Situating Media Freedom in the Final Draft Constitution
Let me share with you some key provisions of the Final Draft Constitution (FDC) that provides for media freedom in The Gambia. First, it is important to start with freedom of expression which is linked with media or press freedom as intertwined components of human rights.
Freedom of expression is protected by art. 46(1)(a) of the Final Draft Constitution. This freedom encompasses the right to seek, receive or impart information or ideas. It means that one is free to express his/her opinions by speaking, writing, printing pictures, or in any other manner.
However, it is extremely important to point out that as at art. 46(2) of the Final Draft Constitution, the right to freedom of expression is limited when it comes to “propaganda for war, incitement to violence or to break law and order; or advocacy for ethnic or religious hatred, hatred resulting in vilification of others or incitement to cause harm; or of hatred that is based on any ground of discrimination specified or contemplated in section 69 (6)”.
Bearing in mind of the negative potentials of the media, this type of restrain is also justified in international criminal and humanitarian law. For example, the media was used as a tool for incitement, and propaganda leading to violence and genocides such as the Rwandan genocide. Therefore, under article III (c) of the Convention on the Prevention and Punishment of the Crime of Genocide of 1951, incitement to genocide is prohibited. As in the case of the Prosecutor v. Bikindi (ICTR-01-72), the trial chamber of the International Criminal Tribunal on Rwanda found Bikindi who was a radio journalist guilty of direct public incitement through radio to commit genocide.
Also, art. 46 (3) of the Final Draft Constitution provides for the limitation of exercising the right to freedom of expression, to protect the reputation and rights of others. This implies that the Final Draft recognised that freedom of expression is not an absolute right to speak or to disseminate without responsibility whatever one wishes, nor does it provide unrestricted or unbridled immunity for every possible use of language, and does not prevent the punishment of those who abuse this freedom.
The right to reputation is an integral part of the dignity of individuals recognised in liberal constitutions. For Professor Barendt (2012), it protects individuals whose standing might be ruined forever by the publication of defamatory allegations, whether they were true or false. He suggests that without an enforceable right to reputation a politician or other prominent figure might be unjustly hounded out of public life, while ordinary individuals might find it impossible to secure employment or do business unless they can clear their name. Consequently, the right to reputation covers all Gambians regardless of status, which gives everyone the legal basis to challenge the media if necessary.
Furthermore, art. 47 (1)(2)(a)-(d) of the Final Draft Constitution provides for freedom of the media, which extends to the print and broadcast media. The essential elements of this freedom are; the right to media ownership, the right to gather, process and transmit news and information without any direct or indirect interference, protection from censorship, prohibition of prior restraint to publication, and protection of sources. These issues are relevant for an independent media to operate, and contribute to the life of an individual in a democratic polity, as a vital pillar of a free society that would serve as an instrument of social and political change.
However, there are several varying interpretations behind each of these principles in international jurisprudence. For instance, in Goodwin vs. United Kingdom (1996), the European Court of Human Rights emphasised the importance of protection of sources, which is one of the foundation bricks of press freedom. The court remarked that the absence of protection risks discouraging informers to help the press inform the public. In this respect, the court held that there is no freedom of the press, without the protection of its sources.
Taking into consideration the existence of Official Secrets Act 1992 in the Gambia, which restricts the media from obtaining information from public institutions presents another contradiction. The contradiction here is that most African countries have liberal constitutions, which provides for media freedom, but also uses secondary legislation to stifle the concept of media freedom.
I have also noted that the Access to Information Bill 2019 was tabled before the National Assembly that is designed to enforce the right to access information from public bodies if it comes into law. This is also provided for under art. 48 (1)(a)-(c) of the Final Draft Constitution.
Here I return to art. 47 of the Final Draft Constitution, which sets out several concepts of media freedom including protection from control before publication. In my view, the specific purpose of this provision is to ensure editorial independence and independent journalism. However, one has to link this to the practical realities of the political economy of the media in the Gambia to understand its applicability.
In my PhD thesis, I explored the types of media control in Africa, and found that the media is mainly controlled by those with wealth or power in politics. In this respect, the media is directly or indirectly controlled by the State through government regulation, ownership, or control of advertising revenue of the private media.
Other studies have found that the commercial print media makes a marginal profit, whilst the commercial radio is largely unprofitable in Africa. Therefore, the government can indirectly control news content, by providing subsidies, government advertising, or outright bribes to encourage the private owner to bias coverage away from the commercially optimal editorial policy. I believe that the media can be arguably protected from direct government control by law, but it is not enough to prevent it from being controlled by other measures.
It is important to state that the Final Draft Constitution has good intentions for media freedom in the Gambia, but comes with complexities that would make it practically difficult to enforce.
Sulayman Bokar Bah is a Doctoral Researcher on Media Law and Journalism in Post-Colonial Africa at Birmingham City University. His profile is available on http://pgrstudio.co.uk/pgr_profile/sulayman-bah/?doing_wp_cron=1587818497.4416449069976806640625