by Madi Jobarteh
On the surface one is bound to appreciate Clause 107 in the Criminal Offences Bill as no one truly likes to be insulted. Human beings in general and certainly Gambians do not like and promote insult. However, insult is indeed a very prevalent expression in Gambian society. Walking down a street or go to the market or be in a taxi and even at home we constantly hear insults being hurled against each other. Even when we are happy or surprised, we release profanities!
But this is not the issue for the Gambia Government. Like other governments around the world, insult laws are created only to protect the ‘honour and dignity’ of public officials such as the president, parliamentarians and ministers etc. Yes, a president is a human being too and no one should insult him as a person or his or her parent. But when a person assumes public office one must also be prepared to receive criticisms some of which will indeed be unpleasant and uncivil.
After all, even with such laws one could also hear presidents and public officials also insulting citizens sometimes. What happens to them? What about opposition leaders or other prominent public figures who are also insulted sometimes? Why is this law not protecting their ‘honour and dignity’ as well? Are they also not leaders and citizens? This is still not a justification that citizens should insult the President. We must shun insults everywhere and no one deserves to be insulted. This is the bottom line.
International democratic norms stand against insult laws simply because in such laws, in the first place, there is never a definition as to what insult means. Because insult is not and cannot be conclusively defined therefore it is vague, broad and unlimited. This means eventually what constitutes insult depends on what public officials such as presidents, police officers and court officials wish to find insulting. This means this law places citizens at the mercy of public officials who ultimately will determine which expression is insult or not.
What is clear is that anywhere one finds insult laws it is indeed not necessarily to sanitize society and promote decency or morality. Why then are those same public officials who make these laws are also very corrupt as if corruption is not immoral and indecent? Therefore in any country one finds insult laws rest assured these are countries with governments that do not wish to have citizens scrutinise and criticise public officials and institutions. In such societies one will find that the prevalence of corruption, inefficiency and the lack of transparency and accountability is high within the Government perpetuated by public officials.
Because of such high levels of corrupt, inefficiency and waste of public resources citizens become more severe in their criticism. Some of this criticism will certainly be very personal. But one must not just look at the severity of the criticism alone. Rather we also need to look at the conduct of public officials whether they are not, in fact encouraging such extreme and unpleasant condemnations from citizens, because of their misconduct in public office.
Therefore, the solution is not to create a law which in most cases will only be used to clampdown on political opponents. Such laws only constrain and victimise citizens who express themselves with anger and frustration sometimes at the way and manner the government and public officials as a whole are failing in their duties. The solution therefore lies in having public officials from the President right down to the last public servant to be honest, open, efficient and abide by the rule of law. The greater and higher public officials demonstrate transparency, accountability and responsiveness in the protection of the rights of citizens and the efficient management of public wealth the less citizens will have a reason to engage in extreme and unpleasant criticisms.
This is why it is so disappointing that this Government of Adama Barrow could not have thought of anything better than to bring back the same Criminal Code as we have under Despot Jammeh. The sedition and insult provisions in the Criminal Code were one of the major weapons in the hands of Yaya Jammeh to silence and intimidate citizens. On multiple occasions citizens were arrested and put before sham trials just because they are accused of insulting the president or causing disaffection against the government.
By these provisions it means if I said the President is an idiot or that NAWEC is useless or that the CDS is a fool or that the Chief Justice is stupid or that the National Assembly is a toothless bulldog as my personal opinion it means I have not only insulted these public officials and institutions but I have also caused disaffection or hatred or contempt against the government for which I would be arrested and jailed. But in a democracy where citizens must take part in national affairs to hold the government accountable such citizens must have the right to express what they think about the decision or action of a public official or a public institution. This is why everyday citizens shout that NAWEC is useless. No one should be arrested of that.
If we could be arrested for saying NAWEC is useless when in fact, we are facing dire electricity and water supply or if we claim the President is an idiot for violating the Constitution, when in fact he is doing so, then it means citizens are prevented from holding their government accountable. This, in effect, is the very purpose of insult laws anywhere you find them on this earth! Insults laws are nothing but tools to stifle dissent, suppress citizen voices and limit popular participation just to make abuse, corruption, inefficiency and wastage at the level of the Government to continue with impunity.
With insult laws opinion becomes a crime especially where such opinion is unpleasant and directed at the Government and public officials on account of their jobs, i.e. whether they are performing well or not. Interestingly when citizens speak positively and favourably about Government that is not considered a crime rather Government loves to hear such praises. This only shows the dishonesty and stupidity of insult laws which are also discriminatory.
This is not the reason why Gambians voted on December 1 to oust a dictatorship. Therefore, let me tell Pres. Adama Barrow and his Cabinet that they do not own this country. The citizens of this country are not their slaves. I wish to put it to them that the sovereignty of the Gambia resides in the people of the Gambia and the President and his Cabinet Minsters all derive their legitimacy and authority from the people of the Gambia and they must perform their job in the name and on behalf of the citizen.
For that matter, when they create a law it must be a tool to respect, expand and protect the rights and freedoms of Gambians as the owners of the Gambia. Our laws must create an open and free environment in which citizens will exercise their sovereign rights to check and discipline the Government and its officers at all times.
This Criminal Offences Bill is not seeking to achieve that objective. Rather with these sedition and insult clauses, the Government is using this Criminal Offences Bill to deliberately attack, directly and squarely the very sovereignty of Gambians which must be resisted by all means. The Minister of Justice cannot claim not to know that insult laws are not for democracies. To seek to defend insult laws on the basis of morality and culture is indeed disingenuous and weak. There is no culture in the world that promotes immorality or insulting of parents. Therefore, to attempt to deliberately and smartly rephrase and maintain these bad provisions in the current criminal law and then present them as if they are new improvements is utterly unbecoming of a Minister of Justice in a democracy! It is dishonest, retrogressive and scandalous to say the least.
For the Gambia Our Homeland