About three months in the past, exactly on the 14th of February 2018, the Court of Justice of the Economic Community of West African States, pointedly delivered a judgment in favor of press freedom in the Gambia.
The case earlier than the ECOWAS courtroom had been triggered by the story of 4 Gambian journalists, Fatou Camara, Fataou Jaw Manneh, Alhagie Jobe, and Lamin Fatty, who had been arrested, detained and intimidated for his or her work as journalists in the Gambia; a ‘democratic’ nation. They had a lot feared additional persecution “including the fear of physical and mental harm” that they fled their nation into exile.
The case (Suit No: ECW/CCJ/APP/ 36/15) was then filed in the title of the Federation of African Journalist (FAJ) and the 4 aforementioned journalists, in opposition to the Republic of the Gambia and the ECOWAS courtroom was referred to as upon to find out the appropriateness of such legal guidelines upon which the Gambian authorities rely to repress press freedom, specifically the Information and Communications Act and a few provisions in the Gambia Criminal Code, and for the ECOWAS courtroom to order The Gambia to repeal these legal guidelines and enact extra beneficial legal guidelines.
These legal guidelines didn’t solely repress press freedom, the suitable to data and expression, proper to liberty and safety and the liberty from torture and inhuman therapy, it additionally imposed ridiculous penalties. For occasion, one of many journalists had been slammed with the penalty of paying 250,000 GMD (approx. $5299.42USD) for criticizing the federal government and the president. Even extra ridiculous was that the penalty was to be payable inside 2 hours and if not, she’d need to spend four years in jail.
In giving its judgment, the ECOWAS courtroom declared that the Gambian authorities had violated the rights of the Defendant and directed her to instantly repeal and/or amend the related legal guidelines in line with its obligations underneath the African Charter on Human and Peoples Rights, the International Convention on Civil and Political Rights, the ECOWAS revised treaty and different worldwide devices. This laudable judgment has been described as a landmark one which restored hope to press freedom in the Gambia, offering justice and respect for the rights of the Gambian individuals, particularly the journalist.
However, on the ninth of May 2018, the Supreme Court of Gambia declared that though felony defamation and false publication are unconstitutional, sedition is simply partially unconstitutional. That is, that Sedition nonetheless validly exists as an offense solely when mentioned speech is made in opposition to the President. Why this was declared by the Supreme Court of a nation that subscribes to democracy is past comprehension.
In addition to this declaration being overtly in opposition to the order made by the ECOWAS courtroom in FAJ v. The Gambia, it additionally negates different parts of the precept of democracy. Democracy exhibits no favoritism for a single elected consultant with none democratically sound purpose. Democracy favors the great of the individuals over the pursuits of the federal government; whether or not as a complete or for a person politician. The rule of regulation, a part of democracy, requires that the regulation is to manipulate above all individuals and nobody is to be above the regulation. The query due to this fact is: If it isn’t constitutional for sedition to exist as a crime in opposition to the federal government, why then ought to or not it’s constitutional for it to exist in opposition to the President?
Above all of those, a main purpose why this ruling by the Supreme Court of Gambia is anti-democratic is that by going in opposition to the specific Order of a superior courtroom, it’s has positioned itself in opposition to the democratic mechanism of checks and balances.
By advantage of Article 5(three) of the ECOWAS Revised Treaty, every Member State undertakes to honor its obligations underneath the treaty. Article 15(four) extra immediately states that the judgments of the ECOWAS courtroom are binding on the Member States.
The Gambia (which incorporates the judiciary) can not declare that it has absolute powers to make choices because it deems match over the Gambia individuals because it has ceded a few of these powers to the ECOWAS courtroom and should comply when such ceded powers are exercised. The ECOWAS Court addressing this problem in Musa Saidykhan vs. The Republic of The Gambia mentioned:
“ECOWAS is a supranational authority created by the Member States wherein they expressly ceded some of their sovereign powers to ECOWAS to act in their common interest. Therefore, in respect of those areas where the Member States have ceded part of their sovereign powers to ECOWAS, the rules made by ECOWAS supersede rules made by the individual Member States if they are inconsistent …Therefore, it is untenable for the Member State of ECOWAS to claim that a matter is essentially within its domestic jurisdiction when it had expressly or by necessary implication granted ECOWAS powers to act solely or concurrently with national jurisdiction in respect of that matter”
The Republic of Gambia is due to this fact referred to as upon to do the suitable factor; to completely adjust to the order by the ECOWAS courtroom by ruling Sedition as totally unconstitutional – each concerning the federal government and the President.
Adeboro Odunlami works with Paradigm Initiative as Digital Rights Program Assistant.