Between Scylla and Charybdis Why Section 114 of the Criminal Code Must be Scrapped


LaminAs incredible as it may sound to legal and political observers, The Gambia Government is in the process of expanding the punitive contours of Section 114 of the Criminal Code, Volume III, Laws of The Gambia, 2009 (Section 114). From a misdemeanor attracting a maximum penalty of D500, and, or, six months imprisonment, the proposed amendments to Section 114, currently gazetted as a condition preliminary to the changes, ratcheted its punitive ambit to D50,000, and, or, five years imprisonment. However viewed, this is an utterly objectionable use of public power in a country presenting itself as an accountable democratic republic.

Section 114 is not only repugnant to the 1997 Constitution of the Republic of The Gambia (the Constitution), in at least two instances, it represents a direct affront to the treaty obligations of The Gambia. Even in its comparatively milder current form, Section 114 violates Article 19 of the International Covenant on Civil and Political Rights (ICCPR), as well as Articles 9 (the right to express and disseminate opinion within the law), & 13 (the right to participate freely in government either directly or through freely chosen representatives in accordance with the provisions of the law), of the African Charter on Human and Peoples’ Rights (ACHPR). Against the impossible threshold it must negotiate to become lawful, Section 114 must be scrapped, not rejuvenated. As law, it is abusive in the extreme, and no modern government even slightly enamoured of the human rights and dignity of its citizens can allow it on its statute books.
It appears that the wholly unnecessary concepts of “public service”, “public servant”, and even “public office” are introduced into the Constitutional text as some kind of management tool. In its determination to leave nothing to chance, to probably micromanage public life in its entirety, the political midwives of the Constitution elevated certain offices beyond the reach of ordinary civil service rules. Even in a bona fide rule of law jurisdiction, such precautions may not be necessary as able and independent minded jurists must demonstrate restraint and exercise requisite sensitivity to the species of dispute properly termed “political question”, i.e., one in which the Courts ought to decline jurisdiction because an issue fell within the exclusive legal, and, or conventional competence of the Executive, or the Legislature. Although 169 (2) is a section that invites interpretational opportunism, the prudent and just approach would appear to be that communications addressed directly to the President may be regarded incapable of triggering the so-called Section 114 offence.  In strict commonsense terms, the President is of course the preeminent public servant, but in light of the background against which we are challenging the legality of Section 114, the pertinent Constitutional provisions thrown into the mix must be strictly construed against the Government that crafted and shepherded this labyrinthine document into law.
Now that the Government has categorically conceded the clear command of section 166 (4) (a) that “the offices of President, Vice President, Speaker or Deputy Speaker of the National Assembly, Secretary of State or a member of the National Assembly” are not offices in the public service (seeForoyaa Newspaper, 02 April, 2013), it must compensate that category of person(s) who suffered needless and unlawful arrest, or detention, or prosecution, or conviction under Section 114.  If the Constitution, as it does, places the Presidency outside the public service, the President cannot be regarded as a “public servant” and no one should be prosecuted for giving him “information”, whether that information is “false”, truthful, or an amalgam of truth and falsity.
Incredibly, the Government justified its gazetted amending bill to the already repugnant and infamous law as intended “to ensure effective administration of criminal justice system, and specifically”:
section 114 of the Criminal Code which create the offence of giving false
information to a Public Officer is found to be grossly inadequate to the extent that
sections 166(4) and section 167 of the 1997 Constitution of the Republic of The
Gambia exclude the President, Vice President, Speaker or Deputy Speaker of the
National  Assembly, Ministers or Members of the National Assembly, etc. From
the definition of ‘public officer’ and therefore outside the contemplation of the
Criminal Code (Foroyaa Newspaper, 02/04/13)
According to the Government, “it is pertinent that the amendment to the Criminal Code be made to reflect the current socio-political realities”. This is an astounding rationale for engaging in conduct that clearly violates the Constitution and Gambia’s treaty obligations as evinced under pertinent sections of the ICCPR, and the ACHPR. In particular, in its General Comment N0 34 of 2011, the United Nations Human Rights Committee (UNHRC)—the body mandated to enforce the ICCPR—states emphatically that freedom of expression and opinion through whatever means “are indispensable conditions for the full development of the person…are essential for every society…[and]necessary for the realization of the principles of transparency and accountability.” In a subsequent case following the General Comment, Adonis v. Philippines in 2011, the UNHRC ruled that actions arising from the exercise of freedom of expression cannot be punishable by criminal law, nor is imprisonment legal for purposes of these actions. And where injury is caused to individuals such as imprisonment, adequate compensation must be paid by the state.
In light of the Government’s explicit admission that the law under whose ostensible authority many innocent Gambians were humiliated and punished was “grossly inadequate to the extent that sections 166(4) and section 167 … exclude the President, Vice President, Speaker … from the definition of ‘public officer’ and therefore outside the contemplation of the Criminal Code”, we are asking for just such compensation, and reinstatement, where applicable. We are thinking of those situated as Momodou Lamin Nget, Abbas Manneh, and Gumbo Ali Touray, all citizens of The Gambia, and all victims of a clear abuse of process and blatant miscarriage of justice.
As if by design, hardly a month lapses without some overwhelmed citizen or resident of The Gambia being hauled before Magistrates’ Courts accused of committing the now notorious offence of giving “false information to a public servant”. The prosecutions are highly visible because they tend to exhibit political undertones, and do not, on their face, sound persuasive enough to merit public support. Stated differently, “false information to a public servant” prosecutions are generally seen as malicious witch hunting by the State.
According to Section 114:
A person who gives to any public servant any information which he or she knows or
believes to be false, intending thereby to cause, or knowing it to be likely that he or she
will thereby cause the public servant –
(a)    To do or omit anything which the public servant ought not to do or omit if the true state
of facts, respecting which the information is given, were known to him or her, or
(b)   To use the lawful power of the public servant to the injury       or annoyance of any
       person, commits a misdemeanour and is liable on conviction to a fine of five
      hundred dalasis or to imprisonment for a term of six months or to both the fine
     and imprisonment
From a Constitutional perspective, a Section 114 offence was never legitimately triggered, and observers are right in querying why a public servant would deem it necessary to act in matters that are essentially civil and are best resolved under the civil defamation rubric of the law. In any case, if there is any authority to act at all, it is incumbent on a public servant to adequately ascertain facts before taking, or omitting to take, any action. Although factual circumstances may differ considerably, all prosecutions under this law represent a glaring abuse of public power.
Clearly, the law governing “false information” must only be part of the body of defamation laws and nothing else. When one makes allegations in a petition which are found wanting, the best course of action is to dismiss the petition, and where necessary, demand an apology from the petitioner. Or where the petition or aspects of it, make a claim, expressed or implied, that is likely to damage the reputation of another or demean him in the estimation of others, then surely, that is actionable within defamation laws, and not the Criminal Code. As long as the “false information” laws exist, petitioning would still bear risks that could squeeze petitioners between Scylla and Charybdis. The right to petition or express views through other means are fundamental part of a constitutional democracy and must be tolerated, if not encouraged. As if the current laws on “false information” are not bad enough, the gazetted amendments would further add devastating fault lines to Gambia’s already punctured constitutional governance system.
More fundamentally, the time is right for a comprehensive challenge to Section 114 on the ground it conflicts directly with express provisions of the Constitution. For example, at 25(1)(f) of the Constitution, it is expressly provided that “Every  person shall have the right to … freedom to petition the Executive for redress of grievances and to resort to the Courts for the protection of his or her rights”. In a contest between 25 (1) (f) of the Constitution, and Section 114, the former wins conclusively. This is the clear command of the Constitution! In explicit terms, the Constitution states that it is “the supreme law of The Gambia and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void” (see Section 4).
At Section 17 (1), Professor Jammeh’s government is under a positive obligation to protect the Fundamental Rights and Freedoms of citizens and residents of The Gambia. In its express words, “the fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by all organs of the Executive and its agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforceable by the Courts in accordance with the Constitution”.
Notwithstanding, we note that 25 (4) attempts to claw back rights explicitly granted in 25 (1) and (2). Crucially, it states that “The freedoms referred to in subsections (1) and (2) shall be exercised subject to the law of The Gambia in so far as that law imposes reasonable restrictions on the exercise of the rights and freedoms thereby conferred, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of The Gambia, national security, public order, decency or morality, or in relation to contempt of court”. Any attempt to root the foregoing in ordinary and inferior public order laws, and in ordinary and normal times, will not work as there is no possibility of such legislation supplanting the supremacy clause of the Constitution.  The “reasonableness” test needlessly included in the Constitutional text is a judicial tool, not an Executive sledgehammer!
Suffice to say that the fundamental freedoms are entrenched, and are therefore derogable only in an emergency, and expressly via an Act of the National Assembly (NA) (see Section 35 (1) of the Constitution). If such a power is invoked by the NA, Section 35 (2) authorises a reasonable, if temporary, suspension of Chapter IV rights:
Nothing contained in or done under the authority of such an Act shall be
held to be     inconsistent with or in contravention of sections 19, 23, 24
(other than subsections (5) to (8) thereof) or 25 of the Constitution to the extent
that it is reasonably justifiable in the circumstances arising or existing during a
period of public emergency for the purpose of dealing with the situation
As prosecutions under Section 114 are now too common for comfort, the Courts must reject unreasonable and unlawful Executive restrictions on 25(1) in so far as the Constitution, even if in theory only, remains the supreme law of the land. The supremacy statement is an express component of the Constitutional text, and as such, inferior law in the mould of Section 114 should be incapable of controlling it. In the face of Executive and Legislative denigration of the law, we nevertheless remain hopeful that eventually, the courts will uphold the authoritative, if severely compromised architecture of protected speech under our Constitution.
We are in no doubt Section 114 strikes at the heart of constitutional protection of expression categorically permitting the freedom to petition the Executive for redress of grievances (25 (1) (f). The Constitution also guarantees the right of “every citizen of The Gambia of full age and capacity … to take part in the conduct of public affairs directly or through freely chosen representatives” (see 26 (a)). Clearly, the right to petition lies at the heart of the ability to participate in public life, and there is no question Section 114 is extreme, draconian, and serves no purpose other than to unlawfully punish innocent Gambians. It is inconsistent with pivotal Constitutional provisions, as well as The Gambia’s overriding treaty obligations, and is therefore impermissible to decide such conflict in favour of inferior legislation. In the regrettable event the Executive and Legislative arms of Government failed to scrap Section 114, and its amending bill, it would be incumbent on the courts to void it as repugnant of the Constitution, and other superior treaty law.
A judicial scrapping of the law could be avoided by Professor Jammeh’s acceptance of the basic reality that there is no defensible point in amending Section 114. Now that the Government accepted its defects, this piece of law must be discarded, and all those unlawfully punished under it compensated, and, reinstated, where applicable. It must never again be used against unsuspecting Gambians who had the temerity to petition public servants, especially under the Executive arm of government, for a redress of some legitimate public grievance.
In The Gambia’s current political environment, no one is immune from the capricious application of public power. Mambanyick Njie, former Permanent Secretary, Youth and Sports, is before the courts on Section 114 allegations. Lamin Waa Juwara, former Minister of Regional Administrations, Lands and Traditional Rulers, is before the courts on so-called neglect of duty charges. Mamburay Njie, former Minister of Foreign Affairs remains on bail on unspecified economic crimes. Numerous high level officials travelled the same route, and many more are likely to do so. In Government, none of them apparently cared about the plight of their country’s persecuted. It is not too late for the Attorney General and Minister of Justice (the AG) to convince Professor Jammeh that Section 114 must be scrapped, not more lethally rejuvenated. In the event the AG saw no need to intervene on the side of legality, the National Assembly must do so on its own motion. At least one former member served time for an alleged Section 114 offence.
Should those in a position to scrap this law think the likelihood of them falling foul of it is too remote, we remind you of past victims and leave you with the counsel of Martin Niemoeller, a pastor of the German Evangelical Lutheran Church in the Nazi era:
In Germany, the Nazis first came for the communists, and I did not speak up, because
I was not a Communist. Then they came for the Jews, and I did not speak up, because
I was not a Jew. Then they came for the trade unionists, and I did not speak up, because
I was not a trade unionist. Then they came for the Catholics, and I did not speak up, because
I was not a Catholic. Then they came for me … and by that time, there was no one to
speak up for anyone.
We reiterate that Section 114 must be scrapped and its victims compensated, and where applicable, reinstated with full benefits.

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