Building The New Gambia
GRA and The Daily Observer: Is There No Better Way?
By the provisions of the Income and VAT Act 2012, GRA is probably the most powerful law enforcement agency and that is why it could close down a company with immediate effect for non-payment of taxes. Hence the action GRA took against the Daily Observer is not outside of the law but within their powers. However I think the timing and circumstances of this action are cause for concern, simply because the target is a media house. I think both GRA and Daily Observer could have employed smarter leadership and innovation to better address the issue. Now that GRA has closed the company which can last for only 14 days, what happens next if at the end of that period the Daily Observer fails to pay up and in full?
The fact is that the Daily Observer was deliberately faulting in its tax obligations simply because Yaya Jammeh was behind the company. That is the only explanation for the Daily Observer to operate for so long and accumulate so much tax arrears without any direct action from GRA. But it is also the same Yaya Jammeh Factor that also explains the reason that GRA was not able to act on its full powers all these years. I am sure if we look into KGI or Kanilai Farms and the many businesses of Yaya Jammeh, one would find that they are also not fully compliant with their tax obligations. During the Yaya Jammeh Tyranny, it is clear that GRA would dare not close down the Daily Observer otherwise heads will roll at Revenue House like a football!
Hence when we reach this stage we must recognize that both the Daily Observer and GRA had responsibilities by law but both of them failed to fulfill their obligations fully at the right time because of the Dictatorship. The Dictatorship protected the Daily Observer while it disempowered GRA. The fact that the Daily Observer accumulated 17 million dalasi in tax arrears attests to that. Why didn’t GRA hit them when their liabilities were 2 or 5 or 7 or 10 million dalasi? Why wait until its D17 Million?
To better illustrate this; under Section 215 of the Income and VAT Act GRA has a number of measures to use in order to make a taxpayer comply. These include sending reminders to the company or closing down the company or even denying the taxpayer to leave the country and finally to go to court. The question is that has GRA been actively applying all of these measures across the board during the APRC Dictatorship. No, it was not because the inhibiting factor was the Dictatorship. It was that factor that allowed Daily Observer to accumulate D17 million in tax arrears over a period of more than 10 years during which GRA did its best under the circumstances to make them comply. But it could not apply the full force of the law.
Now that the tables have turned and GRA has the enabling environment to assume and exercise its full powers by law, I think they need to do this strategically. If they use heavy-handedness then they could cause more damage than solutions. This is because if they should close down defaulting companies then that directly also affects the economy negatively. And if they should continue to the court with these companies it also means GRA will incur costs on itself. Thus I think what we face here is a circumstantial issue and not a legal issue. The APRC Dictatorship caused an imbalance in which the country suffered in all ways, and if we want to correct it now by just being heavy-handed because the circumstances are in our favour then we will cause the same damage as well.
In light of that, I do not think GRA should therefore close down the company even it will last for only 14 days as per the law. My view is that GRA should engage the company to agree on a payment plan and other measures just to ensure compliance. We must bear in mind that there are many such companies in default and GRA cannot afford to close them all and then end up in court. Hence GRA must develop a smart strategy in which it walks with these companies to ensure that they all fulfill their tax obligations eventually. This will be a win-win situation for all or at least for GRA with minimal or no cost to our economy.
Closing down a media company for non-payment of tax is not a popular action around the world. There are many governments that have used taxation as a means to close down media houses, not because of their failure to pay tax but because they do not like those media houses. Hence there are many regional and international declarations that call on governments not to use taxation as a means to close down media houses. Thus this action by GRA could bring undeserved and negative focus on the Barrow Administration even if the intention was not to clampdown on the media. The use of tax and business registration laws to close down companies perceived as government opponents is a common practice around Africa and in such countries like Russia or Turkey and many others. Hence when it happens anywhere, it raises eyebrows regardless of the reasons behind it.
Remember that in 2011 Yaya Jammeh set up a bogus Tax Commission to witch-hunt some lawyers, accountants, insurance companies and other businesses. Many lawyers and accountants challenged the findings of the commission but it was clear that the regime was merely using taxation to settle political objectives. I am not saying the current Government is using the same tactics. But we must recognize that closing down a media house for whatever reason has a direct link to freedom of the press, which is guaranteed in Section 207 of our Constitutions. And what is standard in the world is that no government should close down a media house for tax issues.
If GRA pursues this action in this way, it could lead to the total closure of the Daily Observer, which would raise the question as to, how therefore would GRA ever get all the arrears paid? If we recall when AFPRC came to power, they used both the law and might, without any consideration to pursue and close down many companies and business people just because of taxation and other administrative issues. What resulted in the end was that many businesses closed down while many people fled. People lost their livelihoods and families suffered. Thus we must learn from that past. There have been many anomalies in every sector of the Gambia thanks to the APRC Dictatorship. If we wish to solve all those issues with the full and uncompromising application of the law, then the collateral damage will be huge.
Let us remember that the Daily Observer predated the AFPRC and APRC. It was a glorious media house that contributed immensely to democracy in the Gambia until that Infamous Day came on 22 July 1994. First Yaya Jammeh deported the true owner of the company Kenneth Best in October 1994. Since then he intruded into this property until he occupied it unlawfully. He messed it up so much so that we do not even know the very owners of the company today. But Observer has fellow Gambians who work there to earn a living with their families. We cannot ignore those humanitarian concerns. Thus I think we must pursue other alternative means to ensure that the media house does not close yet it is guided to fulfill its tax obligations in full.
Since Yaya Jammeh deported Kenneth Best and illegally occupy this company, I have never been a fan of the Daily Observer. I even despise the newspaper more today as it continues to celebrate Yaya Jammeh despite the atrocities the Dictator inflicted on the newspaper itself. That notwithstanding, I would wish the Government follow the paper strategically so that we can unravel the intrusion of Yaya Jammeh in order to return this once noble newspaper back to its rightful owner Kenneth Best. My concern right now is the ‘intended or unintended’ impact of this action on freedom of expression and the media in the country.
In this regard, I would urge the Minister of Information Demba Jawo as well as the Gambia Press Union to intervene to see how to bring the Daily Observer and GRA to a table to discuss the way forward. In other words how can we save the newspaper component of this company such that the media does not suffer because of the gross irresponsibility of the company managers?
God Bless The Gambia.