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Tuesday, October 20, 2020

On the Draft Constitution; the glass is half full, half empty for media Part 1

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By Saikou Jammeh

Issues in summary:
· On media and freedom of expression rights, the zero draft records many firsts in the constitutional building process in the country
· A number of limitations, however, are not justifiable in a democratic state and stifles an expressive citizenry
· The state-owned media is not desirably insulated from the political, financial and operational controls of the government in power
· Provides for a good-intentioned statutory regulatory body that invites undue state interference in the business of journalism
The draft of the 2019 Constitution is out and there is bad news.
The 1997 Constitution which is being replaced recognises and eloquently articulates the role of the press in the governance architecture. Curiously, the zero draft published for public scrutiny and consultations fails to grant any guarantee or recognition, implied or expressed, to the role of the press as the oxygen of the democracy promised.

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Freedom of expression and the rights derived from it – of press, of speech and of information – never enjoyed high standards of constitutional safeguards in The Gambia. The much hyped and much-anticipated zero draft, unfortunately, is not an exception. Not yet. It falls considerably short of the generosity of a democratic 21st Century, in articulating and safeguarding the preferred place of the media in the constitutional arrangement, media freedoms and broad issues of freedom of expression. The omissions are worryingly significant. That is besides concerns over disturbing provisions covering a number of areas, including state-owned media, media regulation, freedom of information and the claw-back clauses.

There is much more good news, though. The zero draft records many positive firsts in the history of constitutional building in the country. For instance, protection is specifically provided for other forms of protected expressions, such as academic freedom, artistic freedom and freedom of scientific research. Freedom of the media and freedom of information, previously seen as a redundant branch of the right to freedom of expression trunk, each now stands and is prominently protected as a distinct fundamental human right. The right to gather and report news is guaranteed. So are freedom of reporting and freedom from pre-publication censorship. This is in addition to the much welcome protection of I-rather-be-jailed principle of confidentiality in journalism. And, this one should be said in a whisper: there is a provision that provides protection for whistleblowing as the draft constitution places a welcome patriotic duty upon every citizen to expose wrong-doing, particularly abuse or wastage of state funds. Hurray!
In many ways, the draft constitution is a revolution. Freedom of expression and the rights derived from it are contained under Chapter 6, which provides for fundamental rights and freedoms. The chapter is divided into two parts and it is entrenched. The first part deals with General Provisions on Fundamental Human Rights and Freedoms. This section recognises and guarantees the inviolability of human rights and provides vital guidance on the implementation, interpretation and enforcement of the human rights guarantees provided in the constitution. The second part spells out the specific rights and freedoms in greater detail.

This piece is a four-part series that provides analysis of guarantees for media freedoms, freedom of information and freedom of expression. The first part deals with freedom of expression and freedom of information under section 44 and 46. The Part Two covers media freedoms under section 45. Part Three deals with media regulation and the final part deals with limitation clauses provided for the rights guaranteed.

Freedom of expression
Freedom of expression has long been recognised as a fundamental human right in The Gambia. The Republican Constitution of 1970 broadly guarantees the right to freedom of expression. Section 22 provides for the protection of the right to hold opinions, to receive and to communicate information and ideas without any interference. It further protects privacy of correspondence in the exercise of the right to free expression.

The framers of the 1970 Constitution made a bold attempt to generously guarantee freedom of expression rights in a rather wordy construction. It was inadequate. Freedom of information and media freedoms are not distinctly protected as a human right.

The 1997 Constitution is considerably less articulate in the protection of broad issue of freedom of expression, even though press freedom is explicitly recognised as a fundamental human right. Section 25 doesn’t cover – expressed or implied – the right of access to information. In fact, unlike many constitutions of its time, where the freedom of expression provisions are generally adapted from Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the 1997 Constitution does not even have such commonplace framing as the right to ‘seek, receive and impart information and ideas’.

Section 44 of the Draft Constitution guarantees the right to freedom of expression. In a precise and simple fashion, it says that everyone shall have the right to ‘seek, receive and impart information and ideas’. The right is not exclusive to citizens. As indicated earlier, artistic freedom, academic freedom and freedom of scientific research have all been protected. This is entirely new in The Gambia.

However, there is a notable absence of terms such as the right to seek, receive and impart information and ideas ‘of all kinds’, ‘across all frontiers’, ‘whether in public or private’. These are commonplace in the framing of freedom of expression provisions, but of course it can be a matter of context and whether adding those terms will add any value to the current draft.

On freedom of information
Section 46 guarantees the right of the public to access information held by public bodies and relevant private entities. This framing is largely inspired by existing international and regional instruments, in particular the African Union Model Law on Access to Information. One cannot but be pleased with the thoughtfulness of the framers by the inclusion of section 46(1)(c), which requires information held by another person to be disclosed if doing so is required for the exercise or protection of fundamental human right.

Sadly though, the right is made available only to citizens. This might be the case in a dwindling number of countries, but it is neither a best practice nor a standard under international law. The formulation should borrow leave from the Access to Information Bill, 2019. , which was tabled before the National Assembly on Tuesday December 03, 2019.
Furthermore, subsection 5 of section 46 provides for an Act of the National Assembly to “make further provision to withhold information where the harm to the interest protected under a relevant provision demonstrably outweighs the public interest in the disclosure of the information.”

This is a surprise and it is unnecessary. The primary obligation of the state under international law is to establish an Act of Parliament and mechanisms to give effect to the right. Furthermore, the Draft Access to Information Bill adequately caters for kinds of information that are exempted from disclosure.
Additionally, on freedom of information, it will make much more sense for the constitution to make it clear that where disclosure are involved, as indicated in various parts of the constitution, such as on asset disclosure and posting on the gazette, it should be done in a manner that facilitates public access.

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