GAMBIA PRESS UNION POSITION PAPER ON THE CYBERCRIME BILL, 2023

GAMBIA PRESS UNION POSITION PAPER ON THE CYBERCRIME BILL, 2023

INTRODUCTION

1. The Cybercrime Bill, 2023 is aimed improving the Gambia’s capacity to respond to cybercrime incidents adequately, according to the Minister of Communication and Digital Economy, on whose behalf the Bill was presented to the National Assembly on March 4, 2023.

• From our own assessment, there are a few clauses in the Bill that raises some concerns with regards press freedom and freedom of expression that are likely to affect specifically the media, human rights activists, opposition activists, and generally, members of the public and social media users.

• These provisions include:
• Section 4, Subsection 7
• Section 6(1)(a); and subsections (b) and (c).
• Section 16, and subsection (6)
• Section 17(6)
• Section 18(2)

• This Gambia Press Union position paper on the Cybercrime Bill, 2023 seeks to examine the legal framework to present a case on how it meets (or fail to meet) the standards necessary for the promotion and protection of press freedom and freedom of expression in The Gambia.

POSITION ON THE CYBERCRIME BILL, 2023

• Section 6(1)(a) creates the offense of ‘false news or information against a person’. The offense of ‘false news or information’ is overly broad and lacks clarity, posing a significant threat to human rights. In 2018, the ECOWAS Community Court ruled against the inclusion of ‘false news’ in the Gambia’s Criminal Code, citing its adverse impact on journalists’ and freedom of expression. This decision stemmed from a lawsuit filed by the Media Legal Defence Initiative and the Federation of African Journalists (which the Gambia Press Union is a member of) challenging the constitutionality of several Criminal Code offenses, including ‘false news.’ Including this offense in the current Bill would perpetuate the risks faced by journalists, whistleblowers, anti-corruption bodies, and human rights defenders, undermining freedom of expression and impeding efforts to combat corruption and human rights abuses, and to promote good governance, transparency and accountability.

• Similarly, subsections (b) and (c), which establish the offenses of ‘inciting violence against a person’ and ‘bullying, abusing, or making derogatory statements against a person,’ respectively, present similar challenges to human rights defenders, journalists, and ordinary citizens due to their ambiguous language. The lack of clarity regarding what constitutes ‘incitement,’ ‘bullying,’ ‘abuse,’ and ‘derogatory remarks’ leaves these provisions open to misinterpretation and potential abuse, particularly in targeting journalists. These provisions also infringe on the constitutionally guaranteed rights of the media to hold the government and public officials to account (Section 207, 1997 Constitution).

• We note that there is already a provision in the Criminal Code, which was replicated in the Criminal Offences Bill, 2022 on “False Publication and Broadcasting”, which places severe restrictions on media freedom and freedom of expression despite recommendations by the Gambia Press Union and the ECOWAS Court of Justice for its removal from the penal code.

• Similarly, in 2018, The Gambia’s Supreme Court in a landmark judgement gave a major boost to the enjoyment of digital rights by declaring as unconstitutional the law on “False Publication on the Internet” – which was a 2013 amendment to the Information and Communication Act – following a suit by the Gambia Press Union filed in April 2017.

• The above provisions in the Cybercrime Bill, 2023 contradict the core Constitutional rights which directly affect the freedom of the media, freedom of speech and expression as found in Sections 25(1) (a) and 207 (1) and (3) and 208 of the 1997 Constitution.

1. Therefore, the provisions in Section 6 1(a) and subsections (b) and (c) of the Cybercrime Bill, 2023 should either be removed entirely or revised to ensure they do not infringe upon fundamental rights and freedoms.

1. Section 25 (1) (a) of the 1997 Constitution provides that every person shall have the right to “freedom of speech and expression, which shall include freedom of the press and other media”.

1. Section 207 (1) and (3) provide as follows:

“207. Freedom and responsibility of media

 (1). The freedom and independence of the press and other information media are hereby guaranteed.

(2). The press and other information media shall at all times, be free to uphold the principles, provisions and objectives of this Constitution, and the responsibility and accountability to Government to the people of the Gambia”

13. Section 208 provides,

          “208 Responsibility of state-owned media

All state-owned newspapers, journals, radio and television shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions”.

GAMBIA’S OBLIGATIONS UNDER INTERNATIONAL LAW

14. The Gambia is a party to the United Nations General Assembly Resolution 217A (III)

       referred to as the Universal Declaration of Human Rights. Article 19 of the Resolution 

       states,

“Everyone has the right to freedom of opinion and expression: this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers”.

15. In 1979, The Gambia ratified the International Covenant on Civil and Political Rights

       (ICCPR) Article19 of the Covenant states:

“19 (1) Everyone shall have the right to hold opinions without interference.”

(2) Everyone shall have the right to freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.

(3) The exercise of the rights provided in paragraph 2 of this article carries special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) for the respect of the right and reputations of others;

(b) for the protection of national security or of public order or morals”.

The Three-Part Test or the Oakes Test contained in Article 19 is incorporated in the limitations to freedom of expression and the media in Sections 25(4) and 209 of the Constitution of 1997.

16. The Gambia is also a party to the African Charter on Human and People’s Rights of 1986

      commonly referred to as the Banjul Charter. Article 9 of the said Charter provides that:          

    “1. Every individual shall have the right to receive information”.

   “2. Every individual shall have the right to express and disseminate

         his opinions within the law”.

   Article 27(2) of the Charter provides the limitation to the enjoyment of the rights conferred by

   Article 9 and provides that “the rights and freedoms of each individual shall be exercised

   with due regard to the rights of others, collective security, morality and the common interest”.

17. In Article 66(2)(c) of the Treaty of ECOWAS to which the Gambia is also a party, it is provided that states parties should ensure “respect for the right of journalists. It is obvious that amongst those rights is the right to freedom of expression.

1. Section 16 of the Cybercrime Bill, 2023 grants broad authority to authorized persons to search and seize computer systems, programs, data, or storage mediums if there are reasonable grounds to believe they contain evidence of an offense or has been acquired through the commission of an offense. While the need for a court warrant is essential as it provides for judicial oversight over the exercise of this power, the requirement for ex-parte application for this warrant means that the target of the search and seizure would not be notified in advance. This could lead to situations where individuals are unaware of actions being taken against them, potentially violating their rights to due process and fair trial. We also see a repeat of the ex-parte warrant provisions in section 17 (6) on “real-time collection of traffic data”,and section 18 (2) on “interception of content data”.

1. Section 16, Subsection 6 also mandates the use of reasonable force during seizures, the interpretation of what constitutes “reasonable force” could vary and may lead to excessive use of force in some cases, potentially infringing on the rights of individuals.

• Section 4, Subsection 7 alsoincludes penalties for obstructing the exercise of powers granted under the section, with fines and imprisonment as potential consequences. While it’s essential to deter obstruction of justice, the severity of the penalties could potentially discourage legitimate forms of protest or resistance against unjust searches or seizures.

RECOMMENDATIONS

• In due regard to the 1997 Constitution, conventions and treaties to which The Gambia is a party, we hereby recommend the following:

1. The provisions in Section 6 1(a) and subsections (b) and (c) of the Cybercrime Bill, 2023 should either be removed entirely or revised to ensure they do not infringe upon fundamental rights and freedoms.
2. That the Cybercrime Bill, 2023 be subjected to a review by a special committee of the National Assembly
3. That the Cybercrime Bill, 2023 be open to public consultations involving all relevant stakeholders including the National Human Rights Commission, Gambia Bar Association, Female Lawyers Association, Gambia Press Union, The Association of Non-Governmental Organisations and other civil society organisations and consumer groups like the Consumer Protection Alliance etc

CONCLUSION

• The Gambia Press Union is willing and ready to contribute to any such public consultation with a view to improving the Cybercrime Bill, 2023 in line with international human rights standards.

23. The Gambia Press Union expresses its fervent hope that the National Assembly would give due consideration to its position on the way forward as articulated in this document.