The Tambourine Army Vs The State ?!: All eyes on this CyberCrime Case in Jamaica

Today Wednesday March 22nd,  Latoya Nugent, human rights activist and co-founder of the Tambourine Army will face her accusers in court and hear the argument for her being charged under Jamaica’s Cybercrime Act for “use of a computer for malicious communication.”

Nugent was charged with three counts of using a computer for malicious communication under section 9 (1) of the Cybercrimes Act of 2015. She allegedly published information on social media maligning several individuals as sexual predators. While in police custody, Nugent was reportedly rushed to the Kingston Public Hospital (KPH) in a state of shock.

What fuels the Tambourine Army

Scenes from the Tambourine Army march held on March 11, 2017

These two facts are what fuels this Jamaican-born Tambourine Army.

“The Caribbean has among the highest rates of sexual assault in the world: according to United Nations statistics from 2015, one in three women have experienced sexual or physical violence at least once in their lives. And it is estimated that 14-38% of women have experienced intimate partner violence at least once.”

“Current national legislation in Jamaica fails to address the complexities and realities of sexual violence against women and children. For example, the Sexual Offences Act narrowly defines rape as ‘non-consensual penile penetration of a woman’s vagina by a man’. Rape and abuse are also massively underreported in the country because of a culture of victim-shaming and stigma.” – Globalvoices.org

After Nugent’s arrest and bail last week, the debate that raged…was everywhere..on radio, in the newspapers and online.

 

The lawyers

Commenting on the case for the Jamaica Gleaner, human rights lawyer Tenesha Myrie wrote: “The use of the Cybercrimes Act, in particular, Section 9, which makes it an offence to use a computer for malicious communication, appears to be an attempt to criminalise defamation through the back door.”

Human Rights and the Tambourine Army article was written by lawyer. Lord Anthony Gifford: “Making threats through social media is a criminal offence, and justifiably so, but simply making accusations is not. In interpreting the meaning of the new act, the courts must ensure that the right to freedom of expression is upheld. Our Charter of Fundamental Rights and Freedoms guarantees freedom of expression, ” save only as may be demonstrably justified in a free and democratic society. More Here

Glenroy Murray: In a Facebook post he said, “Please note that Criminal Defamation was formally removed from our jurisdiction in 2013. Many legal practitioners agree that defamation is rightly a civil matter. It goes beyond #StandingWithStella but Stella’s case highlights the issue. Also, please note the Cybercrimes Act doesn’t address criminal defamation but potentially criminalizes defamation using certain technology. If I called a man a rapist on a stage publicly, then it wouldn’t be a cybercrime and there would be no charge.”

Then Columnists + Writers

At Globalvoices.org: They covered the issue here:  With Tambourines in Hand and Led by Survivors, a Powerful Movement Against Sexual Violence in Jamaica Rises

Lorenzo Smith in the Jamaica Gleaner: Tambourine Army and radical advocacy – are we ready for it?  The #TambourineArmy is forcing us to challenge our idiosyncrasies. Radicalism is not pleasant; it will step on many toes. It will shake us at our core. It’s not for the faint of heart, and, yes, the conservatives will oppose.

Kei Miller: Why I Would Have Shaken A Tambourine :“I have not agreed with every utterance from the Tambourine Warriors. […] The binaries they sometimes insist on seem overly strict to me – ‘you either hold to this particular position, or you’re not with us!’ Still, I haven’t felt the need to voice any of these objections. This is not a critical/academic discourse. This is rage. Let it be. Let it do what only it can do. Let it offend and disrupt and dismantle what only it can. If I had been in Jamaica I would have marched and shaken a tambourine in solidarity. To everything there is a season – a time for the silence of men, and a time for the tambourines of women.”

Germaine Bryan: ” also wrote about the “brewing revolution” on his blog: “If the women behind this Tambourine Army believe they have exhausted all avenues of ‘proper’ ways to advocate that they taught us in their schools, then I say do what you must to maintain the fight. If you must shout, then shout; if you must march, then march; if you are attacked with force, fight back with force; but please don’t give up the fight.”

The Jamaican Media Association Then Took a Stance

“Dionne Jackson Miller, President of the Press Association of Jamaica: Making arrests for what are essentially matters for the civil courts places Jamaica on a steep, slippery slope where freedom of expression is at risk. We do not believe this was the intention of the legislature.” See More

Then I warned my followers on Instagram and Facebook to become aware and get active.

I said ” Yep…You Are Guilty! If you are a blogger…podcaster…digital creative…tech entrepreneur, public figure or just a regular Jamaican Internet user… Go now to japarliament.com.jm and download the 35 page Cybercrimes Act of 2015. Read….section 9..17..22 in particular. When you’ve calmed down from the many WTF moments…here are my two suggestions.
1. Write down the top 5 things you have questions about and want to see changed.
2. Then get ready to become involved when the Act comes up for review next year .
Don’t know how to get involved in the review and change process? Well! You my friend are guilty of being part of the problem, that made this ish get passed in the first place. ( I too am guilty)
So the way forward now..is to be ready to be part of the change…only if the you would like to live and do business online happily and successfully.”

Then Came an Offering of Clarity

In a Jamaica Gleaner submission: Hon. Julian J. Robinson – Clarity on Cybercrimes Legislation wrote:
” After the Joint Select Committee (of which I was chairman) report to review the legislation, further amendments were made to Section 9 (1) to address concerns raised about the wording of the clause and the view that it was too broad and subject to varied interpretations.

The wording “or is reckless as to whether the sending of the data causes annoyance, inconvenience, distress, or anxiety to that person or any other person” was deleted from the clause.

It is important to note that Section 9 – (1)(a) and (1)(b) is conjunctive and must be read together. Hence, for an offence to be committed, the data sent must be obscene, constitute a threat, or is menacing in nature AND (my emphasis) with the intention to harass any person or cause harm, or the apprehension of harm, to any person or property. Read More Here.

So while the debate rages on as to whether or not Latoya Nugent is innocent and whether the Cybercrimes Act is the law under which she can/should really be charged, her case has amplified the conversation on whether the Cybercrimes Act is too vague and gives way too much power for potential abuse.

Latoya Nugent strikes a powerful pose at the recent Tambourine Army held in Jamaica on March 11, 2017

With that in mind, having read so many articles and online discussions, for me, I wanted to go back to the fundamentals – how did this Act come into being in the first place, what was the process and who was part of that process. And as the law comes up for review in 2018, can it be changed and how.

But I didn’t see this coming.

She Said: He Said: A strong challenge to and questioning of the process that created the Cybercrimes law in the first place, a mini debate ensued on my Instagram page

Dr Stacey-Ann Wilson

She Said: “It isn’t that people didn’t participate, it is that only certain people were “invited” to participate even though it’s supposed to be a public consultation. In any case, among those that did participate uninvited, were experts on such legislation from the Jamaican diaspora, who pointed out the vagueness in the law and the potential to criminalize normal behaviors. Very detailed critique/feedback was provided in writing and verbally but they were largely ignored in favour of what the police force (and to some extent the DPP) were recommending. Similar laws have been based on other parts of the Caribbean with much the same issues. Dr Stacey-Ann Wilson who was chief advisor the former Minister of Technology Julian Robinson, who headed the committee and help lead the process in the development of this CyberCrimes Act.

Hon. Julian J. Robinson

He Said: “Stacey I feel compelled to respond to this. First of all they were no selective invitations – two public advertisements were made in the local newspapers inviting persons to make comments and many did. Additionally any committee of Parliament is open to the public and a number of persons contributed. Secondly I know you are referring to Tyrone’s contribution. It is incorrect to say that the recommendations were ignored.

In fact if you look at the final wording which was approved it is vastly different to what was initially proposed and some wording was removed to reduce the vagueness and subjectivity. I accept that more work needs to be done to make the language more specific so that there is no ambiguity about what is a criminal offense. And specifically to the assertion that the recommendations favored the Police and DPP. You will recall that the Committee specifically REJECTED the recommendations from the police and the DPP that libel be criminalized. We made it very clear that the proposed legislation in section 9 didn’t refer to libel. I am anxious to see the outcome of this specific case as I am clear that simply naming someone doesn’t constitute a criminal offense. My final comment is an acceptance that more works needs to be done on section 9 but I feel strongly that there is accuracy is reporting of the process.” Hon. Julian Robinson said.

He added that ” I have a view about what took place here which is not really an issue of the Act itself but I accept that it needs more specific definition. I also believe there is a need for clear guidelines for the police and prosecutors because I I’ll repeat that Section 9 doesn’t contemplate criminalizing libel.”

I then questioned government’s process of consultation and communications with relevant stakeholders and that it seemed to be severely flawed and should be addressed, to which Mr Robinson responded.

“To reinforce the point about newspaper advt vs digital – the person who made the most substantial comments doesn’t live in Jamaica and would not have seen the advt in a newspaper but online and he made a number of comments. Said Robinson.

But, Dr Stacey-Ann Wilson was having none of it. She added.

She said: “The process included stakeholder groups that disproportionately represented the security forces, the prosecutor and the telcos. Citizen and human rights groups were not part of the process as they have been in other jurisdictions. And I don’t recall them being invited into the process. Yes, the consultations were open, in theory, but in a very practical way they were not because it was not common knowledge. I believe even the ICT advisory council, which was made up of IT professionals of varying sectors, objected to parts of the Act. This is to say that the objections now being articulated were articulated already, they are known objections. Unfortunately, other Caribbean jurisdictions have passed or in the process of passing similar bills with similarly objectionable clauses. While the JA Committee Julian speaks of may have rejected a specific request by the police/DPP, the Act as is gives them latitude to do more than they should. ” Dr Wilson said.

He said: “I recall Tyrone’s objections – which I know influenced the changing of the wording of Section 9 in the final analysis. This entire process of amending this Act took almost 2 years – after the Joint Select Ctee concluded there were still opportunities to make amendments and that was done. I will get info on all the entities that we wrote to and invited to make submissions. Only about 10 responded. We invited specifically the Jamaica civil society coalition which represents an umbrella of civil society groups – they didn’t respond.”

I left that debate for others to read on my Instagram page. Then I went on to read the following.

Latoya Nugent declares her innocence and contemplates a constitutional challenge.

In a press release from the Tambourine Army, it said that “Latoya Nugent, co-founder of the rights movement Tambourine Army, says she is currently contemplating a constitutional challenge of the provision of the Cybercrimes Act” under which she was arrested and charged last week.  And just for the record, The #TambourineArmy describes itself, as  a radical social justice movement committed to uprooting the scourge of sexual violence & safeguarding the rights of women & girls.

The Tambourine Army Remains Defiant and Focused in the Face of Adversity.

 We’ll Shake Tambourines Even Louder!

The arrest of Tambourine Army co-founder Latoya Nugent speaks volumes. It says, how dare you host such a march? How dare you decide to speak? How dare you seek change when change isn’t needed. You should be raped, violated and abused, for rape culture has no end!

It is not being said in those words, of course. But the arrest of Latoya Nugent, who has been charged with the use of a computer for malicious communication under the Cyber Crime Act, after naming an alleged sex offender, is telling me just that!

I am told to be silent, for my voice has no power or place in this country. Because if I do speak out, or fight to protect my person, the State will be coming for me.

But I have news for our justice system and those who seek to silence us: THE WORLD IS WATCHING! We will not be silenced. We will continue to fight and hold our tambourines high! #TambourineArmy More here

Co-founders of the Tambourine Army, form a healing circle with survivors during the March that was held on March 11, 2017. It had 700 women and men attending the protest.

Caribbean Community Stands with the Tambourine Army

From Trinidad and Guyana and other Cairbbean countries, letters, tweets, blog posts continue to pour in. “The #TambourineArmy does not stand alone. Latoya Nugent does not stand alone. Touch one, touch all – not only all in Jamaica but all in the region and in the regional diaspora. Touch one, touch all! ” The Facebook page of the Tambourine Army shared a Solidarity Letter “from our sisters and gender justice advocates” in Guyana. Read the full letter here:

Follow the Court Happenings and Discussion about this Movement and CyberCrimes Case.

As we wait to hear what happens in Court today Wednesday March 22, You can follow the the full reach of this movement and this case using the following hashtags:

#TambourineArmy  #NahMekDemWin  #StandingWithStella  #LifeinLeggings #SayTheirNames

I will end this pretty extensive blog post, with this: As a Jamaican woman, a  blogger and digital media entrepreneur this case is of particular interest to me and I will be watching the developments closely with my tambourine in hand.