Companies and individuals operating Internet cafes are no longer permitted to offer programs like Skype, under a new order by the the Public Utilities Regulatory Authority. The order comes shortly after amendments threatening free speech were introduced to the Gambian criminal code.
ARTICLE 19 condemns new attacks on freedom of expression by the Gambian authorities in a climate where freedom of speech is already severely limited.
Earlier this month, the government introduced amendments to the Criminal Code that allow courts to impose harsh punishments to anyone found guilty of:
- “giving false information to public servants”
- disturbing “the peace by quarrelling or attempting to quarrel or by using any insolent, scurrilous or abusive term of reproach.”
A few days later, the Public Utilities Regulatory Authority (PURA) prohibited companies and individuals operating Internet cafes from offering dating services and Voice over Internet Protocol (VoIP) services.
Amendments to the Criminal Code
16 April 2013: The National Assembly of the Gambia adopted amendments to several provisions of the country’s criminal code, including:
- Section 114 which prohibits the crime of “giving false information to public servants”. The amendment will allow courts to impose a prison sentence of five years or a fine of 50,000 Gambian Dalasis (about USD1,650) for an offence that was previously punishable with up to 6 months imprisonment or 500 Dalasis (about USD17).
- Section 167 which prohibits disturbing “the peace by quarrelling or attempting to quarrel or by using any insolent, scurrilous or abusive term of reproach.” Under this amendment, perpetrators face either a fine of up to 25,000 Dalasis, a five year jail sentence or both.
ARTICLE 19 finds the recent amendments and also the original respective provisions of the Criminal Code problematic. They are vaguely phrased and have the potential to criminalise the legitimate exercise of freedom of expression.
We have previously called for a number of provisions in the Gambian Criminal Code to be reviewed for their lack of compliance with international freedom of expression standards. It is disappointing that the government has chosen instead to introduce even more restrictions to freedom of expression under this problematic legislation.
Our particular opposition to these amendments is as follows:
Section 114
Section 114, the crime of “giving false information to public servants,” prohibits anyone from giving “public servants” information that he/she “believes or knows is false” with intent “to cause or knowing it to be likely that he will thereby cause such public servants a) to do or omit anything which such public servant ought not to do or omit if the true state of facts, respective which such information is given, where known to him or b) to use the lawful power of such public servant to the injury of annoyance of any person.”
ARTICLE 19 points out that under international freedom of expression standards, any restriction to the right to freedom of expression must first of all be provided for by law. This means that the law must be accessible and formulated with sufficient clarity to enable individuals to regulate their conduct. The wording of Section 114 is so vague and convoluted that it is not clear what action is prohibited.
ARTICLE 19 assumes that the crime of “giving false information to public servants” might aim to prevent false charges from being brought against individuals working in law enforcement. However, we note that Section 114 has been used to intimidate journalists and whistle-blowers who reported wrongdoings or arbitrary treatment to public officials and were subsequently charged themselves. For example, in July 2011, Nanama Keita, former sports editor of the Daily Observer, was arrested and charged under section 114 for complaining about his wrongful dismissal and drawing attention to financial malpractice at the newspaper.
We note that there has been a growing recognition in international law of the important contribution of investigative journalists and whistleblowers. Their rooting out of many social problems, such as corruption, mismanagement and poor safety practices, is valuable. We also note that domestic legislation on whistleblowers also typically protects them from civil, criminal or administrative liability if they acted in “good faith.” Section 114 goes against these standards and practices.
Section 167
Under international law, all limitations on the right to freedom of expression laws that fail these criteria cannot meet the three-part test. Restrictions to the right to freedom of expression must be provided by law, in pursuit of a legitimate aim, and necessary for the protection or promotion of that legitimate aim.
International standards for freedom of expression recognize the right of states to limit freedom of expression in the interest of, inter alia, public order or morals. However, these standards protect speech that “shocks, offends or disturbs the state or any sector of the population.”
ARTICLE 19 finds the wording of Section 167, prohibiting “quarrelling” and “scurrilous or abusive songs or words”, equally vague and overly broad. It therefore fails the three-part test. We argue that the interpretation of this wording is likely to be highly subjective.
We also submit that behaviour such as quarrelling in public or singing certain songs does not reach a level at which the extraordinarily intrusive measures provided under criminal law can justifiably be used. The definition extends to forms of behaviour that would warrant – if any – response through administrative sanctions. We question whether the use of the criminal law against those arguing publically would be proportionate.
Given the ambiguity of Section 114 and Section 167, ARTICLE 19 is concerned that the recent amendments will have a chilling effect on the right to freedom of expression in the country.
The PURA order
On 19 April 2013, the PURA prohibited the provision of dating services and Voice over Internet Protocol (VoIP) services by companies and individuals operating through Internet cafes. Offering “International and National Calling Services” within Internet cafes using VoIP services (Viber, Skype, etc) is also strictly prohibited. In addition, the PURA urged the public to report any such activities to them.
The PURA order states that the reason for this decision is to ensure that the country is not deprived of “the much needed revenue from International and National calls, required for the development of The Gambia.”
ARTICLE 19 notes that the PURA order fails to meet the three part test, set by international standards for restriction on freedom of expression. The Human Rights Committee has confirmed that all forms of expression and means of their dissemination are covered by Article 19(2), including “audio-visual, as well as electronic and internet-based modes of expression.”
The fact that the use of VoIP services is being prohibited in order to benefit phone companies is a concern. Unless the government can demonstrate that this prohibition serves the public interest, the prohibition is likely to strengthen state control of the provision of phone services to the detriment of Internet- based services.
This issue also raises concerns in the light of the Gambia’s obligation to promote, as well as protect, the right to freedom of expression. The State has a positive obligation to take measures to facilitate greater access to communications tools. Some of these have been mentioned specifically with regard to their ability to bridge the “digital divide” relating to Internet access – for example by the UN Special Rapporteur on freedom of expression. Measures such as the PURA order arguably go against this desired broadening of access.
ARTICLE 19 therefore calls on the PURA to immediately repeal the 19 April order in its entirety.
