By Bubacarr Drammeh
The Gambia Times has reported that the Attorney General and Minister of Justice of The Gambia is planning, on December 3rd 2019, to formally present to the National Assembly the Criminal Offences Bill 2019. The proposed bill, if passed, would repeal the Criminal Code Cap 10:01 Volume III Laws of The Gambia 2009. The new bill is, as officials claimed, intended to restore confidence in our criminal justice system. The Barrow Administration has promised the population that its policies and the bills in parliament would be advancing the ideals of the commonly phrased words “New Gambia”. The policies of the administration have been criticized by many people because they see it essentially similar to those of its predecessor.
The proposed Criminal Offences Bill 2019 is substantially the same as the Criminal Code Cap 10:01 Volume III Laws of The Gambia 2009. The office of the Attorney General basically did two things. First, it proposes, pending legislative enactment and presidential assent, to change the tittle of the law from Criminal Code Cap 10:01 Volume III Laws of The Gambia 2009 to the Criminal Offences Act 2019. Second, it proposes to add new but also delete few sections, key words and phrases from the code.
As a result, the Criminal Code Cap 10:01 Volume III Laws of The Gambia 2009 has 370 Sections whiles the Criminal Offenses Bill 2019 comprises of 360 Sections. Thus, a total of ten sections of the code have been deleted. The bulk of the addition and deletion has to do with technical terms and terms of imprisonment. For example, homosexuality still remains a crime, but the term of imprisonment has been reduced from a five-year to two-year punishment. However, there are two notable sections that have been deleted. The first is Section 59 entitled Publication of False News with Intent to Cause fear and Alarm to the Public. Section 59(1) provides that:
any person who publishes or reproduced [sic] any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false, commits a misdemeanour and is liable on conviction to imprisonment for a term of two years.
Section 59(2) provides:
It shall be no defense to a charge under Subsection (1) of this section that he or she did not know have reason to believe that the statement, rumour or report was false unless he or she proves that, prior to publication, he or she took reasonable measures to verify the accuracy of the statement, rumour or report.
The aforesaid section was first enacted in The Gambia in 1939 and has been incorporated in our laws since independence. The previous administrations used this section to trample on freedom of speech and to persecute journalists. The obliteration of this section will be a huge step in the promotion of freedom of speech and protection of journalist from frivolous charges. Another section that has been deleted is Section126(3) which provides that:
Any person who, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibit any object, intending that the word or sound shall be heard, or that the gesture or object shall be seen, by the woman, or intrudes upon the privacy of the woman commits a misdemeanor, and is liable on conviction to imprisonment for a term of one year.
Advocates of women’s right are not happy with the government for removing this provision from the law. Many believed that the section is very progressive and efficient especially in protecting the rights of women in a patriarchal society like The Gambia.
The Criminal Offences Bill 2019 proposed to repeal Section 5 of the Public Order Act. Section 5 of the Public Order Act requires citizens to apply for a license any public procession. Failure to do so, if convicted, would be sentenced to three years imprisonment. This section has been used by every single government since independence but has been used more frequently by the Jammeh Administration. Some prominent Gambians who were a victim of this section include the late Solo Sandeng; the former Vice President and the current Secretary General of the United Democratic Party, Ousainou Darboe; the late Femi Peters, etc. The proposed bill requires citizens to give notice before engaging in any public procession. Failure to do so would attract a fine of ten thousand dalasis.
Finally, the most controversial part of the Criminal Offenses Bill is Section 107 entitled Insulting and Inciting Disaffection to Lawful Authority. The said section provides that:
Any person who insults, or does any act to bring into hatred or contempt or to excite disaffection against the person of the President, or the Government of The Gambia as by law established, commits an offence and is liable on conviction to a fine not less than fifty thousand dalasis or a term of imprisonment of not less than one year or to both the fine and imprisonment;
Any person who directs parental insults to the President, Vice President, Cabinet Ministers, Judicial officers, Members of the National Assembly or any public officer holding a public officer in the exercise of his or her official functions, shall be held liable on summary conviction to a fine of not less than ten thousand dalasis and not more than fifty thousand dalasis or a term of imprisonment of not less than one month and not more than six months or to both the fine and imprisonment.
This draconian provision is not only a restriction on freedom of speech and expression, it also seeks to advance unequal and differential treatment for the parents of public officials above those of ordinary citizens whose parents could be insulted by their compatriots — but also by even public officials — as ordinary citizens are not provided the protection of the Criminal Offences Bill to seek similar redress for offences committed by insults to their mothers.
National Assembly members must demand for the removal of Section 107 in the proposed bill. It is the duty of the National Assembly as an independent branch of government and with powers to check the executive to protect the citizens from the transgressions of the executive. The executive is not the law-making organ of the government. The section, for all intent and purpose, is designed to silence the voices of the masses. Harry S. Truman once said, “once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.” Undoubtedly, The Gambia is still in the woods. As this latest attempt shows, the executive can propose whatever bill it wants, but such proposed bills would never become laws if the National Assembly fails to enact them into law.