The National Assembly in The Gambia passed the Criminal Procedure Act of 2025, replacing a code that had been in place since 1933. This significant legislative overhaul comes after decades of operating under outdated legal frameworks. The new legislation aims to modernize the country's criminal justice system by introducing several key reforms. These include the formalization of probation and parole mechanisms, which provide structured alternatives to incarceration and support rehabilitation. Additionally, the Act implements plea deals, allowing for more efficient resolution of cases and potentially reducing court backlogs. It also provides enhanced options for minor offenders, aiming to divert them from the traditional justice system and promote restorative justice practices. The Criminal Procedure Act of 2025 seeks to offer greater protection for witnesses and victims involved in legal proceedings, ensuring their safety and encouraging their participation in the justice process. The legislation also establishes clearer rules and guidelines regarding bail, intending to streamline and improve the procedural aspects of criminal cases in The Gambia, thereby promoting fairness and consistency.
A Case of Lingering Uncertainty
A man accused of a serious crime spent nearly eight years waiting for his day of reckoning, noting a persistent issue within The Gambia's justice system. Throughout that protracted period, the state called its witnesses and subsequently closed its evidence in the lengthy case, indicating that the prosecution had presented its full argument. However, before any judgment could be rendered by the court, the state announced its decision not to proceed further with the proceedings. This resulted in the eight-year case dissolving with no conviction, no acquittal, and no finding of any kind against the accused individual. The implications of this outcome are profound, as a critical concern arising from such situations is that the state retains the ability to charge the accused from the eight-year case again for the same alleged offense at any point, even tomorrow. This leaves individuals in a perpetual state of legal limbo. Critics argue emphatically that eight years is an excessive duration for an individual to await a decision on their legal status, irrespective of the ultimate outcome. The protracted nature of such cases shows the challenges in achieving timely judicial resolutions and upholding the principle of a speedy trial.
The Nolle Prosequi Dilemma
When the state decides not to continue a case by entering a nolle prosequi, the accused always receives a discharge, not an acquittal. This distinction is key in understanding the long-term legal ramifications for the individual. An acquittal is considered final, meaning that if a court acquits an individual of a charge, the state cannot try them again for the same offense, offering permanent legal closure. Conversely, a discharge is not final; an individual is free in the immediate term, but they could be charged again later for the same alleged crime, leaving them vulnerable to future prosecution.
A nolle prosequi can be initiated at any point during legal proceedings, even after all evidence has been presented by the state, as was the situation in the eight-year case. The court has no power to prevent a nolle prosequi from being entered, meaning the prosecution holds significant discretion in terminating cases. The rule against being tried twice for the same offense, known as double jeopardy, only applies if there has been a verdict in the case, whether it be a conviction or an acquittal. If a case concludes without a verdict, as happens with a nolle prosequi, the protection against being tried twice does not apply, leaving the accused susceptible to re-prosecution.
The procedural differences between courts further complicate this issue. In magistrates’ courts, a late withdrawal of a case by the prosecution can be converted into an acquittal under Section 78 of the relevant laws, providing a pathway to finality for the accused. However, in the High Court, no such conversion to an acquittal exists under Section 74 for late withdrawals, meaning that cases ended by nolle prosequi in the High Court remain as discharges. This disparity creates an unequal application of justice depending on the court level.
Constitutional Framework and Calls for Reform
The state's authority to discontinue a criminal case originates from Section 85 of The Gambia Constitution, which grants the Director of Public Prosecutions the power to terminate any legal proceeding. This constitutional provision ensures that the decision to end a case rests with the prosecution, reflecting a common legal practice in many jurisdictions. However, the current framework does not adequately address the implications of such decisions on the accused.
The Gambia Constitution primarily focuses on preventing discrimination based on identity factors such as race, gender, or religion, rather than addressing disparities arising from the specific court where a case is heard. Section 33(7) of The Gambia Constitution specifies that courts are unable to question the choice to end a case on equality grounds. This constitutional constraint means that the judiciary cannot intervene to ensure consistency or fairness when a nolle prosequi results in a discharge rather than an acquittal, even if the circumstances of the case, such as the presentation of all evidence, would otherwise warrant an acquittal.
Given these challenges, there is a strong call for legislative reform. The National Assembly should ensure that when the state drops a case after all evidence has been presented, particularly in circumstances similar to the eight-year case, the result is an acquittal, not merely a discharge. This change would provide the accused with definitive legal closure and prevent the state from holding the threat of re-prosecution indefinitely. It is noteworthy that the Criminal Procedure Act of 2025 already ensures an acquittal when a judge finds there is no case to answer in magistrates’ courts, demonstrating a precedent for such a protective measure. Extending this principle to all courts and to cases where the prosecution withdraws after presenting all evidence would significantly strengthen the rights of the accused and bring greater fairness to The Gambia's criminal justice system.