By EFSCRJ
Following its initial tabling before the National Assembly in 2019, we are pleased to learn that the Criminal Offences Act and the Criminal Procedures Act have both been assented to by President Barrow on 28th March 2025. The Criminal Offences Act was a colonial law enacted in 1933 and amended more than 30 times until 2005. Thus, we welcome this development, which is part of the country’s ongoing legal reforms within its transitional justice process.
Experts have noted that a criminal code is a comprehensive set of laws that define crimes, their elements, and the corresponding penalties. It serves as the primary legal document outlining what constitutes criminal behavior, the procedures for prosecution, and the punishments for offenses.
Unfortunately, the British colonialists had used the Criminal Code, as it used to be called, to restrict, deny, criminalize, and punish citizens for the exercise of their rights. Through this erstwhile draconian law, they were able to prevent citizens from demanding representation, accountability, and Independence. Post-independence governments have also utilized the Criminal Code to further deny or punish citizens for exercising their right to participate in and influence public policy, as well as to hold institutions and officials accountable.
Since Independence, the various governments have failed to fundamentally transform the Criminal Code to remove all obnoxious and draconian provisions, such as sedition, so as to empower citizens further to become active players in the country’s destiny. Through this law, several citizens were arrested, detained, and jailed, while abuses by public officials and institutions were left unaddressed. It is in this regard that we commend the Barrow Government for taking the right step in reforming the law to bring it in line with human rights standards.
Notwithstanding, we have several issues and concerns with the new law, which we wish to highlight and demand further amendments. In essence, we have identified several provisions that undermine fundamental freedoms, limit accountability, and create the possibility of infringements, given the immense powers granted to the President or Minister.
- Section 45 – Inciting to sedition or disobedience to lawful order
This provision makes it an offense for a person to ‘incite’ a soldier or police officer to sedition on one hand. On the other hand, it also makes it an offense for a soldier or a police officer to disobey “any lawful order by a superior officer.”
We find this provision too broad, as it undermines free speech on the one hand, and the other hand, it could potentially enable an officer to carry out ‘lawful orders’, which could constitute human rights violations. We recall the recent clampdown on GALA protesters, where police officers sought to crush the protest on the notion that they were carrying out lawful orders when this was the contrary.
International human rights law has established that security officers are held personally responsible for their actions. Hence, the Act should have defined the parameters and standards of a lawful order. Furthermore, individuals could be found liable for comments deemed to incite soldiers or police officers when they are merely expressing their lawful opinions. Such opinions should not be conveniently deemed incitement to security officers, much more sedition. A soldier or police officer should take responsibility for his actions, which should not be blamed on another person.
- Section 49 – Power to prohibit publications
This provision, under subsection 1, empowers the minister to prohibit the importation of publications on the basis that they damage public order, health, morals, or security. Subsection 2 similarly enables the President to ban the importation of any magazine published by any company, firm, institution, or person, either in the Gambia or abroad, for the same reasons.
This provision has granted immense power to both the President and the minister, with no checks and balances, i.e., there is no judicial review. Hence, both the minister and the President have absolute and unilateral power to prohibit a publication without any constraint. This provision poses a direct threat to freedom of opinion and expression, as well as academic freedom as enshrined in Section 25 of the Constitution.
This provision has all the hallmarks of arbitrariness and abuse of power. It allows the Government to ban any publication which it deems inappropriate.We recall a recent case in the US in 2020 when Pres. Trump attempted to suppress the publication of certain books that he considered harmful to him. Had there been no safeguards, such as judicial review, he would have successfully banned those publications. However, because he lacked the authority to do so unilaterally, he had to seek a court order, and the Supreme Court ruled against his decision to ban those books. Hence, we hold that the power to prohibit publications in The Gambia should first require a court order to prevent abuse of power.
Based on our position on Section 49 above, the following provisions, i.e., Sections 50 to 52, are also, therefore, untenable and should be expunged from the Act. They serve to interfere with the right to privacy of citizens as guaranteed under Section 23 of the Constitution in terms of non-interference with the correspondence or communications of citizens. They also give undue power to the State without any judicial oversight. The tendency for abuse of power, thereby violating rights, is significant under these provisions.
- Sections 50 – Punishments relating to prohibited publications.
This provision makes it a crime to import, publish, sell, distribute, or reproduce in part or whole of a prohibited publication as set out in Section 49.
- Section 51 – Delivery of prohibited publication to the police station or administrative officer
This provision states that a person to whom a prohibited publication is sent and becomes aware that the publication is prohibited but fails to deliver the prohibited publication to the police or an administrative officer commits an offense.
- Section 52 Power to examine packages
The provision empowers the police and postal services to open, examine, and impound any package mentioned under Section 50 and even detain any person importing, posting, distributing, or possessing the package.
- Section 48 – Interpretation
This provision defines ‘import,’ publication,’ and ‘sedition’ in general, as mentioned in sections 49 to 52, which result in seditious intention. The section defines ‘seditious intention’ as an intention that brings hatred, contempt, or disaffection against the person of the President, or unlawful acts to bring about change, or to bring hatred, contempt, or disaffection against the administration of justice or to raise discontent or disaffection between Gambians or “to promote feelings of ill-will and hostility between different classes of the population of The Gambia.”
We find the presence of Section 48 in this Act surprising and utterly concerning, given that the Supreme Court had ruled in May 2018 that sedition is only constitutional when it relates to the President and the administration of justice. Thus, the court struck down provisions regarding sedition that extend to the Government as unconstitutional. This means that criticizing the Government as an institution rather than its officials is not considered seditious. Therefore, we are concerned that sections 49 to 52, which primarily deal with criticism of the Government, remain in this statute.
We therefore advocate for further amendment of the Act to remove sections 48 to 52 altogether. We believe that criticism of the President and the administration of justice should be constitutional rather than sedition since these institutions and the persons holding office in them are not beyond public scrutiny. We consider the whole idea of sedition to be anti-democratic and anti-republican, which raises public officials beyond and above citizens who elected and appointed them in the first place.
- Section 57 – Wrongfully inducing a designated boycott
This section grants the President the power to prohibit a boycott. We consider this provision a threat to fundamental freedoms, democracy, and the fight against corruption. The fact that the President needs no judicial review for his decision further strengthens our concern.
The right to boycott is a fundamental right that citizens use to influence decisions, actions, policies, and practices of Government, businesses, institutions, and other entities. Boycott is a non-violent, peaceful action that forms part of the broader spectrum of freedom of expression, intended to protect human rights, preserve the environment, address unethical and harmful business practices, and combat corruption, among other objectives. Citizens should have the freedom and space to undertake boycott or counter-boycott actions. The President should have no power to prevent or prohibit a boycott in any way.
- Section 152 – False Publication and Broadcasting
This provision states that,
“A person who wilfully, negligently or recklessly, or having no reason to believe that it is true, publishes or broadcasts any information or news, in any medium or form, which is false in any material particular commits an offenceand is liable on conviction to a fine of not less than fifty thousand dalasis and not more than two hundred and fifty thousand dalasis or imprisonment for one year or both.”
This provision is tantamount to criminalizing opinion, infringing upon freedom of expression, and undermining media freedom, as well as academic freedom, as stipulated in Section 25 of the Constitution. Citizens have a right to express their opinions. This includes other citizens as well as the Government and other entities to disagree with that opinion equally.
This provision further runs counter to Section 207 of the Constitution, which guarantees the freedom and Independence of the media and imposes the responsibility on the press to hold the Government accountable on behalf of the people. Furthermore, the Constitution imposes an obligation on public media to carry divergent and dissenting opinions under Section 208. The Constitution, therefore, envisages freedom of the press without any infringement on their editorial Independence. This provision is, thus, anathema to the Constitution, as it gives undue power to the State to determine what publication or broadcast is true or false and fit for publication.
The State must not be the entity to determine which opinion or news is true or false; hence, it should not dictate what is to be expressed, broadcast, or published. That responsibility must be left to the marketplace of ideas. It is through broadcasting or publishing information that citizens hold public institutions accountable, combat corruption, and demand public services.
Where there is false information about a public institution, that institution reserves the right and duty to issue a rejoinder to refute or clarify. If the false information concerns a company or a private citizen, the affected business or person can seek legal redress for defamation, issue a rejoinder, or choose to ignore it.
Governments typically use this provision to suppress voices and opinions, or ideas expressed by journalists, anti-corruption advocates, human rights defenders, political opponents, critics, commentators, academics, and citizens in general, thereby limiting efforts to hold the State accountable. EFSCRJ has documented several cases in which the President and several ministers have separately threatened to or sued journalists and anti-corruption and human rights activists for defamation based on this law. This provision is not in line with democratic norms and does not augur well for good governance.
- Section 107 – Giving false information and parental insult to public officers
This provision states that,
1) A person who gives a public officer an information which he or she knows or believes to be false, intending thereby to cause or knowing it to be likely that he or she will thereby cause such public officer to use the lawful power of such public officer to the injury, prejudice or annoyance of any person commits a misdemeanour.
2) A person who directs parental insult to the President, Vice President, a Minister, a member of the National Assembly, a civil servant or any other public officer in the exercise of his or her functions, shall be held liable on summary conviction to a fine of not less than ten thousand dialysis and not more than fifty thousand dalasis or a term of imprisonment of not less than one month and not more than six month or to both fine and imprisonment.
The Constitution has guaranteed the right of citizens under Section 25(f) to petition the Executive for redress of grievances. Furthermore, Article 125 of the National Assembly Standing Orders grants citizens the right to submit a petition to parliament. Petitions are opinions which, when submitted to either the Executive or the Legislature, should be subject to review to determine their merits. Where a petition lacks merit, it should be discarded without any punishment to the petitioner.
Punishing a petitioner for what is deemed a false petition can potentially silence citizens and allow abuse and impunity to prevail. During the Jammeh Dictatorship, several citizens were sent to court and jail for merely petitioning the Executive as required by the Constitution. Without the ability to petition, citizens may resort to taking the law into their own hands to seek redress. Hence, Section 107(1) of the Act is in direct violation of the Constitution and the National Assembly Standing Orders, as well as a threat to peace.
Furthermore, while insults and foul language, in general, should be shunned and discouraged by all as required by our cultures and religions, to criminalize parental insult only against public officials from among the citizenry is discriminatory. Without a clear definition of what constitutes ‘parental insult,’ this provision is as ambiguous as it is arbitrary. Freedom of expression broadly covers expressions that may be offensive but not unlawful in a democracy.
On the other hand, the provision did not address the situation where public officials insult the parents of citizens, leaving them without recourse. Recent uncouth remarks by both Minister of Information Dr. Ismaila Ceesay, when he sarcastically said, “No one’s father owns this country,” and Ambassador Fatoumatta Jahumpa Ceesay, who derogatively described all UDP NAMs and members as “domi haram,” are a few cases of public officials using foul language against the public.
Thus, the effect of this provision is to shield public officials from genuine criticism while unfairly criminalizing citizens for their opinions and criticism of public officials who are left unchecked for their foul language. We, therefore, hold that this provision is discriminatory and severely infringes on the right to freedom of expression, freedom of the press, and academic freedom, thereby undermining accountability and good governance.
Thus, our position is that Section 107 should be expunged from the Criminal Offences Act as it undermines citizen participation in the building and strengthening of democracy and good governance in the Gambia.
Conclusion
The sovereignty of the Gambia resides in the people of the Gambia, from whom the State and all its organs and agents derive their authority, and in whose name and on whose behalf public institutions and officials perform their functions for the welfare of the citizens. This is the language of Section 1(2) of the Constitution. In this regard, the laws of The Gambia must ensure that the rights and duties of citizens are protected, thereby fostering active citizen participation necessary to ensure good governance and sustainable development.
The Criminal Offences Act is one of the most important laws of the country. Criminal law is essential for a functioning legal system, ensuring justice, maintaining order, and protecting society. Without it, laws would be vague, inconsistent, and open to abuse. For this reason, criminal law must be founded on the pillars of clarity and consistency, constitutionalism, the protection of rights, deterrence, and checks and balances to ensure justice and maintain social order fairly and transparently. The provisions we have highlighted above, with concern, undermine the principles and standards upon which a criminal law should be based, as they compromise justice, human rights, and good governance. We submit these provisions that need to be removed from the Criminal Offences Act 2025.
