Alagi Yorro Jallow

Any attempt to impose rules on what people can say in the Gambia is likely to prompt concern, and it should. When someone says or writes something you consider hateful, or otherwise improper or offensive, you now may call the police. It’s because of ‘Hate Speech’.

The police respond the same way they would if you report a purse snatching, a burglary, an assault or an attempted rape. The person who allegedly said or wrote the hateful thing is investigated by the police, and is potentially arrested, prosecuted and jailed. Does this sound like Freedom of Speech or ‘Freedom of Expression’ to you?

As horrible as the ideas of hateful people may be, there’s one thing more horrifying: The prospect of the government legislating and codifying the definition of “Hateful Speech Law” It’s a catastrophe to give this kind of power to any government official. It’s a recipe for divisiveness, hostility, and ultimately civil war and/or dictatorship. “Free Speech is the shield of the oppressed. When you have state police and you have capital punishment for ‘Hate Speech’, you will have tyranny and terror as a state policy. Many critics and social media enthusiasts will end up in Mile II Central Prison. Our condemned cells in the prisons will be filled with bloggers, critics and perceived political opponents” (A.Y. Jallow).

Free Speech is an important value in our society; so much so that it is enshrined in the Charter of Rights and Freedoms. Still, most Gambians acknowledge that this freedom is not absolute. Certain types of communication are considered unacceptable, particularly speech that intentionally incites others to violence or hatred against a particular group. The Criminal Code already provides for this, and more importantly, it sets out clear parameters for the successful prosecution of hate-speech offences and specifies the conditions under which statements that some may see as hate speech are legally permissible. And as with all crimes, conviction requires proof beyond a reasonable doubt.

The law on freedom of speech and expression, in its current form, fails even to define hate speech, leaving the grounds for a complaint on human rights open to interpretation of freedom of expression.

The courts, in turn, could decide — based on a level of proof that it determines itself — whether a person has engaged in or disseminated hate speech, or acted in such a manner as to cause such acts to be committed.

The political motivations behind hate speech law seem obvious. The anti-hate speech law may introduce as part of a “package” of sorts, rolled out in response to (among other things) concerns about the radicalization of impressionable people and a rising tide of public sentiment.

 Hate Speech law, in fact, goes a step further and empowers the police to make arrests without warrants based on suspicion alone of an offence being committed. Such far reaching power to the police which allows the law enforcing agency to simply ignore the concept of ‘presumption of innocence’ — Article 11 under the United Nations Universal Declaration of Human Rights — added is an even greater threat, to citizen’s right to dissent.

“Free Speech is Sacrosanct: Hate speech is often Free Speech, but how can we stop it?  A democratic state must balance its security exigencies with its constitutional obligations and moral duty to uphold the rule of law and respect fundamental rights of its citizens. Gambians must fight ‘Hate speech’, Hate Speech is a real threat to peace, unity and order of a nation but we must protect ‘Free Speech’. Even in the most contentious of political climates, even during a time when tensions are high, and conflicts are common, the notion of free speech must remain sacrosanct”( A.Y.Jallow).

With that in mind, the communication and law ministers should explain why exactly it is that citizens should not be concerned about their right to free speech and democracy itself, given that their right to dissent is a basic tenet of our democracy. The Communication and law ministers assured of removing the controversial Nana Grey Johnson amended Information Communication Technology Act, considered draconian by legal experts, free speech advocates and others. The fact, however, remains that some draconian provisions or Section of the ICT Act have already been repealed in the Digital Security Act which experts and activists have unequivocally said too endangers the right of citizens to free speech.

Considering this, we call on the communication and law minister to explain to Gambians such assurances, when the existing law on free speech is simply going to be replaced by another one which is equally, if not more so, considered a threat to the basic rights of citizens as enshrined in our constitution.

Free speech does contain useful amendments to existing law that would help crack down on so-called hate crimes. But changes could also be implemented through future legislation. As it stands, the hate-speech elements of the free speech law are enough for lawmakers to consider. Violence and threats of violence should be neither encouraged nor tolerated. We should do nothing to dilute power.