By Alagi Yorro Jallow
Fatoumatta: Judge Sarjo Barrow has entered the debate, and his argument is precise: regulate the spectrum, not the reporter. This commentary takes that principle further, examining why fragile democracies must never confuse licensing the airwaves with licensing the press, and why the wrong regulatory choices risk repeating the tragedies of history.
The intervention by Judge Sarjo Barrow, Esq., offers a timely and intellectually serious contribution to a debate that has too often been dominated by emotionalism, selective outrage, and performative activism. His central thesis that the state may regulate the airwaves but must not regulate the journalist is grounded in comparative constitutional law and deserves careful engagement. Yet the argument also requires contextualization within The Gambia’s own democratic history, institutional vulnerabilities, and the lived experience of those who have witnessed the consequences of state overreach firsthand.
The Gambia does not approach media regulation as a blank slate. Our media landscape has been shaped by both constitutional promise and authoritarian distortion. We have lived through eras when the state used licensing, registration, and administrative discretion not to protect the public interest but to silence dissent, intimidate journalists, and criminalize truth. Any contemporary regulatory framework must therefore be evaluated not only by what it says on paper, but by what it enables in practice, particularly in a political culture where power has historically been tempted to exceed its boundaries.
Judge Barrow is correct that every democracy regulates broadcasting. The airwaves are a finite public resource, and the state has a legitimate role in ensuring their orderly, equitable, and technically sound use. But the distinction he draws between regulating the platform and regulating the journalist is not merely a legal nuance. It is the constitutional firewall that separates a democracy from a managed society. Once the state acquires the authority to determine who may practise journalism, it acquires the authority to determine who may not. And history, both Gambian and global, teaches us that such power is rarely exercised in the public interest.
Accreditation Is Normal; Registration Is Not.
Fatoumatta: Although the United States does not license journalists, it does not operate in a regulatory vacuum. Accreditation is mandatory across multiple sectors of public life, from the White House Press Corps to Congressional galleries, federal courts, state legislatures, and police‑managed crime scenes, not to control content, but to ensure professional access, identity verification, and institutional order.[1] Accreditation, in this sense, is an administrative gatekeeping mechanism, not a constitutional filter on who may practise journalism. What the U.S. Constitution forbids is the registration or creation of a government‑maintained list of who is permitted to report because such lists have historically been weaponized to silence dissent.[2] The distinction is not semantic; it is structural. Licensing or registering journalists gives the state the very tool that enabled the Rwandan government and its allied broadcasters to turn Radio Télévision Libre des Mille Collines into an instrument of ethnic extermination.[3] In fragile democracies, the lesson is clear: regulate the airwaves, which are a scarce public resource capable of mass harm, but do not regulate the journalist, whose independence is the constitutional safeguard against that harm.
The Strengths and Vulnerabilities of the 2025 Regulations
The Broadcasting and Online Content Regulations, 2025, contain commendable elements. The provisions on election‑period broadcasting, rights of reply, due process, and judicial oversight reflect a genuine attempt to modernize the regulatory environment. Regulations 45 to 50, in particular, are among the most carefully drafted in any comparable African framework, ensuring equitable access, a right of reply, and a 48‑hour pre‑polling response window. Regulation 75 on appeals to the High Court and Regulation 79 on notice‑and‑hearing requirements demonstrate a real commitment to due process.
But the same framework also contains ambiguities that, in the wrong hands, could become instruments of suppression. Regulation 19(7), which allows cancellation of journalist registration based on codes of practice not yet written, is one such example. Undefined obligations are not safeguards; they are vulnerabilities. They invite administrative discretion where constitutional protection is required.
Comparative Lessons: United States and European Union.
The United States model is instructive because it is principled. The First Amendment does not license journalists to presume the state as the custodian of truth; it presumes that state control threatens truth. The FCC licenses stations, not reporters, underscoring that the right to speak is inherent, not granted.
Europe’s model, through the European Media Freedom Act and the Digital Services Act, similarly places obligations on platforms while insulating editorial judgment from state interference. These frameworks define thresholds, obligations, and enforcement mechanisms before implementation. The Gambia’s SPUR framework, by contrast, currently contains no defined threshold. A regulation that cannot tell citizens whether they fall within its scope is not a regulation; it is a net.
Why Precision Matters More Than Scope.
Tackling cyberbullying is a worthy goal. It is destroying lives in The Gambia right now, targeting women, young people, and journalists daily. But cyberbullying laws that are too vague get struck down. Courts across the United States have invalidated such statutes precisely because they failed to define what was prohibited, sweeping protected speech alongside genuine harm.[4] The answer is not to avoid regulation. It is to regulate precisely. Vague language in media law creates specific regulatory risks. It allows future administrations or aggrieved officials to target journalists selectively. For instance, grouping blasphemy with hate speech, requiring broadcasters to ‘verify’ national security content without clear guidance, and prohibiting broadcasts that might ‘tarnish’ reputations without protecting truth—all introduce broad interpretive leeway. Each instance risks arbitrary enforcement, making precise definitions necessary so regulation cannot be weaponized against speech.ion.
The Path Forward.
The Gambia needs a modern regulatory framework, one that protects citizens from cyberbullying, harassment, exploitation, and digital harm. But modernity is not achieved by expanding state power over expression. It is achieved by strengthening institutions, clarifying obligations, defining thresholds, and ensuring that no regulation becomes a backdoor to censorship. The Media Council of The Gambia, as a self‑regulatory body, remains the most appropriate institution for professional oversight. Its mandate should be strengthened, not bypassed.
Judge Barrow’s call for public consultation is not a procedural nicety. It is a democratic necessity. Regulations imposed without public participation lack legitimacy. Regulation crafted with citizens, journalists, platforms, and civil society becomes a shared architecture of accountability.
Fatoumatta: The Gambia stands at a crossroads. We can choose a regulatory path that aligns with constitutionalism, international best practice, and our own hard‑earned democratic lessons. Or we can choose a path that repeats the mistakes of the past under the guise of modernization. The difference will be determined not by the intentions of today’s policymakers, but by the safeguards they build for tomorrow’s. The airwaves belong to the public. The right to speak belongs to the individual.
And the Constitution belongs to all of us. Our task is to ensure that no regulation, however well‑intentioned, blurs those lines.
References.
[1] U.S. Senate Press Gallery Rules; White House Correspondents’ Association Accreditation Guidelines; Federal Judicial Center, “Media Access to Federal Courts.”
[2] Near v. Minnesota, 283 U.S. 697 (1931); Lovell v. Griffin, 303 U.S. 444 (1938).
[3] Des Forges, A. (1999). Leave None to Tell the Story: Genocide in Rwanda; ICTR Trial Chamber Judgments on Media Responsibility.
[4] See, e.g., People v. Marquan M., 24 N.Y.3d 1 (2014) (striking down cyberbullying statute for vagueness).