Difference between revisions of "Gambia, The"
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- The Legislature; and
- The Legislature; and
- The Judiciary.
- The Judiciary.
= The Gambian Legal System=
= The Gambian Legal System=
Revision as of 16:14, 7 December 2017
The Gambia is the smallest country on the African mainland. It stretches 450 km along the Gambia River. Its 11,285 sq. km area is surrounded by Senegal, except for a 60 km Atlantic Ocean front. Although the smallest country on the African continent it is also a hub for trade in the region due to its geographic location. The country has a population of 2 million, with a fairly high average rate of growth of 2.8% per year over the last decade. With 177 people per square kilometer, it is one of the most densely populated countries in Africa. Most of the population (57%) is concentrated around urban and peri-urban centers.1
The 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% of 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
The December 2016 presidential election, won by opposition coalition leader Adama Barrow, brought hope for improved respect for human rights and the rule of law. Barrow defeated incumbent Yayah Jammeh who had held power since a 1994 coup and whose government had a long track record of using enforced disappearances, torture, intimidation, and arbitrary arrests to silence opposition voices. While the two-week election campaign was peaceful, with security forces largely respecting opposition parties’ rights to freedom of expression and assembly, the lead up to the campaign was characterized by the intimidation of political opponents and the government’s use of state media and resources to promote Jammeh’s candidacy.
In April 2017, prominent opposition leader Solo Sandeng was beaten to death in state custody, ushering in an often-violent government crackdown on Gambia’s largest opposition party, the United Democratic Party (UDP). More than 90 opposition activists were detained for participating in peaceful protests and 30 incarcerated for three-year terms, including the leadership of the UDP. Gambian security forces, particularly the National Intelligence Agency (NIA) and Police Intervention Unit (PIU), also arrested and detained civil society activists, religious leaders, trade unionists, and journalists.
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:
- The Executive; - The Legislature; and - The Judiciary.
- 1 The Gambian Legal System
- 2 Legal Aid in the Gambia
- 3 Sources of Defendant's Rights
- 4 Rights of the Accused
- 5 Emergency Law
- 6 Quickfacts
The Gambian Legal System
The Gambian legal system, similar to most West African Countries, is a tripartite system consisting of the English common law (equity and statute law) customary law (applied by Tribunals) and Sharia law (administered by a Cadi court system). Customary and Sharia law applies to indigenous Gambians and/or Muslims.
The Gambian Court System
The court structure in the Gambia is as follows:
The Supreme Court: This is the highest court of law in the Gambia and is constituted by an uneven number of not less than five judges and presided over by the Chief Justice;
The Gambia Court of Appeal: This court is presided over by the President of the Court of Appeal and is constituted by three judges;
The High Court: Known as the Supreme Court before 1997: Constituted by a single Judge with three judges presiding in treason trials; and
The Special Criminal Court and Subordinate Courts: These consists of the Magistrates Court, District Tribunals, Cadi Courts and such lower courts or tribunals that may be established by an Act of Assembly.3
General Jurisdictional Issues
The different courts in the Gambia have different jurisdictional parameters and this is set out in Chapter VII of the Gambian Constitution.
Apart from the High Court and the Special Criminal Court, the superior courts (the Supreme Court and the Court of Appeal) 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.
Courts of first instance (jurisdiction to hear matters at first instance) will in general be the following:
- The High Court;
- The Special Criminal Court (Jurisdiction to determine all criminal offences of theft relating to public property and public funds);
- The Magistrates Court;
- The District Tribunals;
- The 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.
Court Connected Alternative Dispute Resolution (ADR)4
Court Connected ADR was introduced as a Mechanism to settle disputes in conjunction with the normal courts with a view to enhance effective and efficient justice delivery. It was introduced to decongest the backlog of cases in the country and help the parties to resolve disputes within a short time and at low cost.The Court Connected ADR Practice Direction No. 1 of 2013 was made in September, 2013 and created a Unit under the Office of the Master.
A Trial Judge/Magistrate/Cadi decides which cases to refer to the court connecter ADR. Courts are expected to check whether cases are suitable for Court connected ADR. The Judge, Magistrate or Cadi initially encourages parties to settle out of court by explaining the benefits of out of court settlement or mediation and assures them of the right to court trial should they fail to reach a settlement.
When the parties consent to mediation, it is recorded as part of the proceedings. The court then fixes a time for the mediation and refers the suit to the Office of the Master. Depending on the outcome of the mediation, the case file is sent back to the court for either judgment entry as agreed by the parties or for continuation of hearing if they fail to reach an agreement.
Legal Aid in the Gambia
Prior to 2008 legal aid was restricted to persons charged with offences punishable with either the death penalty or life imprisonment, as provided for by the Poor Persons Defence (Capital Charges) Act 1993 and section 24 (3) of the 1997 Constitution. This situation was reversed in the case of children by the advent of the Children’s Act in 2005, which guarantees legal aid for all children in conflict with the law and those whose rights are at stake.
Current Provisions for Legal Aid
The Legal Aid Act of 2008 (LAA 2008) was enacted in November 2008. Following this legal aid is available to all indigent persons. The Government of the Gambia, in passing the LAA 2008, is now required to provide legal aid, that is, lawyers for free to poor and vulnerable persons held in police stations and prisons as well as those appearing in court, in criminal matters and in civil suits. Legal aid is also to be provided for all persons – where such persons are facing the death sentence or life imprisonment as required by the 1997 Constitution. Through the LAA 2008 and the Children’s Act of 2005, children are also entitled to legal aid.5
The Gambian Constitution also provides in Article 24(3) that where a person is charged with an offence which carries a punishment of death or imprisonment for life, that person shall be entitled to legal aid at the expense of the State.6
The LAA 2008 extends the scope of legal aid to include legal advice given by a lawyer to his/her client as well as efforts to secure alternative methods of dispute resolution, plea bargaining and out of court settlement.
Essentially, legal aid can now be given in court at the trial stage and all levels of appeal, police station, prisons as well as at the National Agency for Legal Aid (NALA). In addition, legal aid is now available during proceedings at the District Tribunals thus making the statutory restriction on lawyers from representing clients at that level untenable.
Sources of Defendant's Rights
Defendant's rights are set out in Chapter IV of the Gambian Constitution [specifically Article 24(3)] and criminal law in the Gambia is further administered under the Gambian Criminal Code (Act No. 25 of 1933).7
The Gambia is a member of the United Nations and the African Union. It has ratified a number of UN Human Rights Conventions and thus has made binding international commitments to adhere to the standards laid down in these universal human rights documents. These include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as well as the Convention on the Rights of the Child (CRC).
In as far as Gambia has ratified the Optional Protocols for UN Human Rights Conventions or has accepted the Competence of the corresponding UN Treaty Bodies, the inhabitants of Gambia and their representatives are able to invoke their human rights through these bodies. All inhabitants of Gambia may turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations.
Since Gambia is a member state of UNESCO, its citizens may use the UNESCO procedure for human rights violations in UNESCO's fields of mandate. Employers' or workers' and certain other organizations (not individuals) of Gambia may file complaints through the ILO procedure in the cases of those conventions which Gambia has ratified. Since Gambia is an AU member, its citizens and NGOs may file complaints to the African Commission on Human and Peoples’ Rights.8
The Gambia accepted, with reservations, the International Criminal Court of Justice’s compulsory jurisdiction and includes subsidiary legislative instruments enacted locally. The Gambia however notified the UN Secretary-General of its withdrawal from the International Criminal Court on November 10, 2017 although President Barrow subsequently promised to reverse it. On 20 September 2017 President Barrow signed a UN treaty on the abolition of capital punishment called the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
Rights of the Accused
Right to Liberty and Security of the Person
Every person shall have the right to liberty and security of person and shall not be subjected to arbitrary, arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.9
Right to be Informed Timeously of Reason for Arrest or Detention
Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she can understands, of the reasons for his or her arrest or detention and of his or her right to consult a legal practitioner.10
The Right to be Presumed Innocent
Every person charged with an offence shall be presumed innocent until he or she is proved or has pleaded guilty.11
Charged in a Language he/she Understands
Every person charged with an offence 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.12
Preparation for his/her Defense
Every charged person shall be given adequate time and facilities for the preparation of his or her defense.13
Choice of Legal Representation
Every charged person 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 and, provided that where a person is charged with an offence which carries a punishment of death or imprisonment for life, that person shall be entitled to legal aid at the expense of the State.14
Examination of Witnesses and Evidence to be Presented
Every accused person shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution.15
Trial in a Language the Accused Understands and to be Conducted in His/Her Presence.
Every accused shall be permitted to have without payment the assistance of an interpreter if he or she cannot understand the language used at the trial of the charge; and, except with his or her own consent, the trial shall not take place in his or her absent unless he or she so conducts himself or herself has to render the continuance of the proceedings in his or her presence impractical and the court has ordered him or her to be removed and the trial to proceed in his or her absence.16
Accused's Right to Silence
No person charged with a criminal offence shall be compelled to give evidence at the trial.17
Right to be Tried by Jury
A person charged with criminal offence in the High court shall have the right to elect to be tried by a jury.18
No person shall be charged with or held to be guilty of a criminal offence on account of any act or omission which did not at the time it took place constitute such an offence, and no penalty shall be imposed for any criminal offence which is more severe in degree or description that the maximum penalty which might have been imposed for that offence at the time when it was committed.19
Autrefois convict et Autrefois acquit
No person who shows he or she has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he or she could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal or revision proceedings relating to the conviction or acquittal.20
The Gambian criminal justice system administers a system of capital punishment, including the death penalty, and this is regulated by Article 18(1) of the Constitution:
No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect in accordance with subsection 18(2) and of which he or she has been lawfully convicted.
The power of the Courts to impose death sentence in criminal trials is now restricted by Section 18(2) of the Constitution to offences involving violence, or the administration of any toxic substance, resulting in the death of another person. Section 28(2) of the Gambian Criminal Code however prohibits the imposition of the death sentence on a pregnant woman.21
In terms of Gambian criminal law, aside from the death penalty, the following sentences may be meted out by the Courts following conviction:
- Imprisonment, - corporal punishment, - fines, - payment of costs, - payment of compensation, - finding security to keep the peace and be of good behaviour or to come up for judgment, - forfeiture or - hard labour.22
The issues of admonition and release, as well as probation, are also contained in the Gambian Criminal Code.23
Punishment of Child Offenders
Gambian law provides that child offenders shall not be subjected to the criminal justice process or to criminal sanctions for adults, but a child alleged to have committed an act which would constitute a criminal offence if he or she were an adult shall be subjected only to the child justice system and processes set out in the Gambian Children's Act. 24 Child offenders may also not be sentenced to death or imprisonment and the detention of convicted child offenders is set out in the Gambian Children's Act.25
The President may, at any time, by Proclamation published in the Gazette, declare that-
(a) a state of public emergency exists in the whole or any part of The Gambia; or
(b) a situation exists which, if it is allowed to continue, may lead to a state of public emergency.26
Where a person is detained by virtue of or under any Act of the National Assembly in terms of a state of emergency (referred to in section 35 of the Constitution), the following provisions shall apply:
(a) he or she shall, as soon as reasonably practicable, and in any case not later than twenty four hours after the commencement of the detention, be furnished with a statement in writing specifying in detail the grounds upon which he or she is detained; and the statement shall be read, and, if necessary, interpreted, to the person who is detained in a language which he or she understands; and
(b) The spouse, parent, child or other available next-of-kin of the person detained shall be informed by the authority effecting the detention and shall be permitted access to the person concerned at the earliest practicable opportunity, and in any case not later than twenty-four hours after the commencement of the detention.27
Despite the country’s constitutional safeguards pertaining to human rights it is reported that the security services, especially the NIA, continued to arbitrarily arrest, detain, and intimidate religious leaders, trade unionists, journalists and former civil servants, seemingly targeting political opponents and those critical of the government and particularly President Jammeh. Barrow promised during his election campaign to release political prisoners.
It is also reported that Gambian security forces continue to subject detainees to serious mistreatment, including torture. Several protesters arrested in April and May were subjected to serious physical abuse while in detention. Prisons are reported to operate far below international standards. Prisoners lack appropriate housing, sanitation, food, and inadequate medical care. Detainees in the security wing of Mile 2 Central Prison, including the UDP leadership, were frequently subjected to prolonged solitary confinement.