By Hon. Sarjo Barrow
The views expressed in this article are the author’s and do not necessarily represent the views of the U.S. Department of Justice or the United States.
In a democracy still healing from years of repression, few laws are as dangerous as one that criminalizes speech for being “false.” Section 152 of The Gambia’s Criminal Offences Act 2025, which makes false publication and broadcasting a criminal offence, does precisely that. It places journalists, activists, and ordinary citizens at risk of prosecution simply for getting facts wrong or challenging those in power.
This law is not merely misguided policy; it strikes at the very heart of our constitutional order. With the utmost respect for the Supreme Court of The Gambia and its pivotal role in safeguarding our democracy, I submit that the Court should revisit GPU v Attorney, announce a strict scrutiny standard for all laws restricting fundamental rights, and depart from the rational basis test, which gives the legislature so much deference.
Freedom of Expression Is a Foundation, Not a Footnote
The 1997 Constitution guarantees freedom of speech and expression as a fundamental right. That word matters. Fundamental rights are meant to be robustly protected, especially when they concern political debate, journalism, and public accountability. While the Constitution allows restrictions “reasonably required in a democratic society,” that clause cannot mean whatever Parliament says it means.
If courts treat fundamental rights as easily overridden, they stop being rights at all. When a law directly targets speech, especially speech about public affairs, the Supreme Court must apply strict scrutiny. This means the government must prove three things:
- that the law serves a compelling public interest,
- that it is narrowly tailored, and
- that it is the least restrictive means of achieving that interest.
Section 152 fails on all three counts, rendering it indefensible under a strict scrutiny constitutional framework.
The Danger of Letting the State Decide the Truth
Section 152 does not focus on specific harms such as fraud, defamation, or incitement to violence. Instead, it criminalizes falsity itself. That gives the state extraordinary power to decide what is true, what is mistaken, and what is punishable.
History teaches us why this is dangerous. In the United States, the Supreme Court has held that even false statements are often protected speech. In both Garrison v Louisiana and the In United States v. Alvarez, the Court emphasized that free speech protection under the First Amendment strong protects speech, even if false or offensive, unless the government can show a compelling reason to punish it.
In Garrison, the U.S. Supreme Court held that criticism of public officials cannot be criminally punished unless it is made with “actual malice,” meaning knowledge of falsity or reckless disregard for the truth. It rejects criminalization of speech simply because it is false or motivated by ill will, warning that such laws chill public debate.
Similarly, in Alvarez, the Court struck down the Stole Valor Act, which made it a crime to falsely claim military honors. Although repugnant, the Court held that false statements alone do not fall outside of First Amendment protection unless they cause specific harm or are tied to traditionally unprotected categories like fraud or defamation. The Court’s concern was that allowing the government to punish falsehoods broadly would chill public debate and turn the state into an official “truth ministry.” The cure for false speech, the Court said, is more speech. Not prison.
The United Kingdom and the European human rights system have reached similar conclusions. Criminal defamation and false news laws have been mainly abolished because criminal punishment discourages investigative journalism and public criticism. Democracies now rely on civil remedies and open debates, not handcuffs.
Unlike the USA or even the UK, Section 152 criminalizes mere falsity, not specific harm such as fraud, defamation, or incitement to violence, areas where targeted regulation is justified by concrete evidence of harm. Instead, the law casts an unacceptably wide net, attaching liability even for negligent errors or omissions. This overbreadth and vagueness make the law fundamentally incompatible with freedom of expression in a democratic society.
By criminalizing speech without requiring proof of deliberate falsehood or reckless disregard for the truth, Section 152 punishes good-faith mistakes, investigative journalism, and legitimate criticism of public officials. The inevitable result is a chilling effect that stifles public debate precisely when openness and accountability are most needed.
The law’s vague and elastic terms deny ordinary citizens fair notice of what speech is prohibited, opening the door to arbitrary or selective enforcement—often targeting critics of those in power. While the statute purports to offer a ‘reasonable investigation’ defense, this measure is insufficient; it inappropriately shifts the burden of proof to the speaker and permits convictions even when there is no malicious intent. Such disproportionate criminal sanctions chill more speech than necessary, undermining constitutional guarantees of free expression and the very foundation of democratic discourse.
The Chilling Effect in The Gambia Is Real
In The Gambia, this chilling effect is not theoretical. Journalists still work under pressure. Whistleblowers take personal risks. Citizens remember what it meant to speak freely under the previous regime. Not to mention the onslaught of charges or detention for protected speech, even post-dictatorship.
A law that threatens prison for “false publication” encourages self-censorship long before any court case is filed. Editors will spike stories. Citizens will stay silent. Corruption and abuse thrive in that silence. A law that deters lawful speech is unconstitutional by its very existence.
Less Restrictive Options Already Exist
If the government’s concern is reputational harm, civil defamation law exists. If the concern is fraud, criminal fraud laws exist. If the concern is incitement to violence or public disorder, those offences already exist. Section 152 is therefore unnecessary. Under strict scrutiny, unnecessary laws restricting fundamental rights cannot stand.
Why the Supreme Court Must Revisit This
In GPU v. Attorney General, the Supreme Court previously upheld the constitutionality of similar provisions. Yet constitutional interpretation must evolve, reflecting democratic progress, comparative constitutional insights, and regional human rights obligations.
The ECOWAS Court of Justice has already found that criminalizing false news violates freedom of expression—a clear signal that The Gambia risks isolating itself from vital democratic values should it persist. This is a pivotal moment demanding constitutional courage. The Supreme Court must rise to its duty as guardian of fundamental rights, demonstrating leadership that will resonate throughout the nation and beyond.
A Test of Democratic Maturity
Striking down Section 152 would not weaken the state. It would strengthen the Constitution. It would affirm that democracy is built on open debate, not enforced silence; on accountability, not fear.
If freedom of expression is to remain a living, breathing principle at the heart of The Gambia’s democracy, it must be protected with the utmost vigilance and the highest level of judicial scrutiny. Section 152 simply cannot survive such a test. The Supreme Court now faces a historic opportunity to reaffirm the nation’s commitment to open debate and accountable government. By striking down Section 152, the Court will not only uphold the Constitution but will also strengthen the democratic fabric of The Gambia for generations to come.
