UPDATE: Guide to Gambian Legal Information

 

By Flora Ogbuitepu Ngo-Martins

 

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, corporate practice and other areas of law. 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.

 

Published September 2016

See the Archive Version

 

1.     Introduction

The Gambia was formerly known as the Republic of Gambia and is officially known as the Islamic Republic of Gambia. Gambia which is popularly known as 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   has an area of 11,295 km with a population of 1.88million from the most recent population census in 2013. The population density of the Gambia is 176.1 inhabitants per square kilometers. It is alienated into 5 divisions which are sub divided into 48 districts and a capital namely: lower river (mansa konko) central river (Janjanbureh) North bank (kerewan) upper river (Basse Santa Su) Western (Brikama) and Banjul as the capital with two largest cities namely Serekunda and Brikama . The official language of Gambia is English, but in March 2014 the President announced that English shall 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 dialect.

 

Majority of the Gambia’s ethnic population falls into 8 indigenous tribes namely: Mandika (about 41% of the population), Wolof (about 15% of the population) Fula (about 19% of the population) Jola (10% of the population) Serahuli(about 8% of the population) Serer (about 2.5% of the population) Manjago (about 1.7% of the population) Aku (about 0.8% of the population). A third of its population lives below the international poverty line of US1.25 per day. About 94% 0f the overall population are Muslims and about an estimated 8% are Christians while less than 2% practice African Traditional Religion. The currency is Gambian dalasi. In October 2013, the Gambia denounced its membership to the Commonwealth of Nations stating neo-colonialism as its reason for the denouncement. The economy of the Gambia is reliant on tourism, farming and fishing.  

 

2.     Historical Notes

The first Europeans who arrived on the Gambia River were the Portuguese in 1455, however they 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.

 

Since its independence, the Gambia has had two leaders, President Dawada Kairaba Jawara (1970-1994) who was re-elected 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 who defeated the rebel 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, YahyaA.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.Yahya Jammeh in 1996 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 coup.  In 2013, there was an alleged coup which led to the bloodbath of 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 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.

 

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 applies 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.

 

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 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.

 

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 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.

 

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 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.

 

4.5 Customary Law and Sharia 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 and is one of only a handful of the Muslim Courts established as at then 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 the Gambia are divided into two categories namely: superior courts which comprise Supreme Court which is the highest court of law in the Gambia, it is constituted by an uneven number of not less than five judges and is presided over by the Chief Justice.

 

The Gambia Court of Appeal is presided over by the President of the Court of Appeal and it is 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., 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. 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 Law Courts complex and was officially opened on December 5, 1999..  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:

 

·       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, certorirari and prohibition. Trials are public and defendants have the right to legal representation at their own cost.

 

6.     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, Registrar General Companies in Gambia. The judiciary established an institution known as 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.

 

7.     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 with 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 made it possible for the Gambia to call 18 pioneer students to the Gambian Bar in 2013.

 

By January 2016, the 4th call to bar ceremony had been celebrated with at least 37 students called to the Gambian Bar. The Gambia law school moved to its permanent campus which is the entire complex of the former National Assembly in January, 2016.  There are about 200 legal practitioners admitted to practice in the Gambia, most of whose chambers are located in Banjul. Majority of the lawyers operate as sole practitioners. Legal practitioners in Gambia are enrolled as Barristers and Solicitors because unlike in England the legal profession is fused.   s. All lawyers in Gambia are required to be members of the Gambia Bar Association.

 

8.    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. 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 on legal practitioners from members of the public. It can also investigate members’ conducts for the General Legal Council to act on. The GBA is funded through its annual subscription fees.

 

9.     Government Bodies

The Gambia operates a presidential system of Government with a unicameral legislature and an independent judiciary. There are three branches of Government in the Gambia namely:

·       Executive

·       Legislature

·       Judicature

 

9.1 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 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.

 

9.2 The Legislature

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. 

 

9.3 The Judicature

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

 

·       The Superior courts comprising

o   The Supreme Court

o   The Court of Appeal

o   The High Court and

o   The Special Criminal Court

·       The Magistrate Courts  

·       The cadi Courts

·       The District Tribunals and such other Courts or Tribunals as 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, the judges and the 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 

 

10.  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 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 the Sharia law report and unreported judgments electronically published by the Gambia Judiciary.  Other independent organisations 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.

 

11.   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:

 

 

12.  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 updated last in December 2012. This is the most comprehensive book on the laws of the Gambia.

 

13.  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 gotten are: The Central Bank of the Gambia, Gambia Divestiture Agency, Gambia Investment Promotion and Free Zones Agency and Gambia Public Procurement Authority.  

 

14.  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: 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.

 

15.  Secondary Materials

·       Raymond Shock, Consolidated Laws of the Gambia, Lexis Nexis, 2009.

·       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.

·       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.