Cyber Crime Bill Will Crush Online Dissent Warns Article 19

Article 19 and Gambia Press Union at CyberCrime Bill Press Conference (c) Yusef Taylor

By Yusef Taylor and Edward Francis Dalliah

International Freedom of Expression Institute, Article 19, flew into The Gambia last week to meet stakeholders and warn about the dangers of the Cyber Crime Bill currently in Parliament. According to the legal analysis published by Article 19 on the Cyber Crime Bill 2023, they are “deeply concerned that the Bill will serve to effectively crush the exercise of online freedom of expression and dissent in the country”.

Speaking to the media on Thursday 13th June 2024, Article 19 Regional Director Alfred Bulakali and Senior Programme Officer Ms Janet Gbam sat next to the Gambia Press Union (GPU) Vice President Ms Isatou Keita as the joint declaration was issued at the GPU Office in Fajara.

The organisation highlighted that they have been working with various stakeholders in The Gambia over the past 15 years, especially the GPU. The two institutions issued a joint statement which touched on some thorny issues such as the arrest of human rights advocates, media practitioners and members of the opposition.

Read out by Article 19’s Ms Janet Gbam, she noted that their organisation recently met with a wide range of stakeholders in The Gambia including State Actors, Decision Makers, Civil Society Organisations and Media Representatives to express concerns over the Draft Cyber Crime Bill and to win their support. They argue that the Cyber Crime Bill in its current form does not align with international human rights standards to protect the freedoms essential in a democratic society.

The duo advised that “any measure taken to combat Cyber Crime should be balanced with the protection of individual human rights and freedoms”. They placed “emphasis on the need to uphold the security of journalists by refraining from criminalising opinions in the press and online and intimidating critical media in the country as well as accelerating legal reforms guaranteeing press freedom”.

The two institutions raise concerns that the Bill “contains some problematic issues that if adopted in its current state will threaten legitimate forms of expression and online dissent”. In addition, they expressed concern “on the situation of journalists, human rights defenders and activists in the country”.

Arrests of Five Critical Voices

Citing some of the Executive’s excesses they “express [their] worries on the situation of journalists, Human Rights Defenders and activists in the country. In some instances, we’ve seen the authorities cracking down [on] journalists and Human Rights Defenders on the basis of their critics and comments over the management of public affairs in general”.

To avoid aggravating the situation they urge the authorities to revise all the “restrictive provisions against Freedom of expression and media in the cybercrime bill, acceleration of legal reforms and standards of civic space in the Gambia”.

The human rights violations unearthed in the Truth, Reconciliation and Reparations Commission (TRRC) were also highlighted in the joint statement. They recall the killing of journalists, forced exile and disappearances, arrests and torture which they believe should have been a relic of the past after President Adama Barrow defeated former President Jammeh in the December 2016 elections.

The joint statement notes that the TRRC calls for a review of the media laws and replacing the constitution however, the constitution was rejected in 2020 and the media laws have not been reformed.

Although progress has been made since 2017 the duo raised particular concern on a “discernible pattern of authorities curtailing free speech, stifling political dissent, and narrowing the civic space within the country,” based on five instances of arrests of media practitioners, human rights advocates and opposition merely for expressing opinions online or through traditional media.

Some of the instances mentioned include the statements of President Adama Barrow “expressing hostility toward media freedom” and the subsequent re-arrests of critical voices.

Before the President’s statement some of his perceived critics such as comedian Alhagie Bora Sisawo was arrested in August 2023 and journalist Bakary Mankajang was arrested in September 2023. The following month, then members of the opposition, United Democratic Party (UDP) Momodou Sabally and Bayo Sonko were arrested in September 2023. Momodou Sabally has since joined the President's National People's Party (NPP) and is now a government advisor.

President Adama Barrow’s statement that his government “will put an end to the practice of insulting others. Even if individuals are released on bail by a judge, we will re-arrest them” drew condemnation from The Gambia Bar Association and the National Human Rights Commission.

The President’s statement was issued in early October, just days later, human rights defender Madi Jobarteh was arrested for comments made online. In this regard, the joint statement highlights that “the draft Bill’s numerous provisions punishing various forms of speech and criticism of officials online is alarming. We believe that it is vital that The Gambia’s efforts to address cybercrime are consistent with its obligations to protect and promote freedom of expression under international law, and that countering cybercrime is not used as an excuse to repress dissent”.

Government Pursuing Parallel Process with UN

Questioning the need for the Bill in the first place, the joint statement highlights another parallel process that The Gambia is involved. “At the international level, discussions are ongoing, including within the UN, about an international convention on cybercrime. We recall that The Gambia is an active and participating member in these discussions, it raises questions about the necessity of drafting its own bill at this juncture”.

In their view, the Cyber Crime Bill has “the potential for abuse” combined with the “tendency to perpetuate existing rights violations seen in cybercrime laws worldwide”. In their assessment, the Cyber Crime Bill has failed to abide by “even the minimal standards outlined in the UN draft convention and the AU principles on Access to information and Freedom of expression, AU Convention on Cyber Security and Personal Data Protection as well as the draft  AU Continental AI strategy”.

“As a group, we further acknowledge Aspirations 2, 3 and 4 of the African Union (AU) Agenda 2063 which envision African integration, good governance, democracy, human rights, justice and the rule of law, and a peaceful and secure Africa” noted the duo.

Below are the main concerns and recommendations in the joint statement on the Cyber Crime Bill.

Main Concerns on the Cyber Crime Bill

The joint statement highlights some of the concerns raised during the engagement with stakeholders showing “several key issues that render the bill problematic for freedom of expression, freedom of media”:

1. The Bill would make an alarming scope of online speech a crime under the guise of combating ‘cybercrime’. The majority of proposed offences have nothing to do with cybercrime, apart from having the word ‘cyber’ or ‘computer’ attached.

2. The Bill would make media organisations, civil society, and their senior leadership individually criminally liable for stories and investigations. Under the Bill, senior leadership of corporate entities would be individually criminally liable for the actions of entities, and they would have the burden to prove that they actively conducted ‘due diligence’ of published content.

3.       The publication of evidence or data in the public interest could be criminalised. Computer crime offences are so broadly worded that they make any ‘unauthorised act’ in relation to a computer or ‘data’ a crime.

4.       The Bill would create significant police and surveillance powers that in some cases are subject to no judicial or similar independent oversight.

5. The Bill would criminalise digital security and legitimate academic or security research. Other police powers include the ability to force service providers to compel the decryption of content, as well as hold the mere possession of digital security tools, without intent to commit any crime, a criminal offence in itself.

Recommendations to Improve the Bill

Article 19 and GPU recommends that the Cyber Crime Bill be amended as follows;

1.       The inclusion of a reference to The Gambia’s obligations under international human rights law to protect and promote freedom of expression, as well as an affirmation that no provision of the Bill will be used to stifle the activities of journalists, human rights defenders, or dissidents.

2.       The striking off of Article 16(2)(vii), which allows compelled decryption and undermines a necessary tool for the realisation of the right to freedom of expression by journalists, human rights defenders, and the public at large.

3.       Provision for a mandatory independent review of any preservation or production orders issued by law enforcement, the elimination of the automatic gag order for recipients, and provision for the opportunity to judicially challenge the validity of such an order.

4.       The inclusion of clear requirements of ‘serious harm’ before criminal liability and definition of key terms, such as what it means to ‘expeditiously’ or ‘sufficiently’ comply with orders, in order to provide legal certainty.

5.       The striking off of articles dealing with offences that are not cyber-dependent offences. And absolutely have no place in cybercrime legislation and uniformly constitutes restrictions on freedom of expression by criminalising valid criticism of public officials.

6.       The striking off of articles that explicitly eliminate the requirement for specific intent to impact computer systems or data. Instead, the Bill must make it clear that every cyber-dependent offence requires specific, dishonest intent.

7.       On the issues of arrest and prosecution of journalists and Human Rights defenders, and the necessity to safeguard civic space, we strongly recommend The Gambian Authorities:

a.       Uphold the fundamental right to freedom of expression and press guaranteed by international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. As well as the African Charter and its associated protocols and declarations.