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Friday, November 27, 2020

“Reforming The Gambia media to better Contribute to democratic governance”

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(A Law lecture, delivered by Dr. Henry D.R. Carrol – M.R.G. As the guest speaker at the official opening ceremony of the
Observer Company (Gambia) Ltd weeklong media capacity building programme, on Thursday 4th May 2017, at the Daily Observer conference room.)

Let me first of all place on record my mammoth gratitude to Mr Pa Modou Mbowe, the able incumbent Managing Director Of The Daily Observer Newspaper Company Ltd, for graciously inviting me, both orally and in writing, as The Guest Speaker of this auspicious occasion,which is the Official Opening Ceremony of a Weeklong Media Capacity Building Programme Designed For Reporters, Editors And Layout Editors Of The Daily Observer Newspaper. I have taken note of the fact that, this project is part and parcel of the E.U. – U.N.E.S.C.O. wider project, intended to build the capacity of Gambian Journalists. The Topic of my Law Lecture is:-“Reforming The Gambia Media To Better Contribute To Democratic Governance.”

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In Constitutional Law, there exists what is known as “The Doctrine Of The Separation Of Powers”, which was first formulated in 1690 (ie in the 17th Century), by an erudite English Jurist, John Locke in his masterpiece Law Book entitled:- “Second Treatise Of Civil Governance”, in which he authoritatively  wrote:- “It may be too great a temptation to humane frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage.” This powerful quotation of Mr Locke, brings surfacing to the landscape of my mind, this famous Latin maxim in Common Law:- “nemo judex in causa sua” (i.e. no person can be a judge in his/her own cause). The aforesaid powerful quotation, also reminds me of another powerful Constitutional Law quotation of Lord Acton (a British Constitutional Law expert), which goes thus:- “Power tends to corrupt, and absolute power, corrupts absolutely.” This Doctrine, was further developed by a famous French Jurist, Montesquieu, who based his legal exposition on his detailed legal analysis of Britain’s 18th Century Constitution, (which was and is still, largely unwritten). This Doctrine asserts that, within a system of Government based on law, there are three arms of Government namely:- The Legislature, The Executive and The Judiciary, whose responsibilities are:- to legislate, to implement the law and to interprete the law, when there is a legal dispute, between an individual and the State or between an individual  and another individual, by using what is known as “The Three Canons Of Statutory Interpretation” (ie “The Literal Rule”, “The Golden Rule” and “The Mischief Rule, otherwise known as “The Purposive Approach.”) The Gambia’s 1997 Constitution, is by and large drafted on the basis of “The Doctrine Of The Separation Of Powers.”

“The Press” in Constitutional Law, is called “The Fourth Estate Of The Realm”, and its tripartite Official functions are: – “to inform, to educate and to entertain”, and all of these functions have a common denominator, which is “Truth”. The Holy Bible says:- “The truth shall set you free.” As a Canadian – Trained Theologian, I strongly believe in this powerful biblical quotation, from John Chapter 8, Verse 32. The late Rev. DR. Martin Luther King – JR, (the famous black American Civil Rights Activist), in his famous “I Have A Dream” speech, made this powerful quotation from an erudite British Methodist Hymn writer, James Russell Lowell 1819 – 1891:- “Truth forever on the scaffold, wrong forever on the throne, yet that scaffold sways the future, and beyond the dim unknown, standeth God within the shadows, keeping watch above his own”.  Qualified and responsible journalists must therefore always embark on “investigative journalism”, in order to ascertain the truthfulness or otherwise of their articles, before publishing them. To do otherwise, will be engaging in “gutter journalism”. Because if they publish an article, which is not truthful, and which adversely affects the reputation of another person, they can therefore rightly be sued in The Law Of Tort/Civil Law for “defamation”, which is authoritatively defined by the aforesaid law thus:- “Defamation is the lowering of a person’s dignity and integrity, in the opinion of the right-thinking members of Society”. If a defamatory matter is written or published, it is called “Libel”, and if it is spoken or uttered, it is called “Slander”. If a victim of defamation, proves his/her case in a court of law, on a balance of probability or with a preponderance of evidence, the Learned Presiding Judge or Magistrate, will order the Tortfeasor (i.e. the person who is liable for having committed a tort or civil wrong), to pay damages (i.e. monetary compensation), to the victim of defamation. A victim of defamation, must also prove in Court, that the alleged defamatory matter, adversely or seriously affected his/her reputation, because of this famous Common Law Latin maxim :- De Minimis Non Curat Lex (i.e. the Law does not concern itself with little things or inconsequential trivialities). “Truth” is also a very important ingredient of “Justice”, which The Oxford Dictionary Of Law, by Elizabeth A. Martin – M.A. Oxford, authoritatively defines as :- “ a moral ideal, which the Law seeks to uphold, in the protection of rights and the punishment of wrongs.”In English Literature, “Personification” is a figure of speech, which means giving inanimate (non-living things) human characteristics. The veteran Methodist Hymn Writer, Julia Ward Howe (1819 – 1910),  in Stanza 1 Methodist Hymn No 260, graphically makes a Personification of “Truth” thus :- “Mine eyes have seen the glory of the coming of the Lord, he is trampling out the vintage, where the grapes of wrath are stored, he hath loosed the fateful lighting of his terrible swift sword, his truth is marching on.” In a Judicial proceeding, all witnesses either take an Oath (either holding The Holy Bible or The Holy Quran, depending on their faith, or alternatively, they may choose to affirm), and say that they solemnly swear/affirm “…to say the truth, the whole truth and nothing but the truth, so help me God…”. If any person tampers or attempts to tamper with the “Truth”, a Criminal Offence may be allegedly committed. Hence the heinous Offence of “Perjury” (telling a lie under Oath), the Common Law Offence of “Conspiracy To Pervert The Course Of Justice” etc. Stanza 1of Hymn no 859 of The Gambia Methodist Church (my Church), ably authored by James Russell Lowell (1819 – 1891), inter alia reads: – “Once to every man and nation, comes the moment to decide, in the strife of truth with falsehood, for the good or evil side…”

Section 25(1) (a) of the aforesaid Constitution reads: – “Every person shall have the right to: – (a) freedom of speech and expression, which shall include freedom of the press and other media. ” It is of paramount importance to highlight the fact that this Constitutional Right, is not the exclusive divine right for journalists alone (as some journalists myopically believe).On the contrary, it is also an important Constitutional right, for “Every person” within the territorial integrity of The Commonwealth Republic Of The Gambia. As the famous adage goes:- “your rights stop, where someone else’s begin. ”  Once journalists take note of this sacrosanct and inviolable principle of Constitutional Law, this will be the first and most important step for, “Reforming The Gambia Media To Better Contribute To Democratic Governance.”

“Democratic Governance” means, a system of Governance based on Democratic Principles. One of the earliest and late American Presidents, Abraham Lincoln, authoritatively defined “Democracy” thus:- “Democracy is Government of the people, by the people and for the people.” The Oxford Advanced Learner’s Dictionary, by A.S. Hornby, authoritatively defines “Democracy” thus :- “1. Country with principles of Government, in which all adult citizens share through their elected representatives. 2. Country with Government which encourages and allows rights of citizenship such as :- freedom of speech, religion, opinion and association, the assertion of the rule of Law, majority rule, accompanied by respect for the rights of the minorities. 3. Society in which there is treatment of each other by Citizens as equals, and with absence of class feeling.” The aforesaid Dictionary also defines “Democratic” thus :- “1. Of, like, supporting Democracy 2. Especially of, supporting Democracy. 3. Paying no or little attention to class divisions based on birth or wealth.”

The Commonwealth Republic Of The Gambia, is for all intents and purposes “A Democratic State”, as evidenced by Section 214 (1) of The Gambia’s 1997 Constitution, which reads:- “The Gambia shall be a Democratic State, dedicated to freedom, peace, progress, prosperity and Justice.” The laconic phrase: – “…peace, progress, prosperity ….”, are very important words, that can also be found on a ribbon at the bottom of The Gambia Coat Of Arms, but in a different sequence. For more important information on The Gambia Coat Of Arms, let me now quote the last paragraph of Page 59 of my recently concluded Female Gender Law book (my 5th Law Publication), entitled:- “Violence Against Women And Women’s Rights In The Gambia (Case Study)”,  which reads thus :-  “The Coat Of Arms Of The Gambia, which was Officially promulgated on 18th November 1964, contains two lions standing upright, one holding an axe and the other a hoe, bracing a shield between them.  A heraldic helmet is on top of the shield with an oil palm as a crest. “Progress – Peace – Prosperity” the National Motto, is printed on a ribbon, at the bottom of the shield. The two Lions represent the Colonial history of The Gambia, as part of the then British Empire. The crossed Axe and Hoe, represent the significance of agriculture to The Gambia. They are also regarded, as representing the two key ethnic groups of The Gambia, the Mandinka and the Fulani. A palm tree, is also an important Gambian tree. This Coat Of Arms Of The Gambia, was the figment of the fertile artistic imagination, of the late Gambian-born, MR. Nicholas Rene Potin, who was working as a Government Civil Servant, at The Department Of Surveys. The use of The Coat Of Arms Of The Gambia, is legally regulated by The Coat Of Arms Of The Gambia Act (1971).”

According to The Oxford Advanced Learner’s Dictionary by A. S. Hornby, “Press” is authoritatively defined as:- “…printed publications, the newspapers generally, journalists…”. It goes on to define “a Journal” thus:- “1. Daily Newspaper, other periodicals,  2. Daily Record of News, Events, Business Accounts etc” and it also defines “Journalist” as, “a person engaged in journalism”. The aforesaid Oxford Dictionary finally defines “Media” thus:-“ the media [uncountable + singular or plural verb], the main ways that large numbers of people receive information and entertainment, that is television, radio, newspapers and the Internet…”There is therefore, an urgent need for The Gambia Media to be reformed, in order to enable it, to better contribute to Democratic Governance in The Gambia. Presently, The Gambia Media is divided into (1) The Print Media and (2) The Electronic Media. Concerning The Print Media, the present leading Gambian Newspapers are:- The Daily Observer Newspaper, The Standard Newspaper, Forooya Newspaper, The Voice Newspaper, etc.  All or most of the aforesaid Newspapers, were first Officially registered with The Registrar General & Registrar Of Newspapers etc, at The Attorney General’s Chambers & Ministry Of Justice, under The Newspaper Act (1944), Cap 32:04, as amended by The A.F.P.R.C Newspaper Act (Amendment) Decree. Now under The Revised Laws Of The Gambia (2009), the relevant Gambian Law for the Official Registration of new newspapers is:-Newspaper And Broadcasting Stations Act, Cap 74:04, which I believe has now repealed and replaced both the aforesaid 1944 Newspaper Act and the aforesaid A.F.P.R.C. Decree. The Daily Observer Newspaper, the Forooya Newspaper and The Standard Newspaper, are all published by 3 registered Newspaper Companies namely :- The Observer Company (Gambia) Ltd, Forooya Publication Co. Ltd, and Ex Standard Company Ltd respectively. These Newspaper Companies, were first registered under the old Company’s Act of 1955, now repealed and replaced, by the new Company’s Act of 2013. After having been registered under the aforesaid Company’s Act, with the then Registrar Of Companies (who is now Mr. Lamin Touray), they went the extra Legal mile, and also got registered under the then Newspaper Act, with the then Registrar General & Registrar Of Newspapers (who is now Mr. Alieu Jallow). Concerning The Point Newspaper, it was registered with the then Registrar Of Companies, as a Partnership under The Partnership Act, and the Partnership Deed, was also registered with the then Registered General. The Daily Observer Newspaper is the first Gambian Daily Newspaper. “Vel Primus, Vel Cum Primus”(Latin ie either the first or among the first). Its first Managing Director, Founder and Majority Share-holder was Mr. Kenet Y. Best, a Liberian Citizen, who was the able Managing Director of this reputable Gambian newspaper, from 1992-1994.

Section 207(1) (2) & (3) of the aforesaid Constitution read:- “(1) The freedom and independence of the press and other information media are hereby guaranteed. ” “(2) An Act of the National Assembly may make provisions for the establishment and operation of the press and other information media.” “(3) 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 of the Government to the people of The Gambia.” Finally, Section 208 of the aforesaid Constitution reads:- “ All State owed Newspapers, journals, radio and television shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinion. ” It is my humble and considered opinion, that if The Gambia Media is reformed and it fully complies with the aforesaid very important Constitutional provisions, then it will be strategically positioned, to enable it to effectively contribute to Democratic Governance in The Gambia. The umbrella body for The Gambia Media, is The Gambia Press Union, which is a Trade Union, which is also registrable with The Registrar General & Registrar Of Trade Unions etc, at The Attorney General’s Chambers & Ministry Of Justice, under The Labour Act (2007). As The Legal Adviser Of The Labour Advisory Board, established under the aforesaid Act, I would advise all members of The Gambia Media, to at all times, fully comply with The Gambia Constitution (the first and highest law in the land or “the grundnorm”, to use the appropriate Jurisprudential terminology) and all other laws of The Gambia, because “if you live in a glass house, you must not throw stones”, or as the maxim of the Doctrine Of Equity goes:- “He who comes to equity, must come with clean hands.” The present Democratically elected President Of the aforesaid Union, is Mr. Bai Emil Touray, while the appropriate Honourable Cabinet Minister, whose portfolio covers media matters is, the Honourable Minister Of Information & Communication Infrastructure, who is presently, my good friend, Honourable Mr. Demba A Jawo. I am very grateful to :- Mr Lamin Touray, Mr Alieu Jallow and Onome E. Obuotor Esq (Parliamentary Counsel), “My Learned Friends”  at The Ministry Of Justice, for assisting me with my detailed Legal Research for this Law Lecture.

Distinguished ladies and gentlemen, here terminates my laconic Law Lecture. I now open the floor for questions and contributions from participants, and I thank you all, for your kind and undivided attention. MAY GOD BLESS YOU ALL, THANK YOU.

Note:- The Guest Speaker, DR. Henry D.R. Carrol – M.R.G., is inter alia a Solicitor General Emeritus Of The Gambia (i.e. The Deputy Chief Legal Adviser Of The Gambia Government, from 2007-2009), a Visiting Professor Of Land Law, at Kwame Nkrumah University Of Science & Technology, Ghana (2012), a Founder Senior Law Lecturer Of The Faculty Of Law Of The University OF The Gambia (U.T.G.), from 22/1/2007 to date, etc.

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