Guide to Gambian Legal Information
By Flora Ogbuitepu
Flora Ogbuitepu obtained an LLB (Hons) from Kogi State University Anyigba, Nigeria, a B.L from the Nigerian Law School (Lagos Campus) and an LLM in human rights from the University of Pretoria, South Africa. She has a wealth of experience in the theory and practice of human rights law and other areas of law. She has also written numerous papers on human rights issues, which have been published. She is currently a Senior Associate at Tope Adebayo LLP, a firm of Legal Practitioners and Arbitrators.
Published May 2012
Table of contents
Gambia is located in West Africa and known as the smallest country on mainland Africa whose borders mirror the twisty Gambia River. The Gambia River flows through Gambia’s centre and empties itself in the Atlantic Ocean. Gambia which has an area of 11,295 km with a probable population of 1.7million is alienated into 5 divisions which are sub divided into 48 districts and one city namely: lower river (mansa konko) central river (Janjanbureh) North bank (kerewan) upper river (Basse Santa Su) Western (Brikama) and Banjul as the city. The official language of Gambia is English, while other languages spoken in Gambia include Mandinka, Wolof, Fula and other native dialect.
The first Europeans who arrived on the Gambia River were the Portuguese in 1455, however there were driven by the 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 16th century, which has led to the tales that the name Gambia River originated from the Portuguese word, called 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 in the Gambia River. Thus, the Gambia River changed ownership from the Portuguese to the Dutch and then to the British. The first Europeans who finally settled in Gambia were the Baltic German in 1651 but were later overthrown by the British who were constantly under threat from the French, Pirates and African Kings. The Gambia was vested in the British Crown for eighteen years and was part of the British Colony of Senegambia with its headquarters at 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 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 18 February 1965, Gambia gained political independence from Britain and became a Republic on 24 April 1970 after a majority agreed referendum.
The Gambian Legal System, like most West African Countries consists of the English common law, customary and sharia law. The growth of legal system in Gambia began
The major sources of the Gambian law are the Constitution, legislation, judicial precedents, decrees, English law and customary law and sharia law.
The Gambia can be said to have had only two constitutions since independence until 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 powers of the prime minister as the government. 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 her 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, which is inconsistent with the constitution, shall be declared void to the extent of its inconsistency.
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. The National Assembly of Gambia is unicameral and comprises 53 members out of which 5 are appointed by the President, while the remaining 48 are directly elected in single- member constituencies by a simple majority vote.
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 commencing from 1994- 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, the electoral laws in Gambia are decrees.
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 is 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. While 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.
Customary law co-exists alongside Islamic law as it is administered to non-Muslims in the area of traditional marriage, divorce, family matters, inheritance, land tenure, 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. Presently in Gambia, the customary law runs a very high risk of being displaced by the Sharia law.
The courts in the Gambia are divided into two categories namely: superior courts which comprise Supreme Court, Gambia Court of Appeal, High Court, Special Criminal Court and the subordinate courts which consists Magistrates Court, District Tribunals, Cadi Courts and such lower courts or tribunals that may be established by an Act of Assembly. The Courts in Gambia is also divided by their 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, which have the jurisdiction to hear matters at first instance, are listed below:
Special Criminal Court (Power to hear and determine all criminal offences of theft relating to public property and public funds)
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, certorirari and prohibition.
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, Registrar General Companies in Gambia.
Prior to 2004, legal practice in Gambia is 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 with the intake of 20 students, it is hopeful that more numbers of Gambians will emerge as lawyers as against the paltry number, which emerged on a yearly basis due to the requirement of studying, law in other commonwealth jurisdictions. All lawyers in Gambia are required to be members of the Gambia Bar Association.
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 only however, one striking feature in 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 with that of the National Assembly.
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 3 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 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. This is the most comprehensive book on the laws of the Gambia.
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 gotten are: The Central Bank of the Gambia, Gambia Divestiture Agency, Gambia Investment Promotion and Free Zones Agency and Gambia Public Procurement Authority.
Global Legal Information Catalog: Gambia (Law Library of Congress) provides bibliographic information on materials in our reference collection.
Global Legal Monitor: Gambia (Law Library of Congress)
Multinational Reference (Law Library of Congress)
Islamic Family Law: Gambia (Emory University Law School) provides the legal history of Gambia, but throws more light on the Islamic law in Gambia.
World Legal Information Institute: Gambia (WorldLII): This site contains the full-text of the constitution of Gambia, information about the President, the ministries and the National Assembly.
World Legal Materials from Africa: Gambia (Cornell Legal Information Institute) This site contains the full-text of the constitution of Gambia, information
about the President, the ministries and the National Assembly.