Access To Justice & The Legal System In The Gambia
The Gambia faces significant challenges in implementing a legal system that serves its population adequately, but it is making strides in the right direction.
Barriers To Participation In Gambia’s Legal System
Equal access to justice remains a challenge for most people in The Gambia. Aside from the limited provision of state-funded legal aid, a large number of Gambians have few options to access the judicial system with proper representation.
The majority of pro bono legal services are provided by lawyers and law firms which are located mainly in the Greater Banjul area, and which lack the resources and the capacity to represent the large number of Gambians in need of legal advice.
Without representation, most Gambians are unable to access the legal system because of the complex legal procedures, lack of education regarding legal rights and the court system, financial impediments or other time and resource constraints.
The Legal System in The Gambia
The Gambia’s legal system contains elements of English common law, Gambian statutory law, customary law and religious law (mainly Islamic law).
The court structure in The Gambia operates at two levels: namely, the superior and subordinate courts.
Superior Courts In The Gambia
The superior courts consist of the Supreme Court, the Court of Appeal and the High Court.
The Supreme Court is the highest court in the judicial system of The Gambia, having appellate jurisdiction over appeals from cases concluded by the Court of Appeal, whilst the Court of Appeal has jurisdiction over appeals from the High Court, and other courts and tribunals.
In addition, the Supreme Court has exclusive jurisdiction over matters relating to presidential elections, and issues advisory opinions on matters involving the interpretation or application of the Constitution and in matters of general importance.
Subordinate Courts In The Gambia
In addition to the superior courts, the Constitution provides for subordinate courts such as Magistrates’ courts, Kadhi courts, court martial, and any other court or local tribunal established by an Act of Parliament.
The traditional, or Kadhi courts are presided over by a local chief and a council of elders who profess the Islamic religion and have knowledge of Islamic law. These courts have jurisdiction over limited types of proceedings relating to personal status, marriage, divorce or inheritance.
Mediation & Arbitration Services In The Gambia
Besides the formal court system, other dispute resolution mechanisms are used by Gambian citizens to pursue grievances and conflicts, including mediation and arbitration.
Mediation by community elders has also been said to be preferable because of the relatively lower cost and ease of access, compared to formal court structures; however, such forums may not permit a party to be represented by an advocate of his or her choosing.
Accordingly, it has been recommended that the government institutionalize such forms of dispute resolution (which would ease the backlog in the formal court system) and ensure that traditional justice systems adhere to constitutional norms of equality and non-discrimination.