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CONSTITUTIONAL LAW II PERSONAL MATERIAL

TOPICS

 Directive principles of state policy Vs Fundamental human rights


 Separation of Powers
 Secularism
 The Right to Fair Hearing
 Judicial Review
 Institution of Administration of Justice (Court)

1. Directive principles of state policy Vs Fundamental human rights


 DIRECTIVE PRINCIPLES OF STATE POLICY (Section 211 – 220):
 Not justiciable and it is communal rights
 They’re like cultural, economic, and political factors
 They’re positive in nature (government should do …)

Section 211: The principles of state policy in this Chapter shall form part of the public
policy of The Gambia for the establishment of a just, free and democratic state. These
principles shall not confer legal rights or be enforceable in any court but-
(a) subject to the limits of the economic capacity and development of The Gambia,
the Executive, the Legislature and all other organs of the State in taking
policy decisions, making laws and in the administration of the Gambia, shall
according to their respective functions be guided by and observe them with a
view to achieving by legislation or otherwise the full realisation of these
principles; and
(b) the courts are entitled to have regard to these principles in interpreting any laws
based on them.

 PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM (Section 17 – 33 and


35(c):
 FHR is Justiciable and it is individual’s rights
 They’re the basic rights of human such as right to life, food, shelter e.t.c
 They’re rights are negative in nature (Don’t do this…)

17. (1) The fundamental human rights and freedoms enshrined in Rights and this Chapter
shall be respected and upheld by all organs of the Executive and its agencies, the
Legislature and, where applicable to them, by all natural and legal persons in The Gambia,
and shall be enforceable by the Courts in accordance with this Constitution.
(2) Every person in the Gambia, whatever his or her race, colour, gender, Language,
religion, political or other opinion, National or social origin, property, birth or other status,
shall be entitled to the fundamental human rights and freedoms of the individual contained
in this chapter, but subject to respect for the rights and freedoms of others and for the
public interest.

Please, visit your constitution to know proper understanding on these topics.

2. SEPARATION OF POWERS IN THE 1997 CONSTITUTION


 There was need to ensure that adequate checks and balances are put in place in
appointment of high public officials. Presidential tenure also required attention.
 Many amendments in 2001 and 2007 of Constitution as a result of lack of thorough
consultations in putting it together.
 Constitutional Review Commission was no substitute to constituent Assembly as in
the case of Ghana and Nigeria. Its deliberations were rushed. No more than one
month between first and final draft constitution.
 New Constitution however restored Separation of powers. 1970 Constitution had no
supremacy clause but respected by courts nonetheless.
 Unlike 1970 Constitution, 1997 Constitution clearly states that judicial powers shall
lie in the Courts. Independence of the judiciary also expressly declared. See section
120 (1) and (2).
 1997 Constitution created new institutions such as;Independent Electoral
Commission. See section 42-45 of the constitution.Office of the Ombudsman. See
section 63-165 of the constitution.National Audit Office. See section 158-160 of the
constitution.National Land Commission. See section 192 of the constitution.National
Council for Civic Education. See section 198-199 of the constitution.Anti-corruption
commission pursuant to Anti-Corruption Act of 2012.
 Section 62 (3) (a) (b) provides for disqualification from running for public office any
person dismissed or compulsory retired from public office draconian? Need for
higher threshold? Seems to have originated from Decree 89 which banned all
persons who held President, V.P, Minister during 30 years PPP except PDOIS
repealed in 2001 by the Political Activities Resumption (Repeal) Act. No 10 0f
2001.Way forward for other obsolete decrees?
 1997 Constitution introduced Supreme Court as final Appellate Court replacing the
Privy Council. Section 126.
 Act No 6 of 2001 Constitution of the Republic of the Gambia (Amendment) Act 2001.
Three entrenched provisions amended did not go through process of referendum as
required.
EXECUTIVE

 Executive powers are vested in the President and can be exercised by him through
the Vice President, Ministers or other Officers responsible to him. E.g, Permanent
Secretaries, Directors, Service Chiefs, Ambassadors etc. See sections 61 to 83 of the
1997 Constitution.
 Executive authority of the President is also an extended form of delegated power as
he cannot be everywhere.
 President is Commander-in-Chief of Armed Forces, appoints service chiefs including
C.D.S, I.G.P, D.G, NIA, D.G NDEA.
 President generally enjoys immunity except, under international criminal law. See
Pinochet Case.See also section 69 of the constitution for restrictions on the scope of
immunity enjoyed by the President
 Domestically, President also appoints others like S.G, Permanent Secretaries,
Diplomats, Heads of State Corporations, Regional Governors, Deputy Governors,
District Chiefs, Chair and members of PSC, IEC Chairman and members, Ombudsman
and Deputy etc.
 Section 77 makes executive accountable to the National Assembly through checks
and balances by,
a) Ensuring President attends Parliament once a year to outline policies and
legislative programme.
b) Giving the National Assembly discretion to request President to attend.
c) Making it mandatory for the Vice President to answer to matters affecting
President in the National Assembly. Contrast with 1970 constitution
d) May request the Vice President or Minister to report to the National Assembly.
e) Executive powers of President are exercised often subject to legislative
instructions like Acts of Parliament. Subsidiary Legislations is important in
matters requiring expertise such as customs & exercise act, The Police Act etc.
 See Kanteh & 3 others v The State Crim Appeal No. 12-15/1997, Judgment of 2nd
October, 1997, which states that the Government of the Gambia comprises of the
President and other Cabinet Members. See section 230 of the Constitution.

THE CABINET

 See section 73 of the Constitution


 Advices the President on government policies.
 Implementation of government policy on all matters of public importance must
necessarily have the prior approval or subsequent ratification of Cabinet.
 Section 71 amended to remove cap on the number of ministers allowed by Act No. 3
of 2001.
 Section 74 provides for “collective responsibility” of V.P and Ministers on advice
given to the President and V.P and the ministers are accountable to the President
and N.A.
 Section 75 provides for sanction (vote of censure) of Cabinet members for serious
misconduct and transgressions. V.P can also be subjected to the vote of censure. A
vote of censure can be a catalyst for the revocation of a ministers appointment by
the President
 Cabinet members take Oath of Office. See Section 71(3).
 Minister is a political appointee and not a civil servant, appointed by the President
and can be terminated by him pursuant to section 71(4).
 Neither Speaker nor Chief Justice is a member of cabinet. Attorney General
represents Judiciary and Lands Minister represents National Assembly

ATTORNEY GENERAL

 See Section 72(2)


 Principal Legal Adviser to the Government and must be five years at the Bar. See 71
subsection 2
 Has power to commence, take or discontinue criminal proceedings except private
prosecutions which require consent of private prosecutor and the court in some
instances. See section 85 of the constitution
 S.G is assistant to A.G
 A.G is the official leader of the bar
 DPP exercises power of nolle prosequi on behalf of A.G except in private
prosecutions.
 What happens if there is no substantive holder of A.G, can a subordinate officer have
the power to file a nolle prosequi? Is nolle prosequi used responsibly? Has it been
politicized? A.G needs to use it for public interest, national security etc. A.G is not
required to give any reason for nolle prosequi.
 A.G also has to give consent for certain prosecution like sedition and bigamy.

LEGISLATURE

 Is the law making body


 Headed by Speaker and assisted by Deputy Speaker. See section 103 of the
Constitution.
 The Clerk, a public officer is the administrative head.
 Legislators must inspire confidence, ability, critical thoughts and objectivity and
above all the courage to defend the interests of their constituents “the People” at all
times see section 112.
 Executive initiates all major pieces of legislation. Respective ministries table the
bills before parliament.
 Ensures that executive does not over reach its policy making role or competence
especially when it seeks to translate such policies into law.
 To date only one private members bill since 1997 constitution. i.e “Ban on smoking
in public offices (Bill), now an Act.”
 Diversity in education, professional and career experiences of members of the
assembly qualitatively enhances parliamentary practice. i.e select committee et al.
 See section 89 on qualifications to be a member.
 Two former National Assembly members unseated for convictions. See section 91
(c).
 Once expelled from your party, you also lose your seat, or if you resign or move to a
party other than the one that sponsored your election. See the NADD case
 President can dissolve parliament at any time
 See the case of Halifa Sallah & others v Attorney General

LAW MAKING PROCESS

 Bills and motions are tabled by the executive through the Vice President, Ministers,
or by a National Assembly member, as a private member’s Bill.
 The most common bills are public (Government) bills.
 Annual appropriations Bills/National Budgets may be presented by V.P or Minister
of Finance. This follows a referral to the committee of supplies only gazzetted for
five days so members can familiarize themselves with it.
 Most bills must be gazzetted. See section 101 (3) except certified as “urgent” by the
president
 Cabinet Committee on legislation is chaired by A.G to ensure all bills are coherent
and consistent with existing laws.
 Speaker cannot vote by virtue of section 106 (2).where there is equality of votes, bill
deemed rejected.
 Members to declare financial or pecuniary interests or else vote will be invalid.
Section 106 (1) and (3).
 Members can abstain from voting
 Once bill is passed, it is gazzetted, may come into force at once or in a prescribed
manner.
 Supreme Court entertains legal challenges for non-compliance of a statute with the
constitution. See UDP, NRP, Hon Momodou Sanneh v Attorney General.

INTERNAL PROCEEDINGS AND PRIVILEGES


 Offices of majority and minority leaders are new features of 1997 Constitution. See
standing order 87.
 Speaker has powers under standing orders to discipline members including for
contempt. See order 42-49
 See section 122 to 119 for responsibilities, privileges and immunities of National
Assembly members.
 Section 113 and 114 deals with free speech.
 Free speech privilege must however be exercised responsibly in the national
interest and not maliciously.
 Potential government reprimand. E.g expulsion. See case of minister who was
reprimanded.
 Disguised government officials can use National assembly members to say things
that might otherwise attract reprimand.
 Free speech of NAMS can serve as catalyst for further investigations or to ignite full
and public debates.
 Section 119 (1) and (2) limits free speech by restricting disclosure of certain
documents.
 Can the speaker unilaterally hold for contempt in the absence of a motion from the
floor? See standing order 45 (4) see also section 110.
 Public account committee scrutinizes government expenditure, examination of
financial records and statements, among others to ensure compliance with
authorized expenditure. See order 77, section 160 (1) (d) and (9) requires Auditor
General to submit finance reports to NA of all public institutions within six months
of the end of the final year proceeding including any irregularities.
 Ministerial questions and answers are important for policy dissemination and
enlightenment.

TENURE OF MEMBERS

 Section 88 speaker and deputy are elective offices from nominated members. They
are not public officers. See section 166 of the constitution.
 What is the correct procedure for removal of the speaker? Distinction between
“nomination” and “election” Section 80 is not an implied source of power. Speaker
should only be removed by NAMS themselves. How? See section 228.Contrast with
section 67 (3) (d) of 1970 Constitution.
 Can speaker challenge removal as unconstitutional? See section 127.
 Section 67 provides checks on executive and judiciary
 1997 constitution enumerates several grounds for removing president. See 63 (3)
(4) (5) and 66.
 Power of interpretation and enforcement lies with the judiciary.
JUDICIARY

 Has the power to interpret and enforce the constitution


 See section 120 of the constitution on role of judiciary.
 As the only forum where ordinary citizens expect redress for common grievances
against one another, their independence is paramount.
 Judiciary applies the law of the Gambia as enshrined under section 7 of the
Constitution.
 It is an abuse of the judicial process, as well as an act of insubordination if a court
deliberately assumes jurisdiction in a matter which it has none.
 Judiciary has competence to afford hearing to a person lawfully aggrieved by the
actions of the state and its agents.
 See United Democratic Party (No.1) and others v Attorney General (No.1) read
together with Section 5(1), 6(2) and 127 (1) (a)

3. SECULARISM

LECTURER’S VIEW ON SECULARISM:

As secular means without religion, a secular state is therefore a state that is officially
neutral in matters of religion, supporting neither religion nor irreligion. Now, to answer the
question on whether the Gambia should be a secular state - Yes, it should be.

Some may argue that in a secular state, the law: “a man-made document” called the
constitution is the highest authority. States that are secular choose constitution over God in
all matters of public life where the law is concerned. Therefore the basis of secularism is
that God has been replaced by the constitution.

It is convictions like these that shows one precisely why The Gambia should be a secular
state. The question we need to ask ourselves is this – What happens to a state that
encourages favoritism amongst its citizens and is constantly at odds with themselves? All
hell breaks loose! And that’s just putting it lightly.

Religion has its roots on the fundamental believes of different people who form part of the
subject of a state. Therefore, as diverse as the subjects are, so are their ideas and beliefs
concerning the Unseen God. This extreme nature of “believing” makes it impossible for the
subjects of a state to agree up-on a single religion as the only one they will adopt. And if
they are forced to do this by tyrannical or autocratic means, it is fated to face the
reactionary force of the people and not only will it fail but it will also threaten the very
existence of the state and the peace we so hope to maintain will perish.
This is why the Gambia should be a secular state - a state that won’t impose believes on its
people allowing them to freely choose or practice any religion or no religion at all. A state
where logical reasons are given to the guiding principles of the nation’s laws as opposed to
creeds copied from religious morality. And finally, a state that treats all its citizens equally
regardless of religion.

OUR ASSIGNMENT ON SECULARISM

Kemesseng Jammeh v Attorney General (2002) AHRLR 72 (GaSC 2001)-Analyse the


case above while considering the issue of secularism in The Gambia? Should The
Gambia be a secular state? Yes, then why, No, why?

With regard to the question above, firstly, it would be wise to briefly recall our minds to the
meaning of Secularism which is a political philosophy that addresses the relationship
between religion and the state: briefly, it advocates the separation of religion from the
state. One of the strongest selling points of secularism is that, by separating religion from
the state, it protects every person’s freedom to choose what to believe or what not believe,
within the law. This protects religious people from other religious people, as well as from
people whose beliefs are not religious. And vice-versa. Secularism advocates that the state
should not be involved in matters of religion and religion should not be involved in matters
of the state.1

Going by the facts of the case given; Kemeseng Jammeh v Attorney General (2002) AHRLR 72
(GaSC 2001)-where the plaintiff claims the reliefs for:
• (a) a declaration that the Bill entitled the Constitution of the Republic of The
Gambia,1997 (Amendment) Act, 2001 (6 of 2001) passed by the National Assembly
on 15 May 2001 and assented to by the President on 25 May 2001 was made in
excess of the powers conferred on the National Assembly and the President;
• (b) a declaration that the Constitution of the Republic of The Gambia (Amendment)
Act, 2001 (6 of 2001) is null and void and of no effect.
The plaintiff contended that: (i) section 1(1) of the Constitution is an entrenched provision
and its amendment must comply with the procedure set out in section 226(4) of the 1997
Constitution; and (ii) paragraph 13(1) of Schedule II to the 1997 Constitution in its
paragraph 17 specifically prohibits its amendments or repeal. It was the plaintiff's further
contention that as result of non-compliance with the provisions of the 1997 Constitution,
the entire Bill should be declared null and void and of no effect.

The Court based its decision on section 5(1)(a) and (b) of the 1997 Constitution of The
Gambia, that the plaintiff in his capacity as an ordinary citizen of The Gambia, is enclothed
with legal right and locus standi to institute the present action to challenge the legality and
constitutionality of the amendments to section 1(1) and paragraph 13 of Schedule II to the
Constitution of The Gambia as contained in the Constitution of the Republic of The Gambia,
1997 (Amendment) Act, 2001 (6 of 2001), which was assented to without complying with

1
Gerard Phillips (2011) Introduction to Secularism
section 226(4) and paragraph 17 of Schedule II to the said Constitution. The amendments
to that extent are hereby declared unconstitutional and are therefore null and void, with no
legal effect whatsoever. The action therefore partially succeeds.

The Provisions of the constitution are:


• Section 226(4) of the Constitution provides that a Bill for an Act of the National
Assembly containing any of the provisions referred to in section 226(7) thereof shall
be subjected to a referendum among other requirements. Section 1(1) of the
Constitution is one of such provisions. By paragraph 7 of Schedule II to the 1997
Constitution, the National Assembly shall have no power to pass a Bill to amend or
repeal paragraph 13(1) of Schedule II. In the circumstances, the Bill purporting to
amend the above two provisions of the Constitution is ultra vires the powers of the
National Assembly and the President.

• Section 1 (1) The Gambia is a Sovereign Secular Republic2

In our humble opinion, and to answer the main question, we therefore say YES, The Gambia
should be a secular republic as it is delineate in The Constitution because Secularism in The
Gambia is underwritten by specific values familiar to western liberal societies: democracy
and the value of democratic institutions; equality before the law; a focus on the rights of
individuals rather than groups or beliefs; political freedoms such as freedom of speech,
thought, publication and assembly; a tolerance of differences of outlook and behaviours,
including religious tolerance. Drawing these strands together, secularism in The Gambia
can be characterized as a political philosophy that addresses the relationship between
religions and the state. It holds that broadly:
• There should be a separation of religion and the state;
• Everyone should be free to practise their faith, change it or not have one, according to
their conscience;
• Any person’s religious beliefs or lack of them should not in itself put them at an advantage
or a disadvantage.

This approach works both ways; it protects both religious and non-religious persons
equally. Most people who call themselves secularists, whether religious or non-religious
would probably agree with this definition so far. From this general approach many benefits
follow:
• Promoting a more effective democracy
• Promoting equality before the law
• Promoting one law for all (means avoid the systems of parallel religious laws),
• Defending political freedoms which means protecting freedom of expression
within the law.
• If everyone is free to practice what they believe, or don’t believe, there needs to be
both freedom of religion and freedom from religion.
• In protecting freedom of belief

2
The Constitution of The Gambia
• Promoting fairness for everyone
• Promoting social cohesion and a sense of common identity comes from educating
children together, not labeling them as Protestant children, Catholic children,
Muslim children, or Jewish children
Key words to note
• Secularists are those who believe that no religion should have a privileged place in
society.
• Secularism and secularisation
Whereas “secularism” can be summarised as a political philosophy advocating the
separation of religion and state, “secularisation” is, in a sense, a turning away of society
generally from organised religion.

4. JUDICIAL REVIEW

Judicial review is the procedure by which one can seek to challenge the decision, action or
failure to act of a public body such as a government department/agency or a body
exercising a public law function. Judicial review is however the exercise of the Court’s
inherent power at common law to determine whether action is lawful or not; in a word to
uphold the rule of law.

It’s the process by which administrative action is held up to scrutiny by the courts. Judicial
review has its own proceedings and procedures. In particular, leave to apply for judicial
review must be made within three months of the event that is alleged to give rise to the
claim. For an application for a judicial review to succeed, the applicant in his application
must show four things:
i. That an application for judicial review is appropriate for the kind of loss suffered by
the claimant;
ii. That the body against which the claim is made is subject to judicial review.
iii. That the applicant has sufficient standing to make the claim;
iv. That the actions of the decision of the administrative department gave grounds for
review
In challenging the decision of a court, Section 133 of the constitution says: “The High Court
shall have supervisory jurisdiction over all lower courts and adjudicatory authorities in The
Gambia, and in the exercise of its supervisory jurisdiction, shall have power to issue
directions, orders, or writs, including writs of habeas corpus, orders of certiorari,
mandamus and prohibition as it may consider appropriate for the purposes of enforcing its
supervisory powers”. The jurisdiction of judicial review extends only to decisions of
inferior courts by the High Courts. Judicial review does not extend to decisions of the High
Court or Court of Appeal. Judicial review is used where one is seeking:

 A Quashing Order (an order quashing the public body’s decision)


 A mandatory order ( an order requiring the public body to do something)
 A prohibiting Order (an order preventing the public body from doing
something)
 A Declaration
5. THE RIGHT TO FAIR HEARING

Fair hearing is a judicial proceeding which is carried out abiding by the fundamental
concepts of justice and equality. The authority implemented during the fair hearing must
comply with the principles of “Due Process of Law”. The Principle of Due Process of Law
originates in the common law; it implies that there is a constitutional guarantee that all
legal procedures will be fair and an individual will be notified of the procedures
beforehand and must be given an opportunity to be heard before a judgment is made
against them to take away their life, liberty or property. A fair hearing may not necessarily
be termed as a fair trial, can also be administrative hearing such as the immigration board,
taxation and so on.

Section 24 of the Constitution provides:


Any court or other adjudicating authority established by law for the determination of any criminal trial or
matter, for the determination of the existence or extent of any civil right or obligation, shall be independent
and impartial; and
(a) if any person is charged with a criminal offence, then, unless the charge is withdrawn; or
(b) where proceedings are commenced for the determination or the existence of any civil right or
obligation, the case shall be afforded a fair hearing within a reasonable time.

The concept of fair hearing is however based on two components. One is “Audi Alteram
Partem”, which means that everyone has the right to be heard. Nobody should be
condemned before their point of view is heard. This rule states that the concerned party
should be given prior notice of the action being taken against them and they should be
provided with adequate time to prepare their case. They are also entitled to access the
information the court or tribunal will rely on while making decision.
Section 24(3) Every person who is charged with a criminal offence-
(a) shall be presumed innocent until he or she is proved or has pleaded guilty;
(b) shall be informed at the time he or she is charged, in a language which he or she understands and
in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his or her defense;
(d) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by
a legal representative of his or her own choice;(contd) Pls, endeavour to consult your constitution for details

The other pillar of fair hearing is “Nemo iudex in causa sua” which means that a person
should not be judging his own case. This also implies that the person who is judging must
be impartial, i.e. not be biased towards any party. The Rule of Bias is thought to be based
upon the words of Lord Hewart’s famous statement, “justice should not only be done but
also be seen to be done”. The rule against bias law has become very important considering
the link between impartiality and public confidence in courts and other decision making
places where the rule against bias is applicable.
6. INSTITUTION OF ADMINISTRATION OF JUSTICE (COURT)
 Hierarchy of courts in Gambia

THE SUPREME COURT

The Supreme Court is the highest Court in The Gambia, and it has both original and an
appellate jurisdiction. It is comprises of the Chief Justice, and no more than five Justices of
the Supreme Court. The number of Justices who could sit on a substantive case is five, while
a single Justice of the Court may hear an interlocutory application, with the liberty of the
parties to move to the full bench on a fresh application pursuant to section 125 (2) of the
Constitution. A bench of seven Justices shall hear a review application from a decision of
the single Judge of the Supreme Court. A decision is interlocutory if it is not final on the
issues for determination between the parties. However, an interlocutory decision may well
dispose of a matter without going into the merits especially when a jurisdictional issue
ends the proceedings. A person is eligible for appointment as a Justice of the Supreme
Court if he or she has been a Judge of the Court of Appeal, has been a legal practitioner for
not less than 12 years, or has been a Judge of a Superior Court in a common law
jurisdiction.

THE COURT OF APPEAL

Second in the hierarchy of Courts, and which has no original jurisdiction under the
Constitution, is the Gambia Court of Appeal. However, it had limited transitional powers ad
interim, to exercise the judicial functions of the Supreme Court between the period of
cessation of appeals to the Judicial Committee of the Privy Council, and the setting up of the
Supreme Court from 1997 to 1999. Relevant case law emerged during this period in two
cases, discussed below. Darbo vs. Attorney General; and in Saho vs IGP & Others. The
President of the Court of Appeal and no more than three Justices of Appeal heads this
Court. A person is eligible for appointment to this court if, he or she has held the office of a
Judge of the High Court or as a judge of a court having similar jurisdiction in a common law
country, or has practiced, as a legal practitioner, in a common law jurisdiction for not less
than eight years. The Court of Appeal hears appeals in both civil and criminal cases from
the High Court. This Court has recently ruled in an appeal by the State in Attorney General
v. Pap Cheyassin Secka, that it has powers to hear appeals from the findings of a Judicial
Commission of inquiry, because a Commission of Inquiry set up pursuant to section 200 (1)
of the Constitution is of co-equal jurisdiction with the High Court.

On the one hand, this decision is at variance with an earlier decision of the High Court, in a
similar application for an order of certiorari, in which Yusuf J. held that ‘a submission that
the High Court is of co-equal jurisdiction with the Commission of Inquiry was a far cry from
the reality under the Constitution. Mam Yassin Sey J. made a similar finding in the same
case. On the other hand, in Secka, a similar argument was advanced by Counsel for the
Attorney General, as Respondent in the court below, who relied on section 204 (2) of the
Constitution. The Respondents argued that the decision of a Commission of Inquiry is to be
treated, for all intents and purposes, as a judgment of the High Court on appeal from an
adverse finding thereof. The High Court also rightly observed that a Commission of Inquiry
is an “adjudicatory authority”, and therefore amenable to its supervisory jurisdiction under
section 133 of the Constitution.

THE HIGH COURT

The high court of the Gambia is established by section 131(1) of the 1997 constitution of
the Gambia. Prior to the 1997 constitution, it was known as the Supreme Court. It was first
by the Gambia by the British Colonial administration as such Supreme Court. After
independence, its establishment continues to be provided for in the constitution including
1970 Republican Constitution3.

The 1997 Constitution of The Gambia described the High Court of the Gambia as a Court of
unlimited original jurisdiction in civil and criminal cases. It is composed of not less than
seven Judges, all of whom must be qualified as Legal Practitioners, and for not less than 5
years; or must have served as; a Master of the High Court, a Principal Magistrate, or a
member of the private or public bar4.

Composition of the High Court

Section 131(1) of the 1997 constitution provides that the High Court shall consist of:

 The High Court Justice


 Not less than seven other justices of the High court
 Any judge of a superior court whom the chief justice may by writing request to sit as a
judge of the high court.

As provided that the High Court shall be duly constituted by a single judge. Section3 (2) of
the courts Act cap 6 or vol. II Laws of the Gambia 1990 shall be heard and determined by a
single judge, who shall have all jurisdiction powers of that court

Jurisdiction of High Court


 132(1) Save as provided in section 127, the High Court shall have original
jurisdiction
a. To hear and determine all civil and criminal proceedings;
b. to interpret and enforce the fundamental rights and freedoms as provided in
section 18 to 33 and section 36 (5), and in the exercise of such jurisdiction,

3EA Agim The Gambia Legal System (2009) p171


4 Section 131 (1) (a) of 1997 Constitution of The Gambia
the Court shall have all such power and authority as may be conferred by this
Constitution or any other law.
 132(2): The High Court shall have such jurisdiction in appeals from courts
subordinate to it (other than the Cadi court) as may be prescribed by an Act of the
National Assembly.

The High Court also has an appellate jurisdiction like the Court of Appeal and the Supreme
Court. In fact, most appeals lie from the Magistrates’ Courts and District Tribunals to the
High Court on matter of law and fact.

Supervisory Jurisdiction of the High Court

The 1997 of the Gambia Constitution described the High Court of the Gambia as a Court of
unlimited original jurisdiction in civil and criminal cases5. Pursuant to Section 133 of the
said constitution which says:

“The High Court shall have supervisory jurisdiction over all lower courts and
adjudicatory authorities in The Gambia, and in the exercise of its supervisory
jurisdiction, shall have power to issue directions, orders, or writs, including
writ of habeas corpus, orders of certiorari, mandamus and prohibition as it
may consider appropriate for the purposes of enforcing its supervisory
powers”6.

By virtue of Section 133 of the 1997 constitution provides that in exercising the
supervisory jurisdiction, the court shall have the power to issue the followings writs

 The power to issue direction


 Writ of Habeas Corpus
 Writ of Mandamus and Prohibition:
 Order of Certiorari

GENERAL COURT MARTIAL

The Gambia Armed Forces was established by an Act of Parliament in 1985, the Gambia
Armed Forces Act, Cap.19 Vol. III; of Laws of the Gambia, 1990, created a standing National
Army for The Gambia. This came several years following the disbandment of the West
Africa Frontier Force (WAFF) after the Second World War, which colonial law left us with a
Police Field Force, instead of a standing army. Consequently, the regimental nature of the
Armed Forces required a separate court from the normal civilian courts for the
enforcement of internal discipline through military law. The General Court Martial

5 ibid
6 Section 133 of the 1997 Constitution of The Gambia
established under section 94 (1) and (2) of the GAFA Act, to cater for this special
jurisdiction. Among the offences, which the court has, jurisdiction to try includes treason,
mutiny, unlawful killing, desertion, disobedience to superior orders, loosing firearms, etc.
The Act further empowers the Chief Justice to appoint a Judge of the superior courts, as
Judge Advocate, whose role is to ensure compliance with substantive rules of fairness and
due process by a panel of serving commissioned and non-commissioned military officers. A
Judge Advocate is not a member of the Court Martial. Defense lawyers in private practice
may appear on behalf of indicted military personnel in proceedings of the Court Martial.
This Court has no jurisdiction over civilians, and if an offence in committed under the
Armed Forces Act, by a serving member of the armed forces with civilians, the High Court
shall have jurisdiction. A few recent state security cases involving civilians and members of
the Gambian Armed Forces illustrate this position. In case of The State v. Ebrima Barrow,
Lt. Lalo Jaiteh and Others, two serving Lieutenants of the Gambia Armed Forces were
jointly charged with civilians for the offence of treason before the High Court. More
recently in 2009, in the case of the State v. Lt. General Tamba and 6 Others, a number of
civilians and a senior Police Officer jointly charged with treason in the High Court. More
importantly, since a court martial is officiated over by a judge of the superior courts, it is
not a subordinate court. Second, an appeal lies to the Gambia Court of Appeal from a
decision of the Court Martial by virtue of section 130 (2) of the Constitution. Invariably, few
appeals came from the judgments of the Court Martial to the Gambia Court of Appeal.

DECLARATION: I SALAUDEEN N. BABATUNDE, declare as follows:

1. I understand what plagiarism entails.


2. This material is a research work comprises of accessible online-materials, library books, lecturer’s notes and
assignment without reference in case this material goes out. It is not for sale but personal use.

Disclaimer: This material is purposely for reading and it includes research works gathered together with accessible
materials... therefore, don’t hold me liable for an act of plagiarism or copyright... total reliance on this material might lead to
failure. You’re therefore advised to visit your constitution for better understanding. Thanks