Jurisprudence Law at Gambia
Jurisprudence Law in The Gambia
The legal system in The Gambia is based on English common law, as the country was a former British colony. The legal framework is a combination of statutory law, case law, Islamic law (Sharia), and customary law, with a significant influence from international law on human rights and governance. Gambia’s jurisprudence is shaped by its legal history, constitutional principles, and the increasing influence of regional and international law.
🏛️ Legal System Overview:
Type: Common law system influenced by English law.
Constitution: The Constitution of The Gambia (adopted in 1997) is the supreme legal document that governs the country, outlining the structure of government, citizen rights, and the rule of law.
English Influence: As a former British colony, The Gambia’s legal system retains the common law principles of precedent and judge-made law. The Judicial Committee of the Privy Council (based in London) was the final court of appeal until The Gambia withdrew from the Privy Council in 2019.
Islamic Law (Sharia): Islam plays a significant role in personal law matters, particularly in family law (e.g., marriage, inheritance) for Muslim citizens.
Customary Law: Customary law applies to personal matters such as family disputes and land ownership, particularly in rural areas.
⚖️ Sources of Law in The Gambia:
The Constitution of The Gambia – The Constitution is the highest law in the country, and all laws, executive actions, and government policies must align with it. It guarantees fundamental rights, such as freedom of speech, right to property, and equality before the law.
Statute Law – Laws passed by The Gambia National Assembly. These statutes cover areas like criminal law, civil law, labor law, and tax law.
Criminal Code: A comprehensive set of laws related to offenses and their punishments.
Civil Code: Governs issues like contracts, torts, and property rights.
Common Law (Case Law) – Legal precedents from past court decisions, especially those from higher courts, are significant. The Gambia’s Supreme Court and Court of Appeal have the power to interpret and apply these precedents.
Islamic Law (Sharia) – Islamic principles play a role in personal law, particularly for Muslim citizens in matters of marriage, divorce, and inheritance.
Customary Law – Customary law exists primarily in rural areas, particularly concerning family matters, land rights, and local governance. It is influenced by ethnic traditions and community-based practices.
International Law – The Gambia is a member of several international organizations, including the United Nations and the African Union, which influence the country’s approach to human rights law and international treaties.
🧑⚖️ Judiciary:
The Gambian judiciary is independent as guaranteed by the Constitution, although political influences have historically been a concern.
Supreme Court of The Gambia: This is the highest court, responsible for constitutional matters, final appeals, and ensuring legal consistency.
Court of Appeal: Handles appeals from the lower courts.
High Court: Deals with criminal, civil, and constitutional matters at the trial level.
Magistrates’ Courts: These courts handle minor criminal and civil matters.
Sharia Courts: These courts deal with family law matters for Muslim citizens, including marriage, divorce, inheritance, and other personal matters based on Islamic law.
Customary Courts: These courts resolve disputes based on traditional practices, typically in rural areas or among specific ethnic groups.
📚 Jurisprudence (Legal Theory) in The Gambia:
Legal Positivism:
Gambia’s legal system largely follows the legal positivism approach, meaning that laws are considered valid if they are enacted by a legitimate authority (such as the National Assembly), regardless of their moral or ethical content.
The Constitution and statutes passed by the National Assembly form the core of Gambian jurisprudence, and judicial decisions are made in accordance with these laws.
Natural Law and Constitutionalism:
The Gambian Constitution enshrines several principles of natural law, such as the protection of human rights and freedom of expression. These principles, often invoked in legal arguments, emphasize fundamental rights and the moral foundations of law.
The Constitution has been a critical tool in the protection of individual liberties and democratic governance. Challenges to laws or actions deemed unconstitutional are often taken to the Supreme Court.
Common Law and Precedent:
As a former British colony, The Gambia follows the common law system where decisions made by higher courts create binding precedents for lower courts.
Case law from England, Gambian courts, and the West African Court of Justice (WAJC) often influence judicial reasoning.
Islamic Law (Sharia) and Jurisprudence:
Islamic jurisprudence (or Fiqh) plays a significant role in The Gambia’s legal landscape, particularly in family law. Sharia law governs personal status issues like marriage, divorce, and inheritance for Muslims.
Legal scholars and judges apply principles of Islamic law in Sharia courts, balancing these with constitutional and statutory frameworks. Islamic law is often considered alongside customary and statutory laws.
Customary Law:
Customary law is rooted in the traditions and practices of specific ethnic communities. While it is recognized by the state, it is often applied to issues such as land disputes, family matters, and community governance.
There are ongoing efforts to balance customary law with modern legal principles, particularly when customary practices conflict with constitutional principles, such as gender equality or property rights.
Human Rights and International Law:
International human rights law is increasingly influential in Gambian jurisprudence. The Gambia has ratified multiple international treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, and courts often reference these treaties when adjudicating cases related to freedom of expression, due process, and fair trials.
Since the Gambia's return to democracy in 2017, there has been a focus on reform in human rights jurisprudence, particularly concerning freedom of assembly, equality, and justice for victims of past human rights abuses.
📜 Notable Legal Developments and Cases:
Constitutional Reforms (2017-2019):
After the fall of Yahya Jammeh’s regime, constitutional reforms were enacted to strengthen democratic institutions, human rights, and the rule of law. This includes the establishment of the Truth, Reconciliation, and Reparations Commission (TRRC), which investigates human rights violations that occurred during the previous regime.
Legal reform has aimed at ensuring the independence of the judiciary and improving transparency in legal processes.
Family Law and Sharia Courts:
A significant amount of legal practice in family law revolves around Sharia law for Muslim citizens, particularly in matrimonial issues. Cases regarding inheritance, marriage (polygamy), and divorce are subject to both Islamic principles and constitutional guarantees of gender equality.
Balancing Islamic law with constitutional rights remains a significant jurisprudential issue in The Gambia.
Human Rights Cases:
There has been a shift toward human rights protection since the democratic transition. The Supreme Court and Constitutional Court now play a more prominent role in defending individual liberties, including freedom of speech and freedom of assembly, which were suppressed during the dictatorship.
Landmark rulings have been issued on the right to freedom of expression, particularly regarding the press and political activism.
Legal Education and Practice in The Gambia:
Legal education in The Gambia is offered by institutions such as the University of The Gambia (UTG), which provides a Bachelor of Laws (LL.B.) program. After completing their degree, law graduates can take the Bar Examinations to practice as lawyers.
The Gambian Bar Association oversees the practice of law, ensuring that lawyers adhere to professional ethics and standards.
Judges and legal professionals often receive training from West African law schools and international human rights organizations.
📚 Jurisprudence in Practice:
Sharia and Family Law: The application of Sharia law in family disputes often intersects with modern legal principles, especially concerning gender equality and inheritance. Cases involving Sharia courts present an interesting mix of constitutional law and Islamic jurisprudence.
Human Rights Law: As The Gambia continues to reform its legal system, human rights jurisprudence is becoming more prominent, with constitutional challenges against laws perceived to violate fundamental rights becoming a common practice.
RELATED Blog
0 comments