Concerns Over the Draft Criminal Offences Bill 2019

By Madi Jobarteh:

On Tuesday December 2nd the Minister of Justice will lay before the National Assembly a bill to amend the current Criminal Code. I wish to call on National Assembly Members not to approve this bill because it contains provisions that limit citizens political rights and places the President and the entire Government above public scrutiny. They are using ‘insult’ as a strategy to achieve that diabolical objective.

Look at the provisions below where the government is proposing criminalising ‘insult’ against the president and public officers and their parents under Section 107,

1. Any person who insults, or does any act 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, commits an offence and is liable on conviction to a fine not less than fifty thousand dalasi or a term of imprisonment of not less than one year or to both the fine and imprisonment;

2. Any person who directs parental insults to the President, Vice President, Cabinet Ministers, Judicial officers, Members of the National Assembly or any public officer holding a public office or in the exercise of his or her official functions, shall be held liable on summary conviction to a fine of not less than ten thousand dalasi and not more than fifty thousand dalasi or a term of imprisonment of not less than one month and not more than six months or to both the fine and imprisonment.

This is not the kind of provision one wold have in a democracy! The Criminal Code is a very important law as it deals with how citizens act and relate with each other on a daily basis. The Criminal Code is the law that determines that everything we do is either lawful or unlawful. Unlawful acts are called offences or crimes for which one is arrested, tried and jailed if you are found to commit them.

Therefore, what is in the Criminal Code must be of utmost interest to citizens. States especially authoritarian leaders and governments have always used criminal laws to criminalise lot of actions just to ensure that they deny or limit or stop citizens from actively taking part in national affairs or holding public servants and public institutions accountable or combating corruption or ensuring transparency and efficient delivery of public services.

During the colonial times the British made it an offence in the Criminal Code for any citizen to protest or criticize the Queen or the Governor or the colonial government, they called it sedition or insult. They did that simply because they do not wish to have Gambians challenge the colonial government or defend their rights or seek independence.

Unfortunately, this Obnoxious Criminal Code was maintained by the Jawara Government. In 1988 his Government arrested and tried a journalist Sanna Tiks Manneh for reporting in his newspaper ‘The Torch’ that some ministers were corrupt. Even though the courts eventually freed the journalists, but we could see how the Criminal Code was used with the intention to silence the man and his newspaper just to protection corruption.

Under the Jammeh Regime not only did he maintain sedition but there were other provisions such as ‘giving false information to a public officer’ which was used to silence and intimidate citizens who wished to expose corruption, maladministration, inefficiency and misconduct in public institutions and society as a whole. Many times, citizens who wrote to the Office of the President to express their grievances ended up being arrested and charged for giving false information to a public officer. With this particular provision it means citizens were afraid to therefore write petitions to the Executive hence this provision was used to close accountability and transparency thereby allowing abuse and corruption to perpetuate.

Today we are under the leadership of Adama Barrow. We brought in this new leadership because we all agreed that the Jammeh Regime was a dictatorship that seized our rights such as freedom of expression, freedom of assembly and association and the right to petition the Executive. The regime criminalized these rights in the Criminal Code.

Therefore, it is indeed concerning that this new government would also continue to use the same Criminal Code as left to us by the colonialists and Jawara and Jammeh. What is even more concerning is the fact that this new Government has gone further to put in new provisions that directly infringe on citizens’ sovereign rights.

Let us be clear: no culture and no decent human being will entertain, condone or practice insults in any form anytime. Insults of any kind are indecent, uncivilised and toxic. But this is not a reason to therefore create this kind of a provision. Insults in the context of democracy and politics are addressed by political means and not through law and prosecution. If we wish to use the law to prevent insult in politics then we will end up threating our rights and creating more ‘criminals’ and therefore undermine national security.

What we need to consider is that these ‘insults’ are unpleasant expressions that come in the course of political discourse and disagreements between citizens on pertinent national issues. While no one should be encouraged to insult anyone on account of national issues however how do we determine what is ‘insult’. Not every unpleasant word or expression is an insult. But when there is a law that criminalizes insult but did not define and identify those insults beforehand it means therefore what constitutes insults will be left to the discretion of the police and courts.

When we leave such issues at the discretion of the police and courts, aka the State it means therefore such public officers could clampdown on any citizen to accuse her of insulting just to silence her. We saw how citizens were arrested under Jammeh and even today for insulting the president. We recall some years ago when a Foroyaa worker, Mass was tried for telling an APRC supporter to paste the picture of Yaya Jammeh on the sky. Similarly, one Fatou Badji was also arrested and tried briefly in 2018 for saying Barrow was not a good Muslim. How on earth could these two expressions constitute insult if not to merely harass citizens?

Insult laws anywhere are used to silence citizens, to stop citizens from scrutinizing their leaders and government and thereby to prevent citizens from exposing and combating corruption as well as from defending their rights. Above all insult laws are used to prevent citizens from actively participating in the affairs of their society hence create the ground for dictatorship to emerge.

All Gambians must stand against this Criminal Code Bill that is going before the National Assembly. Engage your National Assembly Member not to vote for this bill so long as it contains this provision among many other obnoxious provisions. We want democracy and good governance in which Gambians have the right and the space to freely exercise our sovereign citizens.

No to this Criminal Offences Bill. For the Gambia Our Homeland