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Wednesday, February 24, 2021

Justice Minister says Gambia’s legal system unique

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This declaration was contained in a lecture he delivered over the weekend at the third annual Law Day of the University of The Gambia in Kanifing on the topic, ‘The different land law regimes and their effect on Gambian land law’.

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He expounded: “The Gambia legal system is unique from jurisdictions in other parts of the world. The Gambia has a tripartite legal system, that is, three legal systems being carried out in unison within the territory. We have the Common Law which is inherited from the former colonisers. It is the system that flows from the government structure, the three arms of government, namely, the Legislature in the form of the National Assembly that passes statutes or acts or legislation; the Judiciary that interprets the acts and sets down precedents; and the Executive which makes policies for consideration by the legislature to pass into laws and enforcement of the laws by the Executive. Apart from the Common Law, we have the Sharia’ah Law or Islamic Law which is restricted to matters of marriage, divorce and inheritance. And the third system is the Customary Law, which are rules observed by a community over a long period of time that are considered binding on the community to which such rules apply.

“It is important to note that in addition to the Common Law enacted by our own National Assembly and interpreted by the Judiciary and applied by the Executive, and the application of Islamic Law in restricted areas, and the application of Customary Law, there is a wider set of laws and rules applicable in our jurisdiction which are the Common Law, doctrines of equity and the statutes of general application in force in England on 1st November 1888 which are applicable in The Gambia by virtue of Section 2 of the Law of England (Application) Act 1953. Furthermore, by virtue of Section 3 of the same Act, all Acts of Parliament of the United Kingdom declared to extend or apply to The Gambia which had effect as part of the laws of The Gambia immediately before 18th February 1965 shall continue to be in force subject to the provisions of any local Act. These are considered as part of the Common Law mentioned above. 

“The Constitution of The Gambia is the supreme law of The Gambia and therefore any law inconsistent with the Constitution is void to the extent of the inconsistency, expressly provides what the laws of The Gambia consist of. Section 7 makes it clear that the laws are the Constitution, Acts of the National Assembly and subsidiary legislation made under them, the existing laws and Decrees of the Armed Forces Provisional Ruling Council, the common law and principles of equity, customary law so far as concerns members of the communities to which it applies and the Sharia’ah Law as regards matters of marriage, divorce and inheritance among members of the communities to which it applies.”  

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