By Mathew K. Jallow, Associate Editor

 Equal Treatment Under The Law

As the trial of Fatou Jaw-Manneh begins, it is necessary to remind every actor on the government side that their duty is to the law; to uphold it and to preserve it. Any effort to skirt it would result to a loss of confidence in our judicial system, which could take years if not decades to recover from. Both sitting Magistrate Buba Jawo and Chief Prosecutor Emmanuel Fagbenle must at all times be guided by our written laws, not by government coercion or arbitrary or emotional sentiments. The law is deliberately clear and straight forward as written so as to avoid misinterpretation, wrong legal conclusion and therefore wrong legal decision. It is worth noting that the first mistaken interpretation of the law has already occurred with the decision to hold an “in camera” court proceeding. Opening court proceedings to public observation and scrutiny is an unwritten legal requirement that helps to build confidence in the judicial system in the eyes of the public. The ruling made by Magistrate Jawo therefore was not based on law; rather, it is my estimation that it could have been an order coming from above. But no one, not even Yahya Jammeh should dictate what happens in the courtroom. According to the law, “in camera,” which simply means “in secret,” court hearings are obviated only when there is a compelling need to protect and preserve state secrets and state security. In other words, when there are risks to “severe and tangible damage to state security,” the state can invocate “the states secret privileges” enabling the court to decide whether to litigate a case in camera, and away from public view. In the event this is the case, the court must examine the documents presented by the state to determine whether the documents do indeed contain state secrets, which in the event of public revelation could do severe injury to our national security. This affects some classified state documents the disclosure of which could compromise our national security. In Fatou Jaw-Manneh’s case what are the secrets to be protected? There is nothing whatsoever to be compromised; not the content of the interview for which Fatou was arrested and detained and not the manner of her apprehension. The only document presented by the state is one that is available to the public on the World Wide Web; and it has nothing to do with state secrets. Because of that, there is absolutely no legal reason to shut the public and the media out. In a landmark case, United States of America V Progressive, Inc., Erwin Knoll, Samuel Day, Jr. and Howard Morland, 1979, that court granted the government temporary injunction to prevent the Progressive from publishing state secrets revealing the secrets of the hydrogen bomb. There was a legitimate state secret in this case. However, in Fatou’s case, there are no state secrets to be revealed, consequently, there should be an open court proceeding. In another U.S. Supreme Court case, Press-Enterprise V Superior Court. 1984, the Supreme Court ruled against its own Superior Court denying “in camera” proceeding after examining and determining that there was no legitimate state secret to be protected. The Supreme Court went further in its ruling addressing the issue of open court “so people will have confidence that the standards of fairness were being observed.” The confidence of the public in the court is based on media representation. If the media and the public are shut out, it will undermine confidence in the court and the entire judicial system. Already, Gambians have lost confidence in the entire system of justice; the police, national security agencies, the courts, the justice department and the judiciary, because justice is now bought and sold, some judges and magistrates are corrupt to the core of their bones, and the entire system reeks of injustice and incompetence. Even Yahya Jammeh himself admitted that just two weeks ago when he lambasted the judiciary in no unclear terms.

With regard to the question of proving sedition, it is first important to understand what sedition is and what it is not. The definition of sedition is the crime of advocacy of insurrection against the government or support for an enemy of the nation during time of war, by speeches, publications and organization. Sedition actually involves conspiring to disrupt the legal operation of the government beyond expression of an opinion or protesting government policy. For Fatou to be found guilty, the court must prove:  that she advocated public insurrection against the state in the said publication; that she knowingly and willing did so; that she by publication, speech, or direct organization worked to support an enemy or enemies of the state; that she actually conspired to disrupt the legal operation of the government beyond the expression of opinion and protesting of policy.

It is important to understand that many countries are striking sedition from their laws because it is fundamentally a suppression of constitutional freedom of speech. In Nigeria, the Court of Appeal declared sedition law unconstitutional several years ago. In a case The State Vs The Ivory Trumpet Publishing Co. Ltd (1984), the Nigerian court relied on a California case Whitney Vs California 274 US 357 to articulate, “ that public discussion is a political duty. The court recognized further that public order cannot be secured only through the fear of punishment, and that it is hazardous to discourage thought, hope and imagination. Further the court made clear that fear breeds repression, and repression breed’s hatred and that hate menaces stable government. Finally, the court intimated that the path to safety and security lies in the opportunity to discuss freely supposed grievances and propose remedies. Our Constitution permits us the power of reason through public discussion, and as in The U.S. and Nigeria, the Constitution abhors silence coerced by law as the worst form of tyranny. The significance of this is that media silence imposed by the fear of repercussion by the presence of sedition laws is a form of political repression. Any law that restricts the freedom of expression is not necessarily justifiable in any democratic society. The court opined, “any construction of sedition law must be weighed against the background of a profound national commitment to the principle that debate on public issues should not be inhibited, and should be robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasant sharp attacks on government and public officials. This is how democratic societies operate, and this is how our laws must also be interpreted. You never go wrong following the law to the letter, but anything less than that is a failure to implement our laws and therefore a recipe for disorder and anarchy. Finally, in my mind, the government of Yahya Jammeh has lost its legitimacy to govern in spite of the recent elections in which only a third of the eligible voters cast their votes. Any government that uses political repression to govern as Jammeh’s regime does will forfeit its legitimacy as a government of the people. This is where Jammeh’s government is, and I echo Ms. Fatou Jaw-Manneh’s call for Yahya Jammeh to pack up and leave. Jammeh has overstayed his welcome, and we need to begin rebuilding our shattered country again, sooner rather than later. Until then, my advice to Magistrate Buba Jawo and Prosecutor Emmanuel Fagbenle is to follow the law, and nothing but the law.