The Constitutional Law of the Gambia: 1965 - 2010

© 2011 by Ousman A.S. Jammeh. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse   11/08/2012

ISBN: 978-1-4670-0740-5 (sc)

ISBN: 978-1-4670-0741-2 (hc)

ISBN: 978-1-4670-0742-9 (e)

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CONTENTS

ACKNOWLEDGEMENT

PREFACE

FOREWORD

Chapter I Introduction

Chapter II Foundational Principles of Constitutionalism

Chapter III From Internal Self Government to Independence

Chapter IV First Republican Constitution 1970 - 1994

Chapter V The Second Republican Constitution—1997

Chapter VI Executive

Chapter VII Legislature

Chapter VIII Judiciary

Chapter IX Interpretation and Enforcement of the Constitution

Chapter X Fundamental Rights Enforcement

Chapter XI Judicial Review of Executive Action

Chapter XII Local Government

Chapter XIII Amendment of the Constitution

ACKNOWLEDGEMENT

I am personally indebted to several people whose names I omitted for obvious reasons for making this publication a reality. However, I am unreservedly thankful to the Almighty God for giving me the health and strength to embark on such a demanding task, especially during weekend breaks when attention to family is imperative. Indeed, such a demanding task may offend loved ones, especially those not amused by ones obsession with the computer, a maze of papers, files and books of reference. I would like to thank my spouse Aja Fatou Marenah Jammeh, (Tiana), and the children, Aisha (Mbisatou, Jr), Kawsu, and Fatima, for all your support and understanding.

I am eternally grateful to my late father and to my mother who is still with us, for their invaluable contribution to my life. Words alone could not express my gratitude for everything you have done for me. I would also like to thank Ms. M T B Cole, Aunty Bissola, retired Principal Registrar of The Gambia Court of Appeal and the Supreme Court respectively, for the updates on decisions of our Superior Courts. Indeed, some of the unreported Gambian cases initially featured in the online editions of two local newspapers ‘Foroyaa’ and ‘The Point’ respectively. I owe them a debt of gratitude for their invaluable service to non-resident readers like myself.

Similarly, I wish to thank Justice Hassan B. Jallow, a man of great wisdom and inimitable humility, for gracefully agreeing to write the foreword for this book. Similar sentiments go to A.A.B. Gaye, Esq, Dr. Alhaji B. Marong, Esq, A.N.M.O. Darboe, Esq, and Madam Hawa Kuru Sisay-Sabally, all undoubtedly eminent Gambian jurists, for their invaluable counsel and encouragement. To Dr. George Mugwanya, of the UN-ICTR, and formerly of the Faculty of Law, Makerere University, Kampala, Uganda, for being a source of much inspiration and encouragement in the course of researching several issues relating to this work. May long be your presence in our midst. Finally, I also wish to thank the publishers for their timely assistance and professionalism in making this publication a reality. I dedicate this book to the eternal memories of my late father, Alhaji Ousman Sarjo Jammeh, Bakono, our dear mother Aisatou Fatty, Mbisatou Snr, and brother, M.O.S. Jammeh, Ousman F. K. Njie, Uncle Freeya, and father-in-law, Alhaji Musa F. Marenah.

PREFACE

The idea of writing this book was first inspired by the establishment of the Supreme Court of The Gambia, in 1998, following the promulgation of the Second Republican Constitution on 16 January 1997. This Court has more than a symbolic significance of repatriating our final appellate court to The Gambia. It was equally an important political decision to sever the last sovereign ties with the Judicial Committee of the Privy Council in London, which decided the last appeal from The Gambia on 15 September 1998. However, by severing our judicial ties with such a respected and renowned trans-national Court, it was imperative to have a final appellate court that is manned by experienced judges with equally impeccable credentials.

Indeed, this Court has discharged this unenviable task in its formative years with unprecedented wisdom and distinction in laying the foundational pillars of our fundamental law, the Constitution, as the primary source of Gambian jurisprudence. However, the task of maintaining this trend in the evolution of our laws, including by interpretation, enforcement, adapting existing laws with necessary modifications, and its autonomy in reflecting the sovereign wishes of the majority of Gambians remains a formidable challenge. Indeed, as the fundamental and foundational law of the Republic, the Constitution must reflect that precedence over all others laws existing in The Gambia, including those yet to become law.

Second, after teaching law at that GTTI for about six years, my interest in teaching public law in general, and constitutional law in particular, became an added impetus to embark on the research for this publication. Indeed, the establishment of the Faculty of Law of the University of The Gambia was perhaps the final impetus to commence writing in 2008. In this regard, we have considered the beginning of republicanism in 1970, and the interruption from July 22 1994 to January 1997. Therefore, the interregnum from 1994 and 1997 has offered us another opportunity to create a second Republic in 1997. Consequently, students of law and the general readership should have a comparative analysis of the last 38 years of republican constitutionalism based on a general and critical review of the subject from a local perspective.

Third, a study of constitutional theory and practice in The Gambia will also require a comparative analysis of issues in jurisprudence of similar and developed legal systems especially within the Commonwealth, with whom we share a common legal tradition.

More importantly, even if our constitutional jurisprudence must reflect our peculiar realities and challenges, it is imperative that it conforms to norms, values and ethos that genuinely reflect the diverse aspirations of our people and indeed, acceptable practices in our sub-region and the wider international community. Therefore, all the views expressed in this work, with the exception of those acknowledged from academic and judicial pronouncements remain solely mine.

This book, therefore, offers a new narrative, that is comparative and an analytical study of the subject from a legal, historical, and contemporary perspective. It is also a pioneering effort in the continuing debate of an infinite, but mundane subject, which could inspire a more intense discourse by all stakeholders including Gambians of the Diaspora. Indeed, it is incumbent on every one to protect the supremacy of the Constitution. Furthermore, every Gambian has a duty to understand and to cherish our fundamental law notwithstanding its imperfections. In short, it only creates, or more generously presupposes, that the sovereign people of The Gambia have established a government of laws, not of men.

26 July 2011

Bakau New Town

The Gambia

FOREWORD

I feel greatly honoured to have been invited by Ousman to do the forword to this commendable work titled The Constitutional Law of the Gambia: 1965-2010. An invitation I have accepted with great pleasure.

It is today widely acknowledged that good governance in its broadest sense encompassing respect for the rule of law, the principles of democracy, human rights and the promotion of social justice is the most secure for foundation peace with progress in any community. Constitution and constitutionalism above all lie at the heart of good governance.

Despite its importance to lawyers and laymen alike, the constitutional history and framework of the Gambia has attracted relatively little scholarly attention and publication. There is a dearth of published literature on the subject. All citizens have a duty to defend the constitution; the discharge of such a duty is facilitated undoubtedly by greater understanding of what is sought to be protected. Ousman’s work will undoubtedly contribute immensely in both plugging that lacuna in the relevant literature as well as in promoting greater knowledge and awareness of the constitutional evolution of The Gambia.

With a great passion for constitutionalism and a deep knowledge of the subject, Ousman skillfully steers us through the various constitutional arrangements in The Gambia from colonial times, the immediate post-independence period into the first and second republics not only with a description of the legal framework but with an in-depth analysis which highlights the management of critical issues of governance during those times. In this commendable work, constitutional theory is supplemented with practice, particularly the judicial interpretation by Gambian courts of important constitutional provisions and principles. References to foreign judicial decisions within common law system also contribute to enriching the analysis of Gambian constitutional history and framework.

The institutions of State such as the Executive, the Legislature and the Judiciary as well as important issues such as the interpretation and enforcement of the constitution, the scheme for protection of fundamental rights and freedoms as well as the exercise of the power of judicial review of administrative action receive the meticulous attention of the author.

The Constitutional Law of the Gambia 1965-2010 is a very welcome and very useful publication for all who wish to be familiar with the Gambia’s constitutional history as well as its constitutional framework for governance. I recommend it wholeheartedly. Ousman is to be commended for his pioneering role in this field.

Justice Hassan Bubacar Jallow

Arusha, Tanzania.

30th June 2011

Table of Gambian cases

1.   Abdulrasheed Muhammed v. The State [Misc. Applc. No 24/1994] (SC)

2.   Alhaji Ousainou Jeng (Trading as Elhaj B.O.M. Jeng & Sons) v. Gambia Commercial and Development Bank & AMRC, Civ. Appl. No.4/1999 (Supreme Court)

3.   Alieu Badara Cham v. The Attorney General, Civil Appeal. No. 10/1998 (Ruling of 18 June 1999) (GCA)

4.   Attorney General v. Horst Sommer & Luis Diaz de Losada Construction Company Limited, [Civil Suit No.61 of 1988 and Suit 62 of 1988]

5.   Attorney General (Gambia) v Momodou Jobe, Privy Council Appeal No.39 /1982

6.   AG v. Pap Cheyassin O. Secka (GCA) Civ. Appl. No.30 /2006-Decision of 23 July 2008

7.   Bidwell v. Elliot & AG, (civil Appeal No.1/ 1988) (GCA) GR. 1960-93 pp.247,254.

8.   Baboucarr Gaye v The I.G.P., Crim. Appeal No.58/1998

9.   Babucar Gai v AG, Civil Suit No.369/1994

10.   Boye v Baldeh [2001] Supreme Court, [1997-2001] GR 861.

11.   Bully Sanneh and Others v The State, GCA, Crim App. No.26/82.

12.   Ceesay (Alhaji P.H.) v. Lamin Camara & The Attorney General (2004) (HC)

13.   Continent Bank Ltd. v. Central Bank of The Gambia & The Attorney General (Civil Suit No. 120/1991 & 27/1992. C.No.12 & 13) (SC) (Unreported) Judgment of 11 May 1993.

14.   Darbo v. Attorney General (Misc./Ref., No.2/1997 & Misc. Applc. No.1/96

15.   Dawda Ndure v PSC & AG, [Civ. Suit. No.168/97]

16.   Demba Alieu Jack, v the Attorney General, Misc Appl. No.7/98 High Court

17.   Fafa E Mbai vs The Commission of Inquiry into Financial Activities of Government Departments and Line Ministries. Civil Suit (Misc. Applic. No. 294/1995 M.No.15 (unreported) Ruling of 12 March 1995.

18.   Fasaikou Jabbi v. Kebba Fanta Koma, AG & Ors [Civil Application No.4/2000] (Sup. Court).

19.   Gambia Press Union v. National Media Commission & others. Civil Suit No… 2003 (SC)

20.   Clarke & Garrison v. AG & Others. Misc. Application No.13/1992 (SC) (GR-1960-93, p.99

21.   Harding v. Harding (GCA) Civil Appeal No.2/1998[1997-2001] GR 314.

22.   Hon. Halifa Sallah & Three Others v. Clerk of the National Assembly & 2 Others, SCC No.1/2005(SC) Decision of 7 July, 2005

23.   Idohga & Ors v The State, (unreported Decision) HC (1995)

24.   I.G.P. v. Adiamoh, (unreported Decision) Kanifing Mag. Court. (2009).

25.   I.G.P. v. Fatou Jawo Manneh, 2008 Kanifing Mag.Court (Unreported).

26.   I.G.P v. Femi Peters, KMC CC/296/2009.

27.   I.G.P. v. Lamin Fatty (2007) (unreported decision) Kanifing Magistrates’ Court

28.   I.G.P. v. Musa Suso (2000) (unreported decision).Bundung Magistrates’ Court.

29.   Independent Electoral Commission v AG. SC (Civil Suit No.2 /2000) [1997-2001] GR 63

30.   Inspector Kabba Tunkara & Others v The State, GCA (Crim App. No 4/84).

31.   In the matter of Memba Sonko & 8 Ors. And the Lower Badibou Group Tribunal, Misc. Appl. No.19/91 (Decision of 25 April 1991) SC—Order of certiorari.

32.   Isatou Combeh Njie v The Attorney General, SCCS No.1/2000 (Supreme Court)

33.   Jabbi v Kebba Fanta Koma, (Civil Appeal No.4/2000); [1997-2001] GR 591

34.   Jaiteh v. Jaiteh, (No.2) (1997-2001) GR 565 (Supreme Court)

35.   Jallow (Momodou S.) v. The Secretary of State for Local Government and Lands, [2004] HC—Misc. Application [2004].(IzuakoJ.)

36.   Jawneh v. A.C.P. Siyaka Sonko & AG [Civil Suit No.266/1988]

37.   Jobarteh v Gambia Telecommunications Company Ltd, [1999] (Unreported decision)

38.   Jobe (Tijan) v. AG (Misc. Appln No.23/98) Decision of 16 March 2001.(High Court)

39.   Kanyiba Kanyi v The State, (Misc/Applc-2006).

40.   Kanteh & 3 Others v The State, Crim. App. No.12-15/1997, [GCA] Judgment of 2 Oct. 1997.

41.   Kantong Fatty (alias Kachang Boy & others, [unreported] 1982

42.   Kemesseng Jammeh (Hon) v. The Attorney General, Civil Suit No3/2000 (SC)

43.   Kemesseng Jammeh (Hon) v. The Attorney General, No.2. Civil Suit, No. 4/2004 (SC)

44.   Kemo Fofana v. Commissioner of Police & AG, Civ. Appl No.20/85

45.   Kijera v GIA (Unreported decisions of the High Court, per A.K. Savage J.)

46.   Lamin Jammeh v. Jarra West District Tribunal, (Civ. Ref. No. 1 of 2000. (SC)

47.   L.K. Saho v. IGP (Misc.App. No.1/96. GCA,

48.   Lamin Waa Juwara v The State, (unreported decision)

49.   Luis Diaz De Losada Company Ltd v. The Attorney General [civil suit No.62/1988]

50.   Media Foundation for West Africa (Manneh v. The Gambia, ECCJ—Decision of 5 December 2008. (Abuja—Nigeria)

51.   Malick Leigh v. The Attorney General, (unreported decision)(1999)

52.   Mariam Jack Denton v. The Attorney General & Ors.[Unreported—24 July 2006] (HC)

53.   Morro Corrah v. PSC & AG,[Civ. Suit No.97/98] (HC)

54.   Musa Ceesay & Others v The State, GCA Crim. App.No.29/82

55.   Ndambu Drammeh v. Commissioner of Police & AG (Civ. Appl. No.5A/84) (GCA)

56.   Njie (Isatou Kombeh) v. The Attorney General (SC No.1/2000 (Supreme Court)

57.   Njie (Janko) v. Jallow and AG, (Civil Appeals No’s.25/34/&39/1995 (GCA)

58.   Omar Jallow (O.J.) v The Attorney General, Civil Suit No.12 /99, (High Court).

59.   Ousman Rambo Jatta v. IGP & Anor.[ unreported decision 2006] (HC)

60.   Pa Sallah Jagne v The State, the Applicant, Civil Appeal No.2 of 1995, GCA. (Unreported Judgment of 18 July 1995)

61.   Pa Sallah Jeng v The Secretary of State for Local Government & AG (Misc. Applc. No.330005/114/F/2005. (Decision of 19 December, 2005) (HC).

62.   Peters (Femi) v. The State, HC 195/10/CR/075/BO (Crim. Appeal).

63.   Prempeh v The Minister of the Interior & the AG (Civ. Suit, No.14/1986 (SC)-(24.06.86).

64.   Re: Lamin Juwara and Ors v The Attorney General, (Misc.Appl. No.20/1998)

65.   Sabally v. IGP & Others. [Civil Ref. No.1 2001] (SC).

66.   Saihou Sisay v. AMRC & AG, & Saidou Sowe v.AMRC & AG, Civil Appeals No.16/94; No.14, 15/1994.

67.   Saidykhan v. The Gambia (Ecowas Comm. Court of Justice) (Abuja) 2009

68.   Sanneh v GIA, (Unreported Judgment of High Court-2006)

69.   Secka (Pap Cheyassin) v. The Attorney General. Misc. Appl. No. HC 112/2005

70.   Shyngle Nyassi v The IGP & Anor, [unreported]-[10/06/1999] HC.

71.   Sir Dawda K. Jawara v. The Gambia. Comm. No. 145/95 and 147/95, ACHPR (1995)

72.   Soma Jallow Juwara v. the Attorney General & 3 ors. (Misc. Appl. No.18 &19/1998)

73.   The State v. Abdoulie Conteh, [Crim. Appeal No.4/2006] GCA

74.   The State v. Baba K. Jobe & Anor, CC.No11/2003 (HC)

75.   The State v. Brig. Gen. Tamba & 6 Ors.[Unreported] (HC) Judgment 15/06/2010

76.   The State v. Ebrima Barrow & 3 Ors. [Crim. Case. No.26/2000] HC.

77.   The State v. Insp. Kinteh & 2 Ors.[GCA] Crim. Appls. No’s.2/3/4/1992 (GCA)

78.   The State v. Lang Konteh, [Crim.case—2006].HC

79.   The State v. Omar Marong, [Crim. Appeal No.12/85.] GCA

80.   The State v. Pap Saine & 5 Ors,[HC 209/09/CR/046/AO]

81.   The State v. Sana Sabally & Anor. [1995] GCM/GNA (General Court Martial)

82.   The State v Sheriff M. Dibba & Ors, Crim. Appl. No.29/1982 GCA

83.   The State v. Tamba (Brig. Gen.) & Fofana (R/Admiral) [CC/HC/153/10CR/058]AO (HC)

84.   Wadda & Attorney General v Kabba (Civ. Appeals. No.22,23/1990)

85.   United Democratic Party & 2 Others v. The Attorney General, (S.C).Civ.Suit, No.3/2000 Ruling of 22 March, 2001.

86.   United Democratic Party & 2 Others v. The AG & IEC, (SC) Civil Suit, No. 4/2007

87.   Wassa Janneh v. The IGP & Anors, (1998) (unreported decision) (HC)

88.   West Coast Air v. Gambia Civil Aviation Authority & AG, Privy Council Appeal [No.64 of 1997]

Table of Foreign Cases

1.   Akintola v. Adegbenro [1962] All NLR 442 (Nigeria)

2.   Adegbenro v. Akintola (1962) 1 All NLR 465 (Nigeria) (PC)

3.   American Cynamide Co v.Ethicon Ltd [1975] 1 All ER 504, HL, (UK)

4.   Anyebe v The State [1986] 1 N.W.L.R. (Pt-140 at pg 39 (Nigeria)

5.   Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147.

6.   Antigua Times v. Attorney General, [1976] AC, 16, 25-28. (PC)

7.   Attorney General for Alberta v Attorney General for Canada AG—Alberta v. AG—Canada, (1947) AC 503.

8.   AG of the Federation v. AG of Imo State & Others—[1984]

N.C.L.R. 178) (Nigeria)

9.   Attorney-General of Kaduna State v Hassan [1985] 2 N.W.L.R. (PT 8,) 483

10.   Attorney General for Lagos State v. Ojuku (SC) 1986, 1 NWLR (Part 18) page 621

11.   AG of Saint Christopher, Nevis & Anguilla v Reynolds, [1980] AC. 637,(PC)

12.   Cassel & Co.Ltd. v. Broome (No.2) [1972] 2 All ER 849

13.   Chief Constable of North Wales Police v. Evans [1982] 1 WLR, 1155 (UK)

14.   Cohens v. Virginia 19 U.S (6 Wheat.) 264, 399, 5 L. Ed.257 (1821).(USA)

15.   Council for the Civil Service Union v Secretary of State for the Civil Service, sub norm; GCHQ, 1984 AC.

16.   Doherty v. Allman (1878)3 AC, 709 (England)

17.   Fawehinmi v Abacha, (1996) 4 NWLR (PT 475) 710

18.   Fawehinmi v. Akilu & Another [1989] 2 NWLR, p 122

19.   Gairy v. Attorney General (PC) [2001] 3 WLR 779

20.   Garba v Federal Civil Service Commission of Nigeria (1988)1 NWLR (Pt. 71) 449

21.   Ghana Bar Association v. Attorney General (Abban case) [1995-96]1GLR 598

22.   Griswold v Connecticut, 381 U.S. 479 (1965).

23.   Haddijatou Mani Kouraou v. Niger [Application No. ECW/CCJ/APP/08/2008-Judgment No. ECW/CCJ/JUD/06/2008 (Ecowas Court)

24.   Hector v. Attorney General of Antigua & Barbuda[ 1990] 2 AC 312; 2 All ER, 103 (PC)

25.   Hoffman—La Roche & Co AG v. Secretary of State for Trade and Industry[1974] 2 All ER 1128, HL (UK)

26.   International General Electricity Company of New York Ltd and Another v The Commissioner of Customs and Excise, [1962] 2 All E.R. 398

27.   Jaundoo v. Attorney General of Guyana (1971) 16 WIR 141[1971] AC 972 (PC)

28.   Kivumbi v AG of Uganda, Const. Petition No.9 of 2005[2008] UGCC 4 (27 May 2008)

29.   Ladd v Marshall [1954]1 WLR 1489 (UK)

30.   Lake v The AG of Antigua & Barbuda & others, Privy Council Appeal No.58 of 1997

31.   Lakammi v Attorney General of Western Nigeria & Anor, S. C. No.58/1969 (Unreported) & Western Nigeria C.A.W. 35/68 (WSCA) (Unreported)

32.   Lekwot & 6 Others v. Nigeria (ACHPR) Comm. No. 87/93 & (1993)2 NWLR (Pt. 296) 410.

33.   Loh Kooi Choon v Government of Malaysia: [1977] 2 MLJ 187 (Fed. Court) (Malaysia)

34.   Madzimbamuto v Lardner-Burke [1969] AC 645 (PC) (Zimbabwe)

35.   Marbury v Madison [ 5 U.S. 137 (Cranch) (1803). (United States)

36.   McCullough v Maryland (1819) 4 Wheat 316 at 407 (US) Supreme Court.

37.   Minister of Home Affairs v Fisher [1979] 3 All ER 21 at pg. 26 PC (Bermuda)

38.   Michelot Yogogombaye v. The Republic of Senegal, Application No.001/2008 (African Court of Justice, Arusha, Tanzania), Decision of 15 December 2009.

39.   Nafiu Rabiu v The State, [1981] 2 NCLR 293 (Nigeria)

40.   Nasiru Bello & Ors v AG of Oyo State (1986) 4 NWLR, (pt 45) at Pg 828

41.   New Patriotic Party v. Attorney General of Ghana, [1993-94] 2 GLR, 35

42.   New York Times Co. v. Sullivan[1964] 376 U.S. 254

43.   Nyali v Attorney General of Kenya [1956] 1 All ER 646, 653

44.   Obadara v. Commissioner of Police, 1965 N.M.L.R, 39, 42 (Nigeria)

45.   Padfield v Minister of Agriculture, (1968) AC 99 (UK)

46.   Paul Ssemowogerere & Ors v Attorney General of Uganda No.3, Reported in [2004] 2 EA Digest of Constitutional cases. Pg 247

47.   Pepper (Inspector of Taxes) v. Hart [1993] AC 593 (UK) (HL)

48.   Registered Trustees of the Constitutional Rights Project v. The President of the Federal Republic of Nigeria (Suit No. M/102/93 of 5 May, 1993

49.   Republic of Fiji v Prasad, Court of Appeal of Fiji, 1 March 2001, Civil Appeal No. ABU—0078/2000S). (Unreported)

50.   R v. Chief Justice of Kenya and Others ex p. Lady Justice Roselyn Naliaka Nambuye, Misc. Civ. Case, No.764 /2004 (HC) (Kenya)

51.   R. v. Inland Revenue Commissioners, ex parte. National Federation of Self Employed & Small Business Ltd[1982] AC. 617, 854. (UK)

52.   R. v. Medical Appeals Tribunal, ex p. Gilmore [1957] 1 AC 74 (UK)

53.   R v. Secretary of State for Trade and Industry, ex p. Lonrho, [1989] 1 WLR 525 (UK)

54.   Re Petition of Hon. M.T. Somare [1981] PNGLR, 265 (Papua New Guinea)

55.   Re, The Central Provinces & Behar Act, 1938, AIR (India) FC 1.

56.   Ridge v Baldwin, 1964 AC, 40 (UK)

57.   R.M.D.Chamarbaugwaklla v.Union of India (1947) S.C.R. 930

58.   Roncarelli v Duplessis (1959) 16 DLR (2d) 689 Canada.

59.   Rowjee v State of Andhra Pradesh AIR 1964 SC (India) 962.

60.   S v. Zuma and Others [1995] (2) SA 642, 14 (South Africa)

61.   Schmidt v. The Secretary of State for the Home Department [1969] CA, 2 CH. 149.(UK)

62.   Senator Abraham Adesanya v. The President of the Federal Republic of Nigeria & Hon. V.O. Whiskey [ Suit No.1 /1991] (SC) Nigeria

63.   South Dakota v North Carolina 192 US 268 [1940]

64.   South African National Defence Force Union v. Minister of Defence and Another [1999] ZACC 7; 1999 (4) SA 469 (CC)

65.   South East Asia Fire Bricks Sdn Bhd v Non Metallic Mineral Products Manufacturing Employees Union, [1981] AC, (PC) page, 210 [Malaysia]

66.   Three Rivers District Council v Bank of England [2004] UKHL Appeal No. 48/2002.(UK)

67.   The Peoples Union for Democratic Rights v. The Union of India [1982] AIR, 1473-1477-1478

68.   The Prosecutor v. Jean Bosco Barayagwiza Case. No. ICTR-97-AR72 31 March 2000. (UN-ICTR)

69.   The State v Dosso [1958] 2 PSCR 180 (Pakistan)

70.   The State v Nafiu Rabiu (1981) 2 NCLR 293

71.   The State v. Petrus and Another [1985] LRC (Const) 699; Court of Appeal, Botswana,45

72.   The Queen v Big M Drugmart Ltd (others intervening) [1986] LRC (Const.)332 (Canada)

73.   Taylor v. National Assistance Board [1957 ] AC 101

74.   Tuffour v. Attorney General of Ghana [1980] GLR 637, SC

75.   Thomas [Endell] v. Attorney General of Trinidad & Tobago, [1982] AC 113, at 135.

76.   Underhill and Another v Minister of Food, [1951] 1 All E.R. 591

77.   Uganda v Commissionner of Prisons, Ex parte Matovu [1966] EA 514.

78.   Williams Construction Ltd v. AG of Barbados, Privy Council Appeal No.24 of 1993; [1995] 1WLR 102

Table of Statutes

1.   Assets Evaluation & Prevention of Corrupt Practices Act, 1982

2.   Assets Management & Recoveries Corporation Act (No.23 of 1992)

3.   Commissions of Inquiries Act, (Cap 30.01)

4.   Criminal Code (Cap 10.01)

5.   Criminal Procedure Code (11.01)

6.   District Tribunals Act, (Cap 6.03)

7.   Evidence Act (No.14 of 1994) Cap.6.06

8.   Finance and Audit Act, (Cap.75:01)

9.   Gambia Armed Forces Act: Cap 19.01 (1985)

10.   Indemnity Act (Cap.23:01)

11.   Interpretation Act (Cap. 4:01)

12.   Land Acquisition and Compensation Act, (57:06)

13.   Lands (Provinces) Act, Cap.57:03

14.   Law of England (Application) Act (Cap. 5:01)

15.   Law Officers Act (Cap 7.02)

16.   Legal Aid Act (2008) (Cap.6:07)

17.   Legal Practitioners Act, (Cap 7.01)

18.   Local Government Act, (Cap. 13:01)

19.   Nationality and Citizenship Act, (Cap.16:01)

20.   National Media Commission Act, No.5 of 2001

21.   Official Secrets Act, (Cap.17:01)

22.   Ombudsman Act (1999) (Cap.7:08)

23.   Police Act (Cap.18:01)

24.   Former Presidents (Offices, Allowances & Other Benefits) Act (Cap.36:13)

25.   Public Order Act, (Cap.22:01)

26.   State Lands Act (1991) (Cap 57:02)

27.   Lands (Regions) Act (Cap.57:03)

28.   Special Criminal Court Act (No.10/1979) (Repealed)

29.   Ministers (Statutory Powers & Miscellaneous Provisions) Act,

Cap 2:01)

30.   Subordinate Courts (Civil Proceedings) Act, (Cap 8.02)

31.   The Courts Act (Cap 6.01)

32.   The Gambia Court of Appeal Act (Cap 6.02)

33.   The Gambia Independence (Order In Council) (1965) (UK)

34.   The Protectorate Ordinance, 1889

35.   The Supreme Court Act (1998) (Cap.6:05)

Chapter I

INTRODUCTION

THE GAMBIA is one of five English-speaking countries in West Africa and one of the oldest former colonies of Britain in Africa. The territory had contact with several European trading nations, including Portugal, France and Britain from the middle of the 15th century and subsequently became a British colony in 1816. Letters Patent severed it from Sierra Leone, to become a separate Colony in 1843. It also had a separate Governor in 1888. The protectorate of The Gambia came into existence in 1894.¹ The Colony expanded in 1902 and retained that status until the introduction of self-governing constitution in 1962, and finally, independence under a new Constitution in 1965. The Gambia is the last Anglophone West African colony to attain political independence on February 18 1965,² and the republican status on 24 April 1970, following that of Ghana, the Federal Republic of Nigeria, and Sierra Leone.³

Territorially, The Gambia is the smallest country in Africa occupying a landmass of about 11 295 square miles, and a population of about 1.5 million according to recent demographic figures. A river from which it took the name Gambia, divides the country between North and South, while the former French colony of Senegal surrounds its entire landmass except along the coast of the Atlantic Ocean. The Gambia is ethnically diverse, and yet significantly homogenous, given the long history of intermarriages, fostering and social cohesion.⁴ Islam is the predominant faith embraced by nearly all the major ethnic groups of The Gambia, and hence serves as another catalyst for unity in diversity. Indeed, the inter faith harmony with the Christian community is an envy of many countries in the sub-region and beyond.

The Gambia’s economy is mainly agricultural with groundnut as the dominant export crop, and raw cotton and horticultural produce as minor exports. Imported rice, from South East Asia, supplements the locally produced varieties as the main stable food. About 75 percent of the active labour force is engaged in agriculture. However, the country has been experiencing a rapid rate of urbanization in recent decades despite having little or nor manufacturing industries or commercially valuable minerals. Similarly, tourism has become a major foreign exchange earner from late 1960’s, despite global setbacks in that industry. The calm sandy beaches on Atlantic coastline attract a significant numbers of West European and Scandinavian tourists compared to other West African destinations, due largely to the relative proximity of just about six hours flight time from the United Kingdom and other European destinations. In addition, the export of seafood products to the European Union and Asia has diversified in the last twenty years.

Until a military coup d’etat in 1994 disrupted constitutional order, and ushered in a two-year interregnum of military rule, The Gambia arguably held the record as the longest surviving multi-party democracy in Africa.⁵ The country reverted to civilian rule on 16 January 1997, under the same military-turned civilian leadership, which contested elections on a civilian platform.⁶ Our Constitutional set-up, a legacy of British rule, includes the introduction of the common law and doctrines of equity, which supplanted most of our customary law since the reception dating from November 1888.⁷ Prior contact with Islam has also left an indelible effect on Gambian customary law, which is now the dominant source of personal law for the majority of Gambians who profess the Islamic faith.

At independence, The Gambia adopted the Westminster parliamentary system of government just like most former British Colonies in Africa and elsewhere in the Commonwealth, with a Governor General, as Head of State, and a Prime Minister, as Head of Government. The Westminster system remained the basic form of constitutional government for the first five years, but replaced by the Executive Presidential system in April 1970, upon attainment Republican status.⁸ Therefore, the Republican Constitution of 1970 unified the office of Head of State and Government into an Executive Presidency, and abolished the office of Governor General, as Head of State and representative of Her Majesty the Queen.⁹

But in fact what the 1970 settlement endowed the country with was in the nature of a hybrid and unique system of government, in which cabinet ministers were either elected or nominated from parliament.¹⁰ Parliament acting as an electoral college, indirectly elected the President as leader of largest political party in the legislature, until 1982, when a direct mandate was introduced through a constitutional amendment for election to the office of President.¹¹ The Second Republican Constitution in 1997 introduced a complete shift to an Executive Presidential system of Government, with similar features, but not the same institutional checks and balances as that of the Republic of Ghana or Sierra Leone.¹² Under the current Constitution, the Vice President and all Cabinet Ministers are appointed from outside Parliament. However, features of the former system, such as, a single chamber legislature, with 48 elected members and the election of the President based on direct popular mandate retained.

The First Republican Constitution was, therefore, a hybrid system which was neither fully parliamentary, nor an executive presidential system like Nigeria, or the United States. Despite having most attributes of the conventional Presidential system, it also retained some salient features of the cabinet system of government. The Second Republican Constitution, on the other hand, brought about a greater institutional, if not, a more formal separation of powers rather than a hybrid one. This reflects in the appointment of all members of the Cabinet outside the National Assembly, the legislature. However, the retention of a modified Presidential system remains significant because it lacked some of checks and balances found in the classical US presidential system. Furthermore, the efficacy of our present constitution remains open to informed scholarly debate while we post mortem the first Republican Constitution. This comparative debate is imperative.¹³

The National Assembly, which is a successor to the House of Representatives in the first Republic, also had some changes under the present Constitution with an increased membership in single member constituency representation to 48. It also proscribed cross carpeting, a practice that use to facilitate switching of party loyalties without a renewed mandate of the electorate. Among the new challenges however, is the lack of security of tenure of its members on the majority side of the legislature.¹⁴ All Nominated Members of the National Assembly are Presidential appointees. The National Assembly elects the Speaker and Deputy Speaker, from the five Nominated Members.¹⁵ The Clerk of the National Assembly, who is a public servant, heads the parliamentary administrative service.¹⁶

The Judiciary has largely remained the same, much as it was under the First Republic except that local a Supreme Court has replaced the final Appellate Court, the Judicial Committee of the Privy Council. However, scholars and observers of the functional independence of the judiciary, and by extension, adherence to the rule of law, will no doubt derive some knowledge from a comparative debate of the pre-1994 and post 1997 era. Indeed, The Gambia was the envy of most African and non-African constitutional democracies prior to the military intervention.¹⁷ However, the task of maintaining such a respectable and reputable status remains a challenge for the judiciary, the bar and all citizens who cherish the rule of law.

The President, in consultation with the Judicial Service Commission, appoints the Chief Justice. The Chief Justice is the constitutional head of the judiciary. The President appoints all other superior court judges on the recommendation of the Judicial Service Commission.¹⁸ These include; Justices of the Supreme Court, Justices of the Court of Appeal, and Judges of the High Court, all of which constitute the superior courts. By a Constitutional amendment in 2000, the President also appoints the Judicial Secretary, as the head of the judicial administration.¹⁹

However, of much legal and historical significance is that the Judicial Committee of the Privy Council, in London, which was The Gambia’s highest and final appellate court ceased to exercise that jurisdiction in 1998.²⁰ The newly established Supreme Court saw the repatriation of the highest and final tribunal for determining the course of Gambian jurisprudence and the maintenance of the rule of law under the Constitution. Inevitably, therefore, discussion and analysis of Gambian case law in this work will inter-changeably refer to both the First and Second Republican Constitutions, and focus on the provisions, which require judicial interpretation, enforcement, adaptation, modification, or review as the case may be.²¹

Both Constitutions have generated immense legal discourse through litigation, reference and review, including issues of interpretation, enforcement of rights, review of executive action, which were, or will be the focus of our analysis of the development of our public law and constitutionalism in The Gambia.²² A discussion of such an important and fundamental legal and political development will be incomplete without the simultaneous analysis of the military interregnum, which temporarily disrupted constitutional rule between July 1994 and January 1997. The effect of this development was a complete negation of