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Re: The validity of The Gambia’s death penalty regime: A question the supreme court answered incorrectly

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By Bubacarr Drammeh, Esq., LLB, BL, LL.M.

The release of the National Human Rights Commission (NHRC) ‘Advisory Note on the Abolition of the Death Penalty in The Gambia’ engendered public debates both within The Gambia and the diaspora on the legality of the death penalty in The Gambia.

The rejuvenating opinion piece with the above caption by the erudite Lamin J. Darbo caught my attention. Darbo argues that the Supreme Court incorrectly answered the question whether The Gambia has a valid death penalty law before asserting, unequivocally, that “there is currently no legally enforceable death penalty law in The Gambia.” To support his assertion, he submitted that:

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Section 18 (1) and (2) [of the 1997 constitution] ceased to have effect and were placed in abeyance by the express overriding qualifier of 18(3) in so far as the constitutional command of a “review”, and a possible referendum on the death penalty did not take place. All death sentences not implemented as of 16 January 2007 were constitutionally stayed. And all death sentences imposed since 17 January 2007 were legally invalid.

I, respectfully, disagree with the assertion of Counsel Darbo, to which I say unequivocally that there is currently a legally enforceable death penalty law in The Gambia. Out of abundance of caution, I will state from the onset that this piece is not about whether the death penalty should be retained or abolished, nor whether Darbo was wrong when he claimed that the Supreme Court incorrectly answered the question whether the Gambia has a valid death penalty law. But to assert unequivocally that there is currently a legally enforceable death penalty law in The Gambia.

In September 2020, the proposed Constitution Promulgation Bill, 2020, which would have set the motion for the repealing of the 1997 Constitution and in effect abolish the death penalty, died in the National Assembly because it failed to meet the threshold requirement. Consequently, the citizens were denied the opportunity to either retain or abolish the 1997 Constitution. Thus, the 1997 Constitution still “occupies the first place in the legal system of The Gambia and its jurisprudence.” And therefore “the king of the entire legal system and all statutes of The Gambia and the common laws of The Gambia.”

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Since 1997 Constitution is the “barometer with which the entire legal system is mirrored and measured,” it is therefore indisputable that we must rely on the constitution to provide answers to the legal question whether there is a legally implementable death penalty law in The Gambia. In doing so, it is prudent to focus entirely on what it ordained. The germane provision dealing with the death penalty in The Gambia is section 18. The said section provides that:

(1) No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted

(2) As from the coming into force of the Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.

(3) The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.

There seems to be a consensus that The Gambia had a valid death penalty law from, at least, January 16, 1997 up to 16 January 2007. However, there is a discourse regarding the validity of the death penalty after January 16, 2007 due to the language of section 18(3). Section 18(3), per the Supreme Court, is a “Sunset” provisions because it sets a time limit on the exercise of power conferred by it. Doubtlessly, section 18 (3) “contemplates the abolition or otherwise of the death sentence” when it instructs the National Assembly to “review the desirability or otherwise of the total abolition of the death penalty in The Gambia.” Since the National Assembly has failed to comply with the instruction of section 18(3), and “the sun has set” effectively closing the window of opportunity for review. What then is the effect of this delinquent on the legality of the death penalty in The Gambia? I am tempted to posit on this question, but it would be a mere academic exercise since the Supreme Court had opined on it.

The Supreme Court of The Gambia, whose opinion on the issue would be regarded as the position of the law, has remove us from theoretical terrains to a settled case law when it addressed section 18(3) in the case of Colonel Lamin Bo Badjie & 6 Others and the State (SC Crim. Appeal No: 1-7/2011). Hon. Chief Justice Ali Nawaz Chowhan, delivering the lead Judgment of the Court, on November 12, 2014, advanced that the National Assembly’s failure to act as mandated by section 18(3) of the 1997 Constitution “cannot by any stretch of the imagination equate to an abolition of death penalty in The Gambia” or ousted the jurisdiction of the Courts to “impose a death sentence.” The court reasoned that section 18(3) has neither expressly nor impliedly repeal “any law prescribing a death sentence for any offence or prohibiting its application after 10 years from the inception of the Constitution.” And that “there is nothing in the Constitution repealing S.18 (2) or limiting its application to 10 years from the inception of the Constitution.” Accordingly, the Courts in The Gambia “can impose a death sentence” in appropriate cases.

The pronouncement of the Supreme Court makes it explicit that there is currently a legally enforceable death penalty law in The Gambia. Hence, 18 (1) and (2) are effective and were never” placed in abeyance by the express overriding qualifier of 18(3).” At no time has the death penalty been “constitutionally stayed” and every death sentence imposed since 17 January 2007 is legally valid. Court in The Gambia with jurisdiction are “competent to impose, maintain, or implement a sentence of death.” This is the current position of the law.  Whenever there is a discourse as to what the law is, the dictum of the Supreme Court, whether deemed correct or incorrect, is the law. 

About the Author:

Bubacarr Drammeh, a columnist at The Gambia Times, holds a LLM Degree from the University of Washington, in Seattle, in the States of Washington; and he was a State Counsel at the Attorney General’s Chambers in The Gambia.

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