Researching Gambian Legal Information

Flora Ogbuitepu obtained an LL.B. (Hons) from Kogi State University Anyigba, Nigeria, a B.L from the Nigerian Law School (Lagos Campus) and an LL.M. in human rights from the University of Pretoria, South Africa. She has a wealth of experience in the theory and practice of data protection law, information technology law, human rights law, corporate practice and other areas of law. As a researcher, she has also written numerous papers on human rights issues and legal audit, which have been published. She worked as a Senior Associate at Tope Adebayo LLP, a firm of Legal Practitioners and Arbitrators. At present, she works as a legal practitioner and consults for Maybeach Technology Limited and a variety of businesses and individuals in corporate law and other areas of law.

1. Introduction

The Gambia, formerly known as the Republic of Gambia, is officially known as the Islamic Republic of Gambia. The Gambia, popularly known as Gambia, is located in West Africa and is the smallest country in mainland Africa. Gambia’s borders mirror the twisty Gambia River, which flows through the country’s center and empties itself in the Atlantic Ocean. Gambia has an area of 11,295 square kilometers and a population of 1.88 million from the most recent census in 2013. However, according to the projections of United Nations data, the current population of Gambia in 2020 is estimated to be 2,442,561 million. The population density of the Gambia is 176.1 inhabitants per square kilometers. It is divided into five regions, namely Lower River (Mansa Konko), Central River (Janjanbureh), North Bank (Kerewan), Upper River (Basse Santa Su), and Western (Brikama). These regions are subdivided into 48 districts. The capital, Banjul, is accompanied by Gambia’s two largest cities, Serekunda and Brikama. The official language of Gambia was English until March 2014, when the President announced that English would be dropped as the country’s official language without proffering an alternative language from its reservoir of local languages. Other languages spoken in Gambia include Mandinka, Wolof, Fula, and other native dialects.

The majority of the Gambia’s ethnic population falls into eight indigenous tribes: Mandinka (approximately 41%), Wolof (15%), Fula (19%), Jola (10%), Serahuli (8%), Serer (2.5%), Manjago (1.7%), and Aku (0.8%). A third of its population lives below the international poverty line of USD 1.25 per day. About 94% 0f the overall population are Muslim, and about an estimated 8% are Christian, while less than 2% practice traditional African religions. The nation’s currency is the Gambian dalasi. In October 2013, the Gambia renounced its membership in the Commonwealth of Nations, stating neo-colonialism as its reason for the denouncement. On January 22, 2018, under President Adama Barrow, Gambia formally presented its application to rejoin the Commonwealth of Nations and on February 8, 2018 officially rejoined the Commonwealth. Gambia’s economy is reliant on tourism and agriculture. In 2018 the Gambia’s GDP growth accelerated to 6.6%, driven by a recovery in agriculture, tourism, construction, and trade. In 2019, the GDP growth fell to an estimated 5.4% due to weak fiscal management and delays in budget support disbursements. The GDP is projected by the World Bank to decline in 2020 due to austere socioeconomic consequences arising from the global impact of the COVID-19 pandemic.

2. Historical Notes

The first Europeans who arrived on the Gambia River were the Portuguese in 1455; however, they were driven out by livid local dwellers. The Portuguese returned in 1456 and luckily traveled 20 miles upriver to a place called James Island. The Portuguese dominated trade along the West African Coast in the sixteenth century, which has led to the tales that the name Gambia River originated from the Portuguese word cambio meaning exchange or trade. Subsequently, other Europeans voyaged to the Gambia River for trade as a result of the accomplishments recorded by the Portuguese. Thus, the Gambia River changed ownership from the Portuguese to the Dutch and then to the British. The first Europeans to finally settle in Gambia were the Baltic Germans in 1651, later overthrown by the British, who were constantly under threat from pirates, African Kings, and the French. The Gambia was vested in the British Crown for eighteen years and was part of the British Colony of Senegambia, with its headquarters in St. Louis at the chop of the river Senegal. In 1783, the larger part of Senegambia region was given to France, while the part known as Gambia was given to the African Company.

After the abolition of slave trade, the British assumed the role of world police and entered into an agreement with the Chief of Kombo in 1816 for the cessation of the detached land known as St Mary’s Island in order to gain access to a position where it could examine the entry and exit of ships with a view to halting the slave trade. The Gambia River became a British protectorate in 1820, but the British controlled Gambia from its administrative office in Sierra Leone. Gambia became a crown colony in 1886 and a year later both Britain and France sketched the boundaries between Senegal and Gambia. After the Second World War, Gambia’s desire to be freed from the shackles of colonialism intensified and on February 18, 1965, Gambia gained political independence from Britain and became a Republic on April 24, 1970 after a majority-agreed referendum.

Since its independence, the Gambia has had two leaders. President Dawada Kairaba Jawara (1970-1994) was reelected five times. The Jawara Government experienced instability from an unsuccessful coup d’ etat in 1981 led by Kukoi Samba Sanyang. The Gambia enlisted the help of Senegal and defeated the rebels, and afterwards a Treaty of Confederation was entered into by the Gambia and Senegal in 1982. During the period of the treaty, the Gambia experienced peace and zero threat from rebel forces to unseat the President. In 1989, the Gambia withdrew from the Treaty of Confederation. In 1994, Yahya A.J.J Jammeh (1994 till date) took over power from President Jawara in a military coup. He banned opposition political activities and ruled as the head of the Armed Forces Provisional Council from 1994 to 1996. In 1996, Yahya Jammeh announced the transitioning of the military government to a democratic government by the conduct of national elections.

Subsequently, presidential and parliamentary elections were held after a constitutional referendum and Jammeh was sworn into office as the President of the Gambia on November 6, 1996. Jammeh has won the 2001, 2006, and 2011 presidential elections. The Jammeh administration has experienced political instability with several coup attempts. Jammeh has, on some occasions, accused the United States and the United Kingdom as powers behind the attempted coups. In 2013, there was an alleged coup which led to a bloodbath involving several members of the military ordered by President Jammeh. In December 2014, another coup was attempted by the ex-Presidential Guard Lieutenant Colonel Lamin Sanneh, Njaga Jagne (both US citizens) and a few others. They were arrested by the U.S Federal Bureau of Investigation and later pleaded guilty to the violation of the Neutrality Act of 1794. In the aftermath of the coup, Jammeh reshuffled his cabinet. In the presidential elections of December 1, 2016, the Independent Electoral Commission declared Adama Barrow president. After losing the 2016 elections, Jammeh initially accepted the results and congratulated Barrow. Subsequently, Jammeh declared the results void, and his action sparked a political crisis which led to the ECOWAS coalition invasion. On January 20, 2017, Jammeh eventually agreed to step down and on January 21, 2017 Jammeh, left for exile in Equatorial Guinea. In December 2019, in preparation for his second term ambition in the 2021 elections, Barrow formed a new political party—the National People’s Party. The Barrow administration experienced a wave of tension in January 2020 when protestors took to the streets under the group “Three Years Jotna (is up) Movement.” The protest was a reaction to the broken promise of Barrow to stay in power for three years and relinquish power on January 19, 2020. In response to the weeks of protests, the Gambian government banned the group for being a subversive, illegal, and violent movement determined to overthrow the constitutionally elected President.

3. The Gambian Legal System

The Gambian legal system, like most West African Countries, is a tripartite system consisting of the English common law principles of equity and statute law, customary law which is applied by Tribunals, and Sharia law administered by a Cadi Court system. Customary law and Sharia law apply to indigenous Gambians and/or Muslims. The Gambia accepts, with reservations, the International Criminal Court of Justice’s compulsory jurisdiction and includes subsidiary legislative instruments enacted locally. In November 2016, the Gambia submitted its notification of withdrawal of its membership from the International Criminal Court of Justice. However, the notification was withdrawn in February 2017 before it became effective.

4. Sources of Gambian Law

The major sources of the Gambian law are the Constitution, legislation, judicial precedents, decrees, English law, customary law, and Sharia law.

4.1. The Constitution

The Gambia can be said to have had only two constitutions since independence to date. The First Republican Constitution marked a change of the Gambian system from a Westminster system to a fully republican status. The Westminster system of government, which was predicated on the Office of the Governor General (a representative of her majesty the Queen) as the head of state, was seen as an obstacle to the full realization of the governing powers of the prime minister. Thus, the Gambian political leadership agitated for a presidential executive system of government, this brought to life the first republican constitution that came into force in 1970 when Gambia gained its independence from Britain. However, the constitution ceased to be in force in 1994 due to the first military coup, which led to the coup d’ etat of the first constitutional order.

The Second Republican Constitution, just as the first constitution, is recognized as the supreme law of the land; hence, any law in Gambia inconsistent with the constitution shall be declared void to the extent of its inconsistency. While the Second Republic Constitution entrenches the principles of rule of law, respect for fundamental human rights, and separation of powers, there was still a clamor and a general consensus by a cross-section of Gambians for a new constitution in its third republic. Gambians believe that a stable and sustainable democracy can be achieved through the drafting of a new constitution. To achieve this, a Constitutional Review Commission Act was enacted in December 2017 which birthed the Constitutional Review Commission, charged with the responsibility of drafting a new constitution to replace the Second Republican Constitution of 1997. The Constitutional Review Commission published the first draft of the new constitution in November 2019. On March 30, 2020 the Constitutional Review Commission produced a final draft following nationwide public consultation and feedback on the 2019 version of the Constitution.

The final 2020 Constitution had several progressive provisions, such as fixed presidential term (Chapter VII, Part IV, section 102 state that no person shall hold office as president for more than two terms of five years each whether or not the terms are consecutive), limit on the executive powers, comprehensive Bill of Rights (Chapter VI, Part II, section 62, economic and social rights; section 63, rights of the elderly; section 65, consumer protection rights), and encompassing political inclusion of marginalized groups. On September 22, 2020, after three days of intensive debate, the Constitution Promulgation Bill 2020 did not receive the requisite majority votes at the National Assembly due to divergent opinions by members of the National Assembly.

4.2. Legislation

The National Assembly’s power to legislate is limited by Section 100 of the Constitution of Gambia, which restricts the National Assembly from legislating on establishing Gambia as a one-party state and establishing a religion as a state religion. Further, the National Assembly cannot legislate on altering the decisions or judgments of a court of law or deprive any person retroactively of acquired rights, although the National Assembly can pass bills which are specifically intended to have a retroactive effect.

4.3. Decrees

A decree passed by the Armed Forces Provisional Council is one of the sources of law by virtue of Section 7(2) of the Constitution of Gambia. During the military era in Gambia from 1994 to 1996, the Armed Forces promulgated decrees in place of the existing laws. One striking feature of the Gambian legal system is that despite the return to democracy, the second republican constitution retained decrees as one of the sources of law in Gambia. Further, electoral laws in Gambia are decrees.

4.4. English Law

Common law and the principles of equity as a source of law are common in African countries that had Britain as their colonial masters. Gambia also belongs to this category, although not all sections of the country are governed by common law and equity because customary law and Sharia law governs certain aspects of the people such as traditional marriage, divorce, family matters, inheritance, and land tenure. Common law is administered in the other areas of law which are not covered by customary law and Sharia law, such as business law and criminal law.

4.5. Customary Law and Sharia Law

Customary law coexists alongside Islamic law, as it is administered to non-Muslims in the area of traditional marriage, divorce, family matters, inheritance, land tenure, and tribal and clan leadership. It can be said that Sharia law is administered in the areas of Islamic marriage, family, child custody, and inheritance matters. The Cadi Court was constituted in 1905 under the British rule and is one of only a handful of the Muslim courts throughout the world. Presently in Gambia, the customary law runs a very high risk of being displaced by the Sharia law.

5. Current Court System Structure

The courts in Gambia are divided into two categories. First, the Superior courts, including the Supreme Court, which is the highest court of the land in Gambia. It has an uneven number of no fewer than five judges and is presided over by the Chief Justice. Second, the Gambia Court of Appeal, which is presided over by the President of the Court of Appeal and constituted by three judges. The High Court, which was known as the Supreme Court before 1997, is constituted by a single judge; however, three judges sit in treason trials. There also are the Special Criminal Court and the subordinate courts, which include the Magistrates’ Court, District Tribunals, Cadi Courts and such lower courts or tribunals that may be established by an Act of Assembly.

Many of the cases heard by the magistrate courts are non-contentious and are disposed of within a day. The Court of Appeal, the High Court, and the Banjul Cadi Court are located in the Law Courts complex in Banjul, while the Supreme Court building is adjacent to the complex and was officially opened on December 5, 1999. The courts in Gambia are also divided by jurisdiction. Apart from the High Court and the Special Criminal Court, the superior courts are largely vested with Appellate Jurisdiction and a limited exclusive original jurisdiction. For instance, the Supreme Court has the jurisdiction to hear and determine appeals from the Court of Appeal on all matters, but the Supreme Court does not have original jurisdiction over criminal matters, nor does it have original jurisdiction over the interpretation and enforcement of fundamental rights and freedom. The courts with the jurisdiction to hear matters at first instance are listed below:

• High Court
• Special Criminal Court – power to hear and determine all criminal offences of theft relating to public property and public funds
• Magistrates’ Court
• District Tribunals
• Cadi Courts – jurisdiction to apply Islamic law in matters of marriage, divorce, and inheritance

One striking feature of the High Court, apart from its appellate jurisdiction to hear appeals from the lower courts, is its supervisory jurisdiction over all lower courts to make orders, issue directions, and write orders of habeas corpus, mandamus, certiorari, and prohibition. Trials are public, and defendants have the right to legal representation at their own cost.

6. Alternative Dispute Resolution

Aside the formal court system, alternative dispute resolution mechanisms are used by Gambian citizens to pursue grievances and conflicts, including mediation, conciliation, and arbitration. The Gambia has an Alternative Dispute Resolution Act of 2005, which established an alternative dispute resolution secretariat to facilitate dispute resolution.

7. Judicial Officers

The Ministry of Justice has ministerial supervision over the administration of justice in Gambia. It is headed by the Attorney General and the Minister of Justice. Presently, the Ministry of Justice has six departments, each headed by a director. The departments are Civil Litigation, Criminal Division, Curator of Interstate Estate, Legislative Drafting, Criminal Division, and Registrar General Companies in Gambia. The judiciary established an institution known as the Judicial Training Institute tasked with the duty of conducting continuing legal and judicial education for all judges, magistrates, cadis, and support staff of the judiciary.

8. Legal Profession

Prior to 2004, legal practice in Gambia was largely unregulated, and in 2004 admission to practice in the Gambia was reliant upon admission to practice in other commonwealth jurisdictions. The reason for this qualification was the absence of a Bachelor of Law at the university. Thus, an average of five lawyers every year was called to the Bar. However, with the introduction of a Bachelor of Law in 2007 and the intake of 20 students, the era of having Gambians study law in other commonwealth jurisdictions to qualify as lawyers in the Gambia was brought to an end. To qualify as a lawyer in the Gambia, a student must undergo a four-year LLB degree and a further one-year training. The establishment of the law school of Gambia in 2011 by the General Legal Council made it possible for the Gambia to call 18 pioneer students to the Gambian Bar in 2013. However, it was not until 2016 that it acquired statutory recognition pursuant to the Gambia Law School Act (2016).

By January 2016, the fourth call-to-bar ceremony had been celebrated with at least 37 students called to the Gambian Bar. Precisely in March 2018, the Gambian Bar experienced progressive growth, as 53 students were called to the Gambian Bar during the sixth call-to-bar ceremony. On November 27, 2019, 61 students (comprised of 40 Gambians, 20 Ghanaians and 1 Cameroonian) were called to the Gambian Bar. The Gambia Law School moved to its permanent campus, the entire complex of the former National Assembly, in January 2016. There are over 200 legal practitioners admitted to practice in the Gambia, most of whose chambers are located in Banjul. The majority of lawyers operate as sole practitioners. Legal practitioners in Gambia are enrolled as barristers and solicitors because, unlike in England, the legal profession is fused. All lawyers in Gambia are required to be members of the Gambia Bar Association.

9. The Gambia Bar Association

GBA is a membership-based professional association in the legal profession. It is an unregistered group of lawyers governed by its constitution. The precise date of its establishment is unknown. By its constitution, legal practitioners enrolled to the Gambia Bar are automatically members of GBA. However, voting rights and other privileges accrue upon payment of the prescribed membership fee and annual subscription fees. Though GBA is not a regulatory or disciplinary body like the General Legal Council, it receives complaints about legal practitioners from members of the public. It can also investigate members’ conduct for the General Legal Council to act on. The GBA is funded by its annual subscription fees.

10. Government Bodies

The Gambia operates on a presidential system of government with a unicameral legislature and an independent judiciary. There are three branches of government in the Gambia are as follows:

• Executive
• Legislature
• Judicature

10.1. The Executive

The president shall be the head of state and commander-in-chief of the armed forces. By virtue of the 1997 Constitution, the president is elected to serve for a term of five years without a term of office limit, meaning a president is not precluded from serving for more than two or three terms in office. One striking feature of the Gambian legal system is the fact that the extension of the life of the National Assembly based on war or a declaration of State of Emergency in Gambia shall automatically extend the tenure of the president for the same period of extension as that of the National Assembly.

10.2. The Legislature

The National Assembly of Gambia is unicameral and is comprised of 53 members, out of which five are appointed by the president. The remaining 48 are directly elected in single-member constituencies by a simple majority vote.

10.3. The Judicature

By Section 120 of the Constitution, the following courts are established in the Gambia:

• The Superior Courts
  • The Supreme Court
  • The Court of Appeal
  • The High Court
  • The Special Criminal Court
• The Magistrate Courts
• The Cadi Courts

The District Tribunals and other such courts or tribunals may be established by an Act of the National Assembly. The judicial power of the Gambia is vested in the courts and shall be exercised by them according to the respective jurisdiction conferred on them by law. In the exercise of their jurisdiction, the courts, judges, and holders of judicial office shall be independent and subject to only to the Constitution. An intricate network of relationships exists between the judiciary and other agencies such as the Department of State (or Ministry of Justice), the police, the Prison Service, Parliament, the legal profession, and civil society

11. Law Reporting

Prior to the Gambia Law Report, the deficiency of a regular and efficient law reporting system in Gambia was seen as a grave weakness in the Gambia’s legal system. The Gambia Law Report began publications in 1993 by the National Council for Law Reporting and has successfully published about three volumes. The National Council for Law Reporting also publishes other legal materials in the form of law review and periodicals in addition to law reports. The Gambia has the Sharia Law Report and unreported judgments electronically published by the Gambia Judiciary. Other independent organizations also report cases that are of interest to them. For instance, Article 19 reported a Supreme Court case on the right of freedom of expression.

12. Newspapers

Although newspapers in Gambia do not formally report cases, there are some newspapers that have picked the trail of informal law reporting and other legal issues and judicial affairs namely:

• Foroyaa (twice weekly)
• Freedom Newspaper
• The Point

13. Statutes

The Gambia has a collection of all the laws in a book known as the Consolidated Laws of Gambia, published by the Gambian Government. The Consolidated Laws of Gambia contain revised statues and subsidiary legislation operating in Gambia from 1990 to 2009. It was first published in 2010 and last updated in December 2012. This is the most comprehensive book on the laws of the Gambia.

14. Official Gazette

The Gambia has an official gazette where the laws of the nation are published and in addition to the official gazette, other sources where laws can be accessed are the Central Bank of the Gambia, Gambia Divestiture Agency, Gambia Investment Promotion and Free Zones Agency, Gambia Public Procurement Authority, Gambia Revenue Authority, Independent Electoral Commission, Ministry of Education, Ministry of Information and Communication, National Assembly Services Authority, Public Service Commission, Gambia, Public Utilities Regulatory Authority, and the Gambia Civil Aviation Authority.

15. Legal Research Guides, Legal Websites Directories, Law Lists, Libraries and Legal Citation Guides

• Global Legal Information Catalog: Gambia (Law Library of Congress) provides bibliographic information on materials in our reference collection.
• Global Legal Monitor (Law Library of Congress) contains reports on the laws of the Gambia. World Legal Information Institute: Gambia(WorldLII) contains the full text of the Constitution of the Gambia and information about the president, ministries, and the National Assembly.
• World Legal Materials from Africa: Gambia (Cornell Legal Information Institute) contains the full text of the Constitution of the Gambia, information about the President, the ministries and the National Assembly.
• The Law Hub Gambia contains full texts of constitutional cases including arbitrary detention and fair trial as well as the full text of the three volumes of the Gambia Law Reports. It also contains the Constitution of the Gambia and the Women’s Act.

16. Secondary Materials

• Raymond Shock, Consolidated Laws of the Gambia, Lexis Nexis, 2009. (Available only in hard-copy format).
• Ousman. A. S. Jammeh, The Constitutional Law of the Gambia, 1965-2010. Author House, 2011.
• E. Olayinka Ayoola,Gambia. Supreme Court, Gambia. High Court, National Council for Law Reporting (Gambia),The Gambia Law Reports 1997-2001, Gambia Law Foundation, 1997.
• Sir Cecil G. Ames, Revised Laws of the Gambia, Sweet & Maxwell, 1968.
• LexisNexis Editorial Staff, Revised Laws of the Gambia, LexisNexis South Africa, 2016.
• Hassan B. Jallow, The Law of Evidence in the Gambia, Gov’t, Printer, 1997.
• International Business Publications, Gambia Mining and Regulations Handbook, Volume 1, Strategic Information and Basic Laws, Int’l Business Publications, Inc., 2008.
• Faculty of Law, The Gambia Law Review 2017, The University of Gambia.
• Ibp Usa, Gambia Business Law Handbook, International Business Publications, USA; 3 edition January 1, 2009.
• Gambia, Laws of the Gambia: Civil law and procedure (CAP.8:01) to Criminal law and procedure (CAP. 13: 08) LexisNexis (Proprietary) Limited South Africa by the authority of the Government of The Gambia, 2009