As if to argue that His Excellency, Sheikh Professor Alhaji Dr Yahya Jammeh (the Professor) is entitled to some leeway in governmental lawlessness, they interpose the physical symbols of development – coastal roads, GRTS, Airport, the University - to excuse the persistent human rights violations long a fixture on the Gambian public landscape. Ordinary Gambians travel this road, and so do non-Gambians who frequent the online community to irritate the advocates of public accountability under the rule of law. In the latter cases, we are dealing more with indifference to suffering rooted in ignorance on the one hand, and fantasy on the other. As irritating as this category of ostensible supporter, they are thankfully in no position to do actual harm to the Professor’s political critics. 

The same cannot be said of the judicial arbiters of baseless political prosecutions fast becoming the key fare in the country’s Magistrates Courts. With the focus on controlling speech unflattering of the Professor and his government, no area in a politicised landscape of criminal litigation is more critical than the newly discovered, all-encompassing “offence” of sedition. Over the past two years, Gambian citizens, residents, and tourists were prosecuted and convicted for alleged sedition offences, even though, in light of the controlling law, none of the allegations were proved to the requisite criminal standard of beyond a reasonable doubt.

What is sedition, and what conduct is legitimately considered seditious, and therefore properly liable to criminal prosecution and sanctions?

 According to the Oxford Dictionary of Law, 6^th edn., Oxford University Press, 2006), sedition is:

The speaking or writing of words that are likely to incite ordinary people to public disorder or insurrection. Sedition is a common law offence (known as seditious libel if the words are written) if it is committed with the intention of (1) arousing hatred, contempt, or disaffection against the sovereign or her successors (but not the monarchy as such), the government of the UK, or either House of Parliament or the administration of justice; (2) encouraging any change of the law by unlawful means; or (3) raising discontent among Her Majesty’s subjects or promoting ill-will and hostility between different classes of subjects. There must be an intention to achieve these consequences by violence and disorder (emphasis added)

Although the foregoing is a UK-focused definition, the crux of any sedition offence in  jurisdictions faithful to democratic accountability and the rule of law must remain utterances advocating the forceful overthrow of government. And there must be immediate danger of this outcome occurring. Sedition law in New Zealand mirrors the UK standard, and so does the law and jurisprudence in Canada, where a requisite element of pertinent legislation centres on the employment of “force as a means of accomplishing a governmental change”.  

For a more incisive understanding of the jurisprudence of sedition as a dispute between government and its opponents, the preeminent common law jurisdiction offering the greatest enlightenment is the federal judiciary of the United States of America. In this jurisdiction, Government is up against the formidable barrier of the First Amendment to the effect that “Congress shall make no law … abridging the freedom of speech, or of the press…”. Notwithstanding a command couched in the imperative, there was never a serious suggestion that constitutional literalism is conclusive on a plausible interpretation of the free speech clause of the First Amendment.

Accepting that speech may be proscribed under appropriate circumstances, the Supreme Court (the Court) held in Schenck v United States that "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Elaborating on his understanding of the “clear and present danger” test, Justice Olive Wendell Holmes Jr (Justice Holmes), author of the Schenck decision, but a dissenter from the majority application of that opinion in Abrams v United States, argued for the legitimate proscription of speech only where it is productive of, “or is intended to produce a clear and imminent danger that will bring about … certain substantive evils that the United States … may seek to prevent". In other words, speech may only be excluded from protection where it “threatened immediate interference with the lawful and pressing purposes of the law".

In the Court’s voluminous First Amendment jurisprudence touching on sedition, the “clear and present danger” test went through different formulations since its initial articulation by Justice Holmes in 1919. With its decision in Brandenburg v Ohio, the Court appears to have embraced the immediacy test first enunciated in Abrams when it held that no state may "forbid or proscribe advocacy of the use of force … except where such advocacy is directed to producing imminent lawless action and is likely to incite or produce such action."

For our purposes, it suffices that the common law world’s most prestigious jurisdictions underscores the need for advocating a violent overthrow of government before speech may be proscribed on seditious grounds. With that legal principle as backdrop and central element of sedition-related offences, is it even remotely arguable that the leadership of the Gambia Press Union (GPU) were engaged in seditious activity when it issued a press release disputing the Professor’s version of Deyda Hydara’s murder? Was Halifa Sallah properly accused of sedition when he embarked on a fact finding mission to “challenge”, in the words of the amended charges against him, “the government policy of screening witches”? Were the Fultons, and Fatou Jaw Manneh, properly charged, prosecuted, convicted and sentenced of seditious allegations? In all of these instances, the answer must be an emphatic no.    

Under the common law, sedition is only provable where there is an intention to achieve a change of government through violence and disorder, and this strongly suggests that a mere allegation of seditious intent by the State is not dispositive of the substantive allegation of sedition. Even if the alleged expressions at issue in all the cases are conceded as having occurred, the question for a presiding Magistrate must be the character that takes speech out of the realm of legitimate public debate into the arena of agitation for an immediate, violent overthrow of the Professor’s government? On the foregoing definition, and jurisprudential discussion - and they must be seen as underscoring the proper doctrinal understanding of sedition even in The Gambia - the answer has to be negative. It is vital to note that the inferior nature of the Criminal Code makes it a clearly subordinate law to the 1997 Constitution of the Republic of The Gambia (the Constitution). Let us examine what the Constitution, with all its tragic flaws regarding the allocation of national power to the constituent branches of our Government, says about the type of speech at issue in all the sedition cases so far alleged, and, or, prosecuted, before magistrates in The Gambia.

Chapter IV of the Constitution deals with the “Protection of Fundamental Rights and Freedoms”, with Section 17 stating thus:

(1)    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.

(2)    Every person in The Gambia, whatever his or her race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter, but subject to respect for the rights and freedoms of others and for the public interest (emphasis added).

According to Section 25(1)(a) of the Constitution, “every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media”. I merely note that Section 25(4), quoted in italics below, attempts to claw back the rights explicitly granted in 25(1) and (2):

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.

Suffice to say that “the fundamental freedoms”, even if theoretically, 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) appears to authorise the “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

On the facts of all sedition allegations, and, or prosecutions that came before Magistrates in the Gambia, the highlighted portion of Section 17 (2) of the Constitution is not engaged. Neither are sections 25(4), and 35 (1) and (2), as quoted above. Even though the Fultons were engaged in harmless gossip not deserving of serious attention from the ultimate custodian of executive power, Fatou Jaw Manneh’s alleged newspaper interview, and views therein expressed, must be regarded as mere opinion, clearly in the public interest in furtherance of democratic conversation, and unquestionably protected by the Constitution. The interview was not widely disseminated as no mass media distributed its content to the wider Gambian population, but even if it were, no reasonable person could construe its purpose as agitating for immediate violence and disorder against the Professor’s government. Of more practical significance, it provoked no acts of public disorder, and exhibited no discernible “intention to achieve” any outcome through “violence and disorder”.

As to the staple allegation of causing “fear and alarm in public”, the prosecution evidence consistently falls below the requisite standard for sustaining that particular charge in all so-called sedition prosecutions. It is, for example, laughable that a tourist complaining about high transport fares, and allegedly sourcing that responsibility in the Professor, should be regarded as causing “fear and alarm in public”.  In this string of cases, all convictions, and sentences, were unsafe, unlawful even, as no law was violated in the absence of any situation, actual or potential, remotely approximating a public emergency in the country. These sedition prosecutions represented unreasonable and unlawful restrictions on 25(1) in so far as the Constitution, even if in theory only, remains the supreme law of the country.   

As for the allegation that Halifa’s fact finding mission challenging “the government policy of screening witches” constituted seditious activity, the simple retort is that he was merely responding to an issue placed in the streams of public life and discourse by the Professor. Ditto the GPU’s response to the version of events advanced by the Professor on the gratuitous murder of Deyda. Leaving aside the substantive issues underlying these very public disputes, what was said, and, or done on either occasion could not, in law, possibly amount to sedition, or seditious conspiracy. 

The magistrates who suffered the misfortune of presiding over the concluded sedition cases demonstrated serious deficiencies in their grasp of the broad doctrinal principles of public expression in a ‘democratic’ society, not to mention the intricate, if compromised architecture of protected speech under Gambian law. This conclusion is unavoidable when magistrates, in rendering convictions, openly advanced, as justification for their unlawful decisions, misconceived contentions that the Professor has brought a lot of development, and that those who hold contrary views are properly accused of sedition. I am willing to concede that the coastal roads, GRTS, the new Airport building, the University, and other infrastructural projects, represent external manifestations of development, but they may not be interposed as justifications for placing the Professor and his government beyond criticism, and as a basis for convicting defendants, unlawfully before them, on manufactured sedition allegations.

Clearly, freedom of speech and expression must be seen as entrenched Constitutional clauses, even if theoretically, and as such, may not be capable of control by inferior legislation in the Criminal Code. There is no question that the current utilisation of sedition law strikes at the heart of constitutional protection of expression, and it is impermissible to decide that conflict in favour of inferior legislation. This is not to argue that even in the high threshold realm of public life and affairs, speech and expression should always be completely unfettered in The Gambia. Under appropriate circumstances, it is not inconceivable for the claw back provisions to be legitimately invoked, but none of the seditious allegations, prospective prosecutions, and, or, convictions over the past two years are defensible in law.

As the jurisprudence on sedition emanating from the magistrates courts is completely unedifying, it is about time the insidious legislation at the heart of such consistent judicial chicanery is fully tested for constitutional compatibility at the High Court, and beyond, if necessary. I take the view that the higher judiciary must not remain largely untested on issues pertaining expression if only because we must have a proper perspective on the judicial philosophy of current judges vis-à-vis socio-political questions touching on human rights. As expression is likely to remain a contentious area of public life even in a post-Professor Gambia, the need to develop our jurisprudence in this area cannot be overemphasised.

With Halifa, and the GPU in the frame over the “government policy of screening witches”, and the rejoinder on Deyda respectively, a High Court date on sedition is looking ever more likely. Then again, the cases may never fully come to court as the decision to proceed resides in the exclusive domain of the prosecuting authority, and for such high profile defendants, we are talking the Professor himself. With intense behind-the-scenes diplomatic and other pressure likely to provide an escape route in these cases of dangerous overreach by the Professor, a court date is looking ever more unlikely, official bluff notwithstanding.  In the event the appellate system is ultimately engaged in these pending sedition matters, I encourage the Gambia Bar Association, and individual lawyers who feel able, to consider filing amicus briefs for the appellants after securing the requisite High Court permission.

For what it is worth, the Professor is advised that The Gambia under his stewardship is getting progressively heavier for its foundations, and the uncertainty attendant to this state of affairs should alarm any right thinking person.

 Lamin J Darbo