Never have I been so worried about the state of Gambia’s democracy than this morning. I woke up to a press release regarding a purported private criminal prosecution against four women. Yes, you’ve heard it correct.
Per the press release, the “allegation against [the woman] is that [she] used derogatory language against the proceedings of the Brikama Children Court in several publications.”
Even if this allegation is true, at best, it’s a contempt of court, and the very least, a protected speech. Instead of the Magistrate Court or the state filing a possible charge—if one is even conceivable under these facts—a private attorney somehow manages to have a sitting magistrate issue a bench warrant without any summons.
To say the process is repugnant is an understatement. Unless a summons is issued and legally served to require the presence of a person at court for which, she failed to appear, then a court has no business in issuing a bench warrant—if the fix is not in already.
With all the mishaps of our judiciary and Gambia Bar, this is the most obnoxious conduct yet. I’m mortified that the magistrate and the attorney that appended their names to this illegality are in the same profession as me.
Patriarchy has won! Gambian men have managed to draw a wedge between women. You can only be conquered if you’re divided in pursuit of equal rights, and we did just that in the last few weeks. Feminism is not a threat—patriarchy is, has been, and will continue to be!
Nothing is more dangerous than 1L or some newbie law graduate who thinks he knows it all. Before you come to me with private prosecution is acceptable, try an argue a motion first in court. Not a complete trial! Because last I checked, the DPP only gives fiat to the private lawyers in the NIA case. Absent that, unless the president himself deputized you, I’m still pondering where the authority comes from.
And even under common law, where Gambia derives its private prosecution basis, it has limitation. As the New Hampshire Supreme Court puts in 2002. State v. Martineau, 148 N.H. 259 (2002). (”Because the legislature has never limited the initiation of the criminal process to public prosecutors, private prosecutions continue to exist as a matter of New Hampshire common law, so long as they are not ‘repugnant to the rights and liberties’ contained in the constitution.” “We conclude from a review of our case law that the common law does not authorize private prosecutions of criminal offenses which may be punished by imprisonment.”).
N/B: If you believe that someone wronged you, you’ve the civil court to make you a whole. And if the wrong is criminal, report it to the police for investigation and prosecution. Until then, NO GAMBIAN should have the power to use and abuse the court process and the police—Not even Jammeh did!
I call on the AG, Gambia Bar, and the MoJ to restore sanity and legitimacy to the justice system. Take it to the Supreme Court!
But hey, the 800 pounds gorilla-US Supreme Court-upheld the remedies available to us all here. Just saying!
