Alagi Yorro Jallow

In many countries, including the Gambia, the criminal defamation and secrecy laws in force today are based on archaic European laws imported during the 19th and 20th centuries when virtually all countries in Africa were under colonial rule.

They were introduced by the British, French and other empire- building powers essentially to stifle and suppress indigenous opposition to colonialism and self- determination, self- government and independence. These laws made it a crime to criticize the colonial authorities and were used against those who spoke out about the injustices that the colonial system engendered, including nationalist leaders.

President Barrow’s government nationalistic rhetoric, fixation on ‘secrecy and ‘false news’ laws and insistence on labeling critical media ‘false news’ serves to reinforce the framework of accusations and legal charges that allow such a leader to preside over the jailing of journalists.

Nearly three-quarters of all detained & exiled journalists during Yahya’s regime were jailed after being accused of antigovernment activities, many of them under broad and vague ‘secrecy and false news’ laws.

A record number of reporters under the previous government, were arbitrarily detained and harassed on charges of “false news,” a term that has gained resonance as strongmen have embraced President Trump’s attacks on “fake news” to silence critics.”

The Gambia government should promptly implement its commitment to abolish criminal defamation by repealing all the draconian and archaic media laws ensuring that the truth is available as a complete defense to civil defamation, a legislation to ensure that government should promote the public’s right to know by making available the financial and other resources and training necessary to enable the effective operation and implementation of the Right to Access Information Act and Freedom Of Information Act as soon as possible.

Criminal defamation laws present an obstacle to the media and its ability to investigate and report on issues of public interest. It hinders freedom of expression, press freedom and investigative journalism.

Successive governments since independence have used the Public Order Act provisions, defamation, seditious libel, secrecy and false news to harass, intimidate and punish journalists and to stifle criticism & dissent.

Although successful prosecutions have been rare, journalists and others have faced arrest, short term detention, and interrogation, searches of their offices and threats of severe consequences if they continue to publish ‘offending’ stories.

Defamation and seditious libel laws have been used by the authorities to silence journalists and for self-censorship and official censorship. However, there was the promise of repeal in the country.

Earlier the Justice and Communications ministers expressed their personal commitment to repeal of the provisions of the draconian media laws on defamation & false news. There is on reform of the criminal defamation and secrecy laws that has been promised by President Barrow government.

Gambia government and intelligence whistleblowers – And potentially even journalists – may face years in jail for disclosing classified information, under the current false news law, the country’s secrecy laws since they were introduced.

Unexpectedly, the reforms could not yet take place to longstanding secrecy laws, which are modelled on Britain’s Official Secrets Act.

The regime raises fresh concerns for prospective whistleblowers, journalists, and mass leak publication online sites. A series of “aggravating” offences will also hamper large-scale leaks like those of former NIA whistleblower, Baboucarr Badjie. The arrest of Mr. Badjie, a legal adviser at the former National Intelligence Agency, was accused of breaking the country’s security secrets and code of conduct for intelligence officers.

Badjie, who leaked a copy of a letter he wrote to President Adama Barrow to the media and the Gambia Bar Association, accused the agency of having a workforce 60 percent of which is “functionally illiterate” and can neither read nor understand English. He claimed that a sizable percentage of the staff, many of them close to former strongman President Yahya Jammeh, were recruited into the agency by past and present directors, former army generals, and Jammeh’s cousin, Pa Bojang.

The agency has been accused of torture and killings under Jammeh, and Barrow had promised to reform the institution, a pledge the whistleblower said is not being respected.

The agency reacted with fury to Badjie’s allegations and subsequently arrested and held incommunicado.

Currently, a single offence under draconian media laws prohibits disclosures of almost any information by government officers. This has been roundly criticized by news organizations and human rights groups, and a further “official secrets” offence also potentially criminalizes any disclosure, although the threshold for this offence is high and it has been rarely invoked.

The ‘false news’ laws will apply to anyone, not just government officials. They could easily apply to journalists and organisations that “communicate” or “deal” with information, instead of just government officials. They will also close a longstanding gap around contractors working on behalf of government agencies, who will also be subject to the new offences.

Journalists will have a defense available to them if publication of information is in the public interest and is in the person’s capacity as a journalist engaged in fair & accurate reporting.

However, they bear an evidential burden for proving their conduct satisfies the defense.

No definition of journalist is provided in the law, & it is unlikely to capture organizations or individuals who play a less traditional role in news gathering, such as independent bloggers, or intermediaries who pass information along to journalists but are not the original source.

It places news organizations in the position of potentially having to justify their reporting in court if a prosecution is brought against them.

At first glance the false news and secrecy law does appear to limit the type of information that could lead to a prosecution of a journalist or a source. Several of the offences are focused on protecting “inherently harmful information”.

Further offences will also criminalize the communication or dealing with information that “causes harm to Gambia’s interests”, which won’t just include information about law enforcement operations but much broader types of information as well. This includes a broad suite of information about civil and criminal law enforcement that goes far beyond just law enforcement and intelligence agencies.

Whistleblowers who make disclosures to journalists or other individuals may be prosecuted. However, that scheme does not favor internal disclosures and places substantial barriers and risks for people who are considering making external disclosures.

This means that the existing broad regime that criminalizes disclosures of all criminal information will remain in place, and effectively be enhanced by the proposed offences.

The Gambia has faced criticism in the past for its hostility towards whistleblowers. The UN’s special rapporteur for freedom of expression David Kaye has previously warned that Gambia’s’ rights and freedoms are at risk of being “chipped away.”

These secrecy offences have previously been used to target the sources of Gambian journalists and whistleblowers.