By: Alieu Famara Sagnia
The Gambian rights activist in this latest piece laments that “not only have the ‘Barrow Papers’ lowered the bar, but also went further to take away critical rights”.
In his article, Madi also highlights the attempt in the “Barrow Papers” to put in the constitution matters that do not really belong there, and which are best addressed through other legislation. Also, you see a devious attempt to sneak provisions into the Cabinet draft constitution 2024 – and thereby make them “constitutional” just by being there in the country’s supreme law.
This would be the case should The Constitution of the Republic of The Gambia (Promulgation) Bill, 2024 be enacted and adopted in a referendum. However, under both the 1997 constitution and CRC draft constitution 2020 these new sections in the “Barrow Papers” would be deemed unconstitutional when challenged before the High Court in Banjul. Madi cites Section 38 on ‘Freedom of Expression’ which in the “Barrow Papers” includes “freedom to seek, receive or impart information and ideas…” The right does not extend to propaganda for war, incitement to violence or to break law and order, or advocacy for ethnic or religious hatred, hatred resulting in vilification of others or incitement to cause harm, or of hatred that is based on any ground of discrimination… “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”.
According to the rights activist, “such provisions should not be in a constitution, but rather in subsidiary law so that they are well defined and not left to the discretion of law enforcement and justice delivery institutions and officials. “The way this provision is expressed in the Barrow Papers is open to abuse in which a mere opinion or criticism by any citizen, or by critics, activists, political opponents could be perceived as advocating for hate or vilification of someone if the Government does not like it. “This provision has the potential to undermine citizens’ demand for transparency and accountability as it limits their ability to express grievances against public officials or calling for public mobilization to demonstrate”. Madi in this piece also mentions Section 39 on the ‘Freedom of the media’, in the “Barrow Papers” where it states that, “the right to own and operate media…shall be limited to only Gambians.”
“The right to freedom of expression is an internationally-recognized right which extends to all human beings”, declares Madi. We know that Article 19 of the Universal Declaration of Human Rights states clearly: “Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Thus we agree with Madi that “to deny a non-Gambian to operate a media house inside the Gambia is discriminatory and a violation of the fundamental right of both the non-Gambian and citizens alike.
“This is because such foreign-owned media offers Gambians the ‘freedom to seek, receive or impart information or ideas’ which is a right guaranteed in Section 38 of the same Barrow Papers, thus contradicting themselves.” Yes, the constitution prohibits discrimination. Moreover, “that section contradicts Section 38 about the ‘freedom to seek, receive or impart information or ideas’ – consistent with our Article 19 quote above! Also, it is important to remind the Barrow Administration that to forbid foreign investment in the country’s news media industry would be inconsistent with the very investment policies espoused by Gambian governments, past and present, over the past decades to date. Indeed, our governments have been promoting Gambia as an investment-friendly state which subscribes to the philosophy of market economics and the benefits of globalization. However, as regards “propaganda”, it is our considered view, that Gambian media houses must stop re-broadcasting or regurgitate propaganda – which they purvey daily – from the BBC, France 24, RFI, DW and other Western global media to residents in the country.
Their continuing indulgence in such a practice is contrary to all the efforts of member states of NAM, the non-aligned movement which over many years through UNESCO fought hard to prevent cultural imperialism in all its forms. In many developing country jurisdictions; in Nigeria, for example, this problem was addressed through the country’s Communication Policy and enactment of national legislation. Thus we hope that the planned Information, Media, and Broadcasting Bill (IMB), 2024 should it become law in the Gambia will definitively address the issue of re-transmission of foreign propaganda by the country’s media companies. Going further in his part 4 article, Madi asserts that as business entities, foreign-owned media houses also offer job opportunities to Gambians “which the ‘Barrow Papers’ now seek to deny as well.” Well, here the history of the erstwhile Daily Observer newspaper is instructive. During the first Republic, the Liberian newspaper publisher and journalist Kenneth Best was reportedly encouraged to come publish his paper in The Gambia by certain members of Jawara’s government.
When he arrived in the country and spoke to his Gambian interlocutors in the media, who were supposed to know the local environment, Best we learned was told outright that it won’t work; that Gambians were not ready for a daily newspaper; that the consumer market and readership for a daily newspaper did not exist in the country. Those who know the story will tell you that history proved them wrong. Indeed, the debut of the Daily Observer as the country’s first daily tabloid revolutionized the print and, in fact, the larger news media landscape in The Gambia. And, in fact, we heard that the person(s) in the Jawara government who reportedly brought the Daily Observer owner into the country regretted ever doing so. Because, they came to realize that the newspaper’s reporting helped bring about the 22 July 1994 military coup in The Gambia, which was widely believed. Of course, the leaders of the military junta were aware of this possibility, and quickly found a way to expel Best from the country; and, its civilian successor will subsequently take control of the popular daily, and use it in the way we all witnessed.
Madi in his article also cites Section 39(5), of the Barrow Papers as deleting the 2020 Draft Constitution “safeguard” which states that: “The State shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination”. According to Madi, “by deleting this provision, the ‘Barrow Papers’ are now saying a media house, a journalist and, indeed, anyone could be penalized for expressing a divergent and dissenting opinion that they don’t like…to penalize citizens for their views means to criminalize opinion, silence voices and thereby kill transparency and accountability and so encourage abuse of power, incompetence, inefficiency and corruption in the public sector.” Meanwhile, as we look forward to Madi’s next piece on the Constitution Series 5: On Lowering Democratic and Good Governance Standards, part 4 definitely gave us enough food for thought!
