In light of the above, it is obvious that the provisions of the Gambian Criminal Code, criminalizing the dissemination of false news, fall short of international standards of freedom of expression. We therefore strongly encourage the Gambian government to follow the example of other African countries, such as Uganda,29 which have decriminalised false news laws.
ARTICLE 19 is also concerned by the following provisions in the Gambian Criminal Code:
ï‚-ï-Section 47 gives the Minister and the President an incredibly broad discretionary power to prohibit importation of publications which they deem contrary to the 'public interest.'
ARTICLE 19 believes it is wholly inappropriate for a government minister, let alone the
President, to have the power to prohibit publications in this manner, particularly on such vague grounds. Instead, if it is thought necessary, Parliament should carefully define the exact circumstances in which the publication of any material may be restricted. Moreover, any proposed limitations should conform strictly to those already identified by international standards on freedom of expression.
ï‚-ï-Under Section 48, importing a publication in breach of a prohibition order issued under Section 47 is punishable by up to two years imprisonment. Under international law, however, any restriction on freedom of expression must meet the three-part test. In particular, it must be proportionate to the aim pursued. A prison sentence for a speech related offence is highly unlikely to meet this requirement. For example, the European Court of Human Rights has said that imprisonment for press offences may be compatible with journalists' freedom of expression only in the most exceptional circumstances, notably where other fundamental rights have been seriously impaired, as in case of hate speech or incitement to violence.31 In the absence of any reference to such exceptional circumstances, ARTICLE 19 believes that Section 48 is in breach of international standards on freedom of expression.
ï‚-ï-Section 60 makes it a separate offence to defame 'foreign princes,' including ambassadors and other foreign 'dignitaries.' However, there is no reason in principle why such public figures should benefit from special protection against defamation. Under international law, all public officials are required to tolerate a higher degree of criticism than other individuals. By virtue of their public position, they must be subject to closer public scrutiny. The more senior the position, the more tolerance a public servant ought to display. This also applies to foreign officials. Moreover, as already noted above, the criminal law is wholly inadequate to deal with what is essentially a matter between private individuals.
In light of the above, ARTICLE 19 strongly recommends a comprehensive review of all speech related provisions in the Gambian Criminal Code with a view to bringing them more closely in line with international standards on freedom of expression.
ï‚-ï-Repeal section 52 of the Gambian Criminal Code;
ï‚-ï-Repeal criminal defamation provisions and replace them with appropriate private law remedies. Pending their abolition, the law enforcement authorities and judiciary should cease from applying criminal defamation provisions in practice and refrain from imposing disproportionate civil sanctions in cases concerning the exercise of freedom of expression;
ï‚-ï-Repeal section 181A of the Criminal Code;
ï‚-ï-Review all speech-related provisions.
The Information and Communications Act 2009
The Information and Communications Act 2009 ('ICA') was adopted with a view to addressing the convergence of the telecommunications, broadcasting and other new information technology sectors, including the Internet. The ICA spans 252 provisions and is divided into five chapters:
preliminary matters (Chapter 1), the regulation of information and communication systems and services (Chapter 2), information society issues (Chapter 3), regulatory provisions for broadcasting content (Chapter 4) and miscellaneous matters (Chapter 5). In addition to telecommunications and broadcasting regulation, the Act also effectively deals with cybercrime and the processing of personal data.
This analysis does not purport to cover the ICA in detail. Rather, we highlight our key concerns with the Act. Should the Act come under review, which we recommend, we stand ready to provide a more detailed analysis of its provisions.
i) Lack of independent oversight in the licensing procedure
The ICA places the regulation of the telecommunications and broadcasting sectors under the authority of the Public Utilities Regulation Authority ('PURA'). PURA was established in 2004 under the Public Utilities Regulation Authority Act 2001. In addition to the broadcasting telecommunications sectors, PURA also regulates transportation, water and electricity services.
ARTICLE 19 notes at the outset that entrusting the same entity with the regulation of sectors as widely different as water and electricity services and the telecommunications sector is confusing and undesirable. We therefore recommend the creation of a separate public authority with powers to regulate the telecommunications and broadcasting sectors.
Our main concern with the ICA, however, is that the ultimate authority in respect of
telecommunications and broadcasting licensing is the Minister, i.e., the executive. This is clear from a number of provisions scattered throughout the Act, in particular sections 7(2), 22, 23, 27, 215, 226, 230 and 232 to 236. Section 230(1), for example, provides that 'the Minister, on the advice of the Authority, shall issue broadcasting licences in sufficient numbers to meet the public demand for broadcasting services.'
Similarly, sections 232 to 236 provide that upon recommendation by the Authority, the Minister 'may' renew, revoke or suspend a broadcasting licence. PURA therefore merely has an advisory role whilst the ultimate decision-making power rests with the Minister. This, however, is in flat contradiction with international standards on freedom of expression, which require that all public bodies exercising powers in the areas of broadcast and/or telecommunications regulation be institutionally independent so as to protect them from undue political or commercial interference.
ï‚-ï-Any decision of such public authority should clearly be made subject to judicial review in the courts;
ï‚-ï-A public authority separate from PURA should regulate the telecommunications and
ï‚-ï-Such public authority should be given ultimate responsibility for telecommunications and broadcasting licensing instead of the Minister;
ï‚-ï-The institutional independence and autonomy of such a body should be guaranteed and protected by law.
ii) Overly broad intercept provision
ARTICLE 19 is concerned with Section 138 of the ICA, which gives sweeping powers to the national security agencies and investigating authorities to monitor, intercept and store communications in unspecified circumstances. Section 138 further provides that the Minister may require information and communication service providers to 'implement the capability to allow authorised interception of communications.'
Whilst Section 138 essentially raises issues of privacy of communications, and the protection of private life more generally, it has important implications for freedom of expression as well. Indeed, even in places such as The Gambia where Internet penetration is more limited than in more developed countries, the ability of individuals freely to communicate on the Internet, using emails, social media networks or other web platforms has become an essential aspect of freedom of
expression. In this context, unchecked Internet surveillance or 'monitoring' is perhaps one of the greatest dangers to freedom of expression online. Therefore, any restriction on such freedom must meet the strict three-part test laid down under international law, i.e., it must be clearly defined by law, pursue a legitimate aim and be proportionate to the aim pursued. In particular, the power to intercept private communications should be limited only to the investigation of serious criminal
Even having regard to the need to investigate serious crime, however, there is an obvious danger that such powers may be abused if not constrained by law. In this regard, ARTICLE 19 believes that Section 138 entirely fails to meet the requirements of international law outlined above.
ï‚-ï-First, in breach of the requirement of legal certainty, it is impossible to predict under Section 138 in which circumstances the authorities may intercept or monitor
communications. The only exception to this is perhaps sub-section 2, which bizarrely
provides that a user or subscriber fearing for his life or physical integrity may authorize such interception, rather than a judicial authority.
ï‚-ï-Secondly, Section 138 fails to provide that any monitoring or interception should only be authorised by a judge and should comply with the requirement of necessity or proportionality. Against this background, the fact that information and communication service providers may be required by the Minister to 'implement the capability to allow authorised interception' is less than ideal.
In ARTICLE 19's view, the legal framework for Information and Communication Technologies ('ICTs') should not allow State authorities to assume sweeping powers over ICT operators and providers - in particular their equipment or content going through their networks - in undefined circumstances, including in an emergency. Accordingly, section 138 should be reviewed and amended to bring it more closely in line with international standards for the protection of human rights.
ï‚-ï-Section 138 should be reviewed and amended. In particular, it should be made clear that interception can only be authorised by a judge for the purposes of investigating serious crime and subject to the requirement of proportionality.
Other areas of concern to ARTICLE 19 include:
ï‚-ï-Under section 8(e) of the ICA, the Frequency Plan (National Plan for Frequency
Assignment and the National Register of Frequencies) is devised by the Authority in
conjunction with members of the Armed forces and security services contrary to
international law which requires open and participatory processes;
ï‚-ï-The offence of publishing obscene information in electronic form (Section 170) is overly broad, allowing the criminalisation of legitimate speech by reference to such vague terms as 'lascivious' material that tends to 'deprave' or 'corrupt' persons exposed to such material;
A number of provisions give powers to the Minister to suspend a licence to provide
information and communication services or revoke a broadcasting licence 'if it is in the public interest to do so,' e.g., sections 27(3)(e) and 235(1)(e) respectively: given the lack of independence of the Minister, there is an obvious danger that such powers may be used to unduly restrict freedom of expression, in particular content or opinions unfavoured by the incumbent government.
ï‚-ï-The Frequency Plan should be designed following a participatory process;
ï‚-ï-Section 170 should be reviewed to bring it more closely in line with international
standards of freedom of expression. In particular references to 'lascivious' materials that 'deprave' and 'corrupt' should be dropped;
ï‚-ï-The power to suspend, revoke or amend the terms and conditions of a licence should lay with an independent authority specifically responsible for the regulation of the telecommunications and broadcasting sectors;
ï‚-ï-The circumstances in which a licence may be revoked, suspended or amended should be clearly and specifically defined in primary legislation.