconstitutional. The Press Union believed that the rights of media practitioners to freedom of speech and of the press were violated by the existence of the law [para. 1]. The Press Union argued that sections 51 (definition of seditious intention), 52 (offence of committing an act with seditious intention), 52A (power to confiscate printing machine on which seditious material is published), 53 (statutory time limit for initiating prosecution), 54 (evidence required for a conviction), 59 (publishing or reproducing any statement or report likely to cause fear and alarm to the public or to disturb the peace) and 181A (false publication) of the Criminal Code were all unconstitutional.
Section 51 sets out a list of intentions which constitute seditious intention, including acting “to bring into hatred or contempt or to excite disaffection against the person of the President, of the Government of The Gambia as by law established”, “to excite the inhabitants of The Gambia to attempt to procure the alteration, otherwise than by lawful means, of any matter in The Gambia as by law established”, “to bring hatred or contempt or to excite disaffection against the administration of justice in The Gambia”, and to raise “discontent or dissatisfaction” or promote “feelings of ill-will and hostility”.
Section 52 makes it an offence if anyone “(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; (b) utters any seditious words; (c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or (d) imports any seditious publication, unless he or she has no reason to believe it is seditious”.
Section 59(1) states that “[a] person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false, commits a misdemeanor and is liable on conviction to imprisonment for a term of two years”. Section 59(2) provides a defence to the offence if the speaker did not know that the statement, rumor or report is false and took reasonable steps before publication to verify its accuracy.
Section 181A(1) states that “[a] person who willfully, negligently or recklessly, or having no reason to believe it is true, publishes or broadcasts any information of news which is false in any material particular commits an offence”. Subsection (2) explicitly stipulates that it is not a defence that the person did not know that the information or news was false unless “adequate measures were taken to verify the accuracy of the information”.
The rights to freedom of expression and of the media are protected in the Constitution. Section 25(1)(a) protects the right to “freedom of speech and expression, which shall include freedom of the press and other media”. In addition, section 207 states that “[t]he freedom and independence of the Press and other information media are hereby guaranteed”. However, the constitutional provisions do contain internal limitations. Section 25(4) permits the limitations of these rights if a law “imposes reasonable restrictions on the exercise of the rights and freedoms therefore 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”. Section 209 stipulates that section 207 is “subject to laws which are reasonably required in a democratic society in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of others”.
Justice Cherno Sulayman Jallow delivered the unanimous judgment for the five-judge bench of the Supreme Court. The central issue before the Court was whether the provisions on sedition and false news were a necessary and reasonable limitation of the rights to freedom of speech and expression and of the press and other media.
The Press Union argued that the impugned provisions did not meet the constitutional requirement of legality and proportionality and were therefore unconstitutional. With reference to the UN Human Rights Committee General Comment 34, the Press Union submitted that the State was required to justify the sedition provisions’ constitutionality by demonstrating that they are necessary and serve a legitimate aim, and that the State had not done so. In respect of the false news provisions, the Press Union argued that the provisions assume that the truth or falsity of a statement can easily be determined but that, in fact, “the determination of the falsity of a statement is not quite as straightforward, especially in the context of political and public comments that journalists undertake” [para. 9]. In addition, it submitted that the phrase “likely to cause fear and alarm” was vague. The Press Union maintained that as the Constitution requires the legislature to “respect and uphold the fundamental human rights enshrined in the Constitution” the passing of unconstitutional laws exceeded the powers of the legislature, and that the provisions were not drafted with sufficient clarity to constitute legitimate limitations of the rights. The Press Union stressed that because The Gambia is a signatory to the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Treaty of the Economic Community of West African States all domestic legislative provisions have to be interpreted “in a manner that is compatible with international law” [para. 7].
The Attorney General argued that the right to freedom of speech and expression is not absolute and is “subject to reasonable restrictions as may be prescribed by law, justifiable, and necessary in a democratic society” [para. 13]. He focused his defence on section 181A and submitted that the provision was a legitimate restriction of the right to freedom of expression because it was legitimately prescribed by law and that the term “false” was neither vague nor ambiguous and the falsity of a statement was capable of judicial determination. The Attorney General stressed that section 181A seeks only to criminalize the intentional making of false statements (and so does not extend to statements made which were false but which the maker made “in complete ignorance of the falsity of the statement”) and that this has the legitimate aim of protecting national security, public order, decency and morality [para. 16]. In addition, he submitted that as section 181A does not constitute a strict liability offence (and so the prosecution has to prove the wilful, negligent or reckless making of false statements) this is a reasonable restriction of the right to freedom of speech and expression as “if publication of false news remains unchecked, it can have catastrophic consequences on society, especially in the context of modern advances in technology and the rapid growth of social media” [para. 18]. The Attorney General noted that although a court may consider international law it is only of persuasive value and that courts’ interpretations of Gambian legislation “must be carried out having regard to the particular context of The Gambia” [para. 14].
The Court held that as legislation is presumed to be constitutional, the Press Union bore the onus of demonstrating that the impugned provisions were unconstitutional, and dismissed the Press Union’s reliance on the UN Human Rights Committee General Comment that the onus should shift to the Attorney General to demonstrate the provisions’ legitimate aims. The Court also held that “the exercise by an individual of his or her rights and freedoms is subject to non-interference with the rights and freedoms of others” and so legislation will not be declared unconstitutional simply because it infringes the rights of an individual [para. 26]. With reference to the Privy Council case of Kenneth Surrat v. AG Trinidad and Tobago  A C 655, the Court stressed that any laws limiting rights must have a legitimate aim and be proportionate [para. 26]. The Court added that “[t]he mere fact that the Constitution empowers Parliament to place limitations on the exercise of individual rights and freedoms means that Parliament has an obligation to guard against mischief in the exercise of those rights and freedoms” [para. 27]. In respect of the right under section 25 the mischief sought to be prevented includes threatening national security, public order, decency and morality, but the Court referred to the Privy Council case of AG of Gambia v. Momodou Jobe  UKPC 10 in noting that the mischief sought to be addressed by a law need not be stated in that law. The Court concluded that its role was simply to determine whether Parliament had “achieved the right balance” [para. 28]. It did stress that it was “fundamental” that the prevailing political, social and economic circumstances of the country be considered when determining legislation’s validity [para. 29].
In response to the Press Union’s argument that the impugned provisions did not constitute law, the Court held that “every Act of Parliament that is lawfully enacted by a duly constituted Parliament acting in accordance with the Constitution and the rules of Parliament qualifies as law” [para. 30]
The Court examined the impugned provisions in detail. In respect of the provisions criminalizing sedition the Court characterized section 51 and its definition of seditious intention as the most important because it is the “foundation” of sections 52, 52A, 53 and 54. It noted that sections 25(4) and 209 of the Constitution clearly demonstrate that “the rights and freedoms relative to free speech and of the press and other media are made subject to laws Parliament may make circumscribing those rights and freedoms to the extent ‘necessary in a democratic society’ or ‘reasonably required in a democratic society’” [para. 38]. The Court described its role as having to determine whether Parliament had struck the right balance between protecting the rights themselves and creating restrictions that were necessary and reasonable. The Court noted that the international treaties protecting the right to freedom of expression also permit limitations to the right and so “are no more different in substance than the rights and freedoms enshrined in the Constitution in relation to free speech and freedom of the press and other media” [para. 39]. In assessing the value of the foreign and international jurisprudence the Press Union referred the Court to, the Court made particular reference to the ECOWAS case of Federation of African Journalists v. The Gambia ECW/CCJ/APP/36/15  and commented that it was not relevant as that case concerned whether the laws were consistent with international law and not the Gambian Constitution.
The Court set out the criteria for the test to determine whether Parliament was reasonable in enacting the impugned provisions: “Parliament must be clear and unambiguous as to what right or freedom it is restricting, such restriction must be lawful, the legislative measure comparing the restriction must have a legitimate aim and the restriction must be proportionate to the mischief being prevented or guarded against” [para. 41].
The Court then examined the history of the offence of sedition and noted that it had its origins in British law. It acknowledged that critics of the offence have described it as “a colonial-era law designed to suppress the voice of free expression; one that did not recognise the freedom of expression as a right compared to the level at which the right is held in modern times” [para. 47]. It recognized that sedition had been abolished as an offence in the United Kingdom but stated that “despite the colonial setting in which sedition laws were born, the question of their constitutionality or otherwise must be considered within the context of the constitution of each jurisdiction” [para. 48].
In assessing the content of section 51, the Court noted that the provision provides for legitimate defenses to a charge of sedition, namely, the act or publication “(i) to show that the President has been misled in any of his or her matters, (ii) to point out errors or defects in the Government or constitution of The Gambia … or in legislation or in the administration of justice with a view to the remedying of the errors or defects, (iii) to persuade the inhabitants of The Gambia to attempt to procure by lawful means the alteration of any matter in The Gambia, or (iv) to point out, with the view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of The Gambia” [para. 50]. The Court described these defences as “a necessary balance between the exercise of the right to free speech and freedom of the press and other media and the restrictions to those rights”, and stated that it had to determine whether that balance was correct [para. 51].
The Court then examined the definition of seditious intention as set out in section 51, and in respect of the intention in subsection (a) “to bring into hatred or contempt or to excite disaffection against the person of the President, or the Government of The Gambia as by law established” the Court distinguished between the President and the government. It noted that the office of the President serves as the “fountain for national cohesion and stability” which justified the protection for the President as negative statements about the President could threaten national security, public order, decency or morality [para. 52]. However, the Court did not consider it reasonable to extend the protection to the government as an institution as the government, by its very nature, will be subjected to both positive and negative opinion from individuals and media. It held that the protection of the government from criticism was not a legitimate aim and is neither necessary nor reasonably required in a democratic society. Therefore, the Court held that “or the Government of The Gambia as by law established” should be severed from section 51(a) to make it constitutional.
In respect of section 51(b) which described a seditious intention as “to excite the inhabitants of The Gambia to attempt to procure the alteration, otherwise than by lawful means, of any matter in The Gambia as by law established”, the Court acknowledged that the subsection was general and “may give the appearance of vagueness” [para. 55]. However, it held that the provision was reasonable and necessary because it prohibited only the unlawful alteration of matters.
The third definition of seditious intention is “to bring hatred or contempt or to excite disaffection against the administration of justice in The Gambia” and the Court noted that administration of justice is “sacrosanct” and that this subsection serves the legitimate aim of protecting that administration of justice [para. 56]. Accordingly, the Court held that this definition was necessary and reasonably required in a democratic society.
The Court analyzed the last two definitions of seditious intention – those relating to raising “discontent or dissatisfaction” or promoting “feelings of ill-will and hostility” – together. The Court stressed that The Gambia “is a single community comprising different tribes (classes) that have lived and continue to live side by side in peace and harmony for centuries” and that Parliament and the drafters of the Constitution considered it appropriate to protect that unity [para. 57]. The Court referred to sections 211 and 212 of the Constitution which encourage state organs to “strive towards the realization of national unity, peace and stability”, and noted that it would be “unwise” for the Court to interfere with a measure adopted by Parliament to foster that unity [para. 59].
The Court concluded the analysis of section 51 stating that “nothing contained in the restrictions to free speech and of freedom of the press and other media [in section 51] is disproportionate to the protected rights and freedoms under the Constitution” [para. 60]. Accordingly, the Court held that section 51 and sections 52, 52A, 53 and 54 – which flowed from the definition of seditious intention in section 51 – were constitutional.
In analyzing the constitutionality of section 59 which criminalized the knowing publication of false news, the Court stressed that the requirements that the speaker had knowledge of the falsity and that the statement was “likely to cause fear and alarm” constituted inbuilt “checks” in the offence [para. 63]. The Court held that the provision was not vague or unlawful and was reasonable and necessary in a democratic society.
The Court examined section 181A and noted that it is “based on an objective test” to determine the falsity of a statement and that the provision is “clear and unambiguous” [para. 65]. The Court stressed that the burden the prosecutor bears is that of “beyond a reasonable doubt”, and that an accused will be acquitted if they demonstrate that they took “adequate measures” to verify the truth of the statement [para. 65]. The Court distinguished between factual information and opinion and commentary and noted that opinion statements would not fall under section 181A “irrespective of how one may disagree with the commentary” [para. 66]. Accordingly, the Court held that section 181A had a legitimate purpose and was reasonable, necessary and proportionate.
The Court recognized that the media has an obligation to hold Government to account as well as to uphold the values of the Constitution, but held that the existence of these offences would not interfere with those obligations.
In summary, the Court held that sections 52, 52A, 53, 54, 59 and 181A were constitutional in their entirety. The Court held that section 51(a) was constitutional to the extent that it criminalized negative statements about the President but that its criminalization of negative statements about the Government was unconstitutional and should be severed from the provision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision that the offences of sedition and false news are constitutional entrenches colonial-era laws and goes against international trends of decriminalizing these offences. The Court’s severance of criticism of the government from the offence does not provide sufficient protection to the media and individuals in The Gambia.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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