WORLD PRESS FREEDOM DAY 2014

Theme: Reaching New Goals: Free Media fortifies the post-2015

Development Agenda

TOPIC Speaker Rule of Law to Ensure Safety of Journalists and Combating Impunity

Almami Fanding Taal, Esq.

Thank you very much for your kind invitation to speak on this auspicious day, may I say that I am conscious of sitting in the midst of giants as the all speakers here are distinguished by their service and great love for the Gambia. “The rule of law is the foundation for communities of opportunity and equity— it is the predicate for the eradication of poverty, violence,

corruption, pandemics, and other threats to civil society.” -WILLIAM H. NEUKOM, FOUNDER AND CEO, THE WORLD JUSTICE

PROJECT

The Social Contract between the Citizens and the Governments in

Africa is creaking at the seams.

The citizens expect competent and accountable governance and the

Governments want to stay in power indefinitely and would do

anything to restrict and control the flow of official information.

For this reason, oppressive Colonial laws that were made precisely

to repress the citizens have been refurbished and amended to keep

a tight lid on the citizens.

There is little justification, if any, in maintaining archaic laws

restricting the generation and dissemination of information in the

statute books of the nation and use them frequently against Media

Practitioners.

Dissent and open discussions of national issues have transformed

Ghana into an effective and functioning democracy that have had

two competitive and legitimate change of government within the last

two decades

I propose to speak of the rule of law primarily from an African

perspective. In doing so, I recognize that, the idea has elements

common to all societies in which it is asserted, each society has

its own history, culture, legal traditions and demographic

mixture.

There will inevitably be different understandings of the rule of law

and, even when understandings coincide in theory, different

applications of those understandings in practice.

It is useful to begin with a reminder of Dicey's concept of the rule of

law and how that concept has evolved in the United Kingdom.

I refer to the United Kingdom because we as former colonies are the

common inheritors of its legal tradition and it presents the case of a

society in which the rule of law is based upon THE common law.

Parliamentary sovereignty and the rule of law were described by

Professor AV Dicey as two characteristic features of the political

institutions of England since the Norman Conquest.

Parliament inherited the royal supremacy.

The Diceyan vision of the rule of law involved at least three

distinct conceptions'.

They were in summary:

1. no man is punishable or can be lawfully made to suffer in body

or goods except for a distinct breach of law established in the

ordinary legal manner before the ordinary courts of the land.

2. Every man whatever be his rank or condition, is subject to the

ordinary law of the realm and amenable to the jurisdiction of the

ordinary tribunals.

3. the general principles of the constitution (as for example the

right to personal liberty, or the right of public meeting), are with us

the result of judicial decisions determining the rights of private

persons in particular cases brought before the courts.

One of the most helpful ways to think about the future is a better understanding of the past because all societies are path dependent. In this regard history has taught that us once the basic human needs of food clothing and shelter are satisfied, new sets of needs and challenges will arise and will require sophisticated institutional arrangements to satisfactorily resolved. While the Europeanization of the world is a relatively recent phenomenon having started about five centuries ago nonetheless it has been extremely successful in destroying peoples, cultures and civilizations that predated Europe’s own renaissance. I am thinking of the expansion of America into Native American territories. I am thinking of the British Empire in Africa - even into our lifetime - which ignored property laws and human rights as we’re finding out to this day, Zimbabwe is a case in point As Africans the real question for us; is how can we reconcile the rule of law and the rule of property with the accumulation of capital by the European economies in the last five centuries, which completely ignored the property rights of the people they were involved with and even their human rights. At the heart of the expansion of England was a huge hypocrisy, which in some ways John Locke personified - that the property rights were peculiar to white men. It was only gradually that that kind of idea was questioned. An obvious way in which that happened was the recognition that slavery was not legal in English common law.

The famous Mansfield judgement in the late 18th Century fundamentally shattered the legitimacy of slavery as a legal institution, and within a very short space of time the anti-slavery campaign developed unstoppable force. John Locke, of course, was the political philosopher who most articulately defined what property rights signified in his ideal commonwealth and it was Locke who argued that freedom, liberty, was essentially bound up with property rights. The same Locke was of course the man who drew up a constitution for the slave state of Carolina, a constitution which explicitly defined the ways in which slaves would be treated. So I think one has to recognise, in taking an historical approach to these questions, the dynamic character of the discussion on development, human rights and for that matter, property rights are really discussions about freedom and justice for all; Freedom and justice for peoples whose development trajectory was derailed; freedom and justice for peoples who were enslaved colonized and have their resources plundered to make the west prosperous and enjoying a very high quality of life. The end of the World War II was the beginning of the end of empire

and the hegemonic control of the Europeans. And in 1948 the world

received the gift of the Universal Declaration of Human Rights.

Article 19 of that Declaration states that

“Everyone has the right to freedom of opinion and expression; this

right includes freedom to hold opinions without interference and to

seek, receive, and impart information and ideas through any media

regardless of frontiers.”1’

1 UDHR

Free expression is essential to a democratic society. Free expression, distinguishes democratic from non-democratic countries. Self-government requires that citizens have accurate, adequate, and current information about issues facing their society. When ideas can be heard, examined, and questioned, society can develop culturally, economically, and scientifically. Free expression also allows people to vent their anger or frustration with the government and with other problems, which ultimately forestalls violence and promotes peaceful co-existence. It therefore decreases the likelihood that people will turn to violent means to express themselves. Freedom of expression remains one of the most basic rights in a democracy. Here lets us pause and consider the full implications of such a right and what are the consequences if such a right were absolute? I can walk into a crowded room and shout there is fire or a bomb thereby caused mayhem and pandemonium into that room when in fact there was no fire or bomb. What do we do with hate speeches? What about expressions that incite communal animosities, racial and religious tensions? Obviously we cannot have ABSOLUTE rights civilized society and peaceful coexistence will be impossible. And it is for these reasons that we need to have ‘the rule of law and not of men’, because MAN has since the beginning of time manifested a fratricidal impulse and have killed his brother over a woman, property and positions! Then the question arises what exactly do we mean by the rule of law? In his book, the late Lord Chief Justice Bingham of England and Wales, specified seven criteria by which we should assess a legal system:

1. The law must be accessible and so far as possible intelligible, clear and predictable.

2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion.

3. The laws of the land should apply equally to all, save to the extent that objective differences [such as mental incapacity] justify differentiation.

4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers.

5. The law must afford adequate protection of fundamental human rights.

6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; and

7. Adjudicative procedures provided by the state should be fair. My undergraduate study of law in India, a former British colony taught me that the English rule of law was the product of a slow, incremental process of judicial decision-making in the courts, based in large measure on precedents. I now realise that this was a rather naive view. And that the law was taught around the former British Empire in much the same way as it was taught in England without taking into account the local realities, contexts and circumstances.

When I had the opportunity to teach law in the Gambia I have always encouraged my students to look at the law as a tool for social engineering and should take the objectives of the Law Reform Act as their touchstone for learning the law. As one of the greatest theorist of law in the English-speaking world, Ronald Dworkin, explained in Law’s Empire, there really are principles of justice and fairness underpinning the common law, even when those principles are not codified as they are in the United States Constitution. Behind the operation of the law lie two things: the integrity of judges and, to quote Dworkin: “legislation …flowing from the community’s present commitment to a background scheme of political morality.” Few truths are today more universally acknowledged than that the rule of law – particularly in so far as it restrains the grabbing hand of the state – is good for economic growth, as well as just good for journalist children and the disabled.

My research for this presentation has led me to the discovery of the

Rule of Law Index, which is published by a United States based

non-government organisation called the 'World Justice Project'.

The Index measures, by reference to a variety of factors, what is

said to be the state of the rule of law in 99 different countries.

Its most practical benefit is to provide to those who advocate for

improvements in the legal systems of their countries a

credible comparative empirical basis for their advocacy.

The Index rests upon a definition of the rule of law which extends

well into the territory of substantive as well as process rights —

It is a definition with which lawyers and legal historians and

philosophers might disagree, but it sets out, in language, what

are said to be culturally universal principles.

They are really proposed as defining features of the rule of law and,

reframed in that way, comprise:

1. accountability under the law generally applicable to

governments, public officials, individuals, and public and

private entities;

2. clear, publicised, stable and just laws evenly applied which

protect fundamental rights including the security of persons

and property;

3. accessible, fair and efficient processes for the enactment,

administration and enforcement of laws;

4. timely delivery of justice by a sufficient number of competent,

ethical, independent, adequately resourced representatives

and neutrals who reflect the makeup of the communities

they serve.

The breadth of the World Justice Project definition and its language

underpins the proposition that the rule of law is not a refined

concept to be owned by lawyers, legal historians and legal

philosophers alone.

It is a part of societal infrastructure, the content and strength of

which is a matter of legitimate interest to all members of society. It

is also an essential condition of social stability, social justice and of

business, consumer and investor confidence.

Whatever concept of the rule of law applies in any given country, it

must work on the ground. In our development discourses and

effort must place emphasis on the importance of the demonstrable

benefits provided for society and individuals by the rule of law.

There is no use having beautiful laws, embodying the noblest

ideals, only to do something else in practice.

To be sure, media freedom and human rights are explicitly

guaranteed in the 1997 Constitution and the limitation clause

derogating from these guarantees are subject to the standards

contained in international human rights instruments

A paragraph of the preamble of 1997 Constitution states: “This constitution provides for us a fundamental Law, which affirms our commitment to freedom, justice, probity and accountability. It also affirms the principle that all power emanate from the sovereign will of the people”. Therefore the Constitution mandates that the state actively to promote the welfare and development of the people by introducing measures that will guarantee accountability, transparency, integrity and financial probity, which by virtue of their effectiveness will strengthen confidence in public institutions. Conclusion

I wish to conclude by saying that in Africa we have to interrogate

the legacies of institutional designs and arrangements bequeathed

by colonialism, conscious of the fact the imperial project was not

benign. Therefore we need to be critical of ideas of justice and

development emanating from the global north and not reject out

hand

Those important features include the following propositions:

a) all official power derives from rules of law found in the

Constitution or in laws made under the Constitution;

b) there is no such thing as unlimited official power be it

legislative, executive or judicial;

c) the powers conferred by law must be exercised lawfully,

rationally, consistently, fairly and in good faith;

d) the courts have the ultimate responsibility of resolving

disputes about the limits of official power and in so doing they,

like those whose decisions they review, must act lawfully,

rationally, consistently, fairly and in good faith and within the

proper limits of their constitutional function;

e) laws are to be interpreted in accordance with their text,

context and purpose and in accordance with common law and

statutory rules of interpretation;

f) laws are to be construed, where choices are open, so as to

avoid or minimise their impact on fundamental common law

rights and freedoms.

There are different ideas of what the rule of law embodies. There are 'thin' concepts and 'thick' concepts. However, the features of lawfulness, rationality, consistency, fairness and good faith in the exercise of official powers, and the function of judicial review in determining the meaning and constitutionality of laws and the lawfulness of action under those laws, are essential elements of any constitutionally based concept of the rule of law