What Gambian law allows and what it still lacks
By Adrian Corish
Recent commentary has suggested that The Gambia lacks any legal means to hold migrant smuggling networks accountable.
This claim is legally inaccurate but it points to a real and serious weakness in the current framework.
The truth is more precise
Gambian law already provides multiple legal pathways to investigate and prosecute smuggling related conduct but it does not yet contain a dedicated, modern offence of “migrant smuggling” as defined under international law.
Both statements are true. And both matter.
1. Territorial Jurisdiction Gambian courts clearly have authority.
Under the Criminal Code of The Gambia (Act No. 25 of 1933) Gambian courts have jurisdiction over Offences committed wholly within Gambian territory and Offences partly committed in The Gambia, where planning, recruitment, financing, facilitation, or coordination occurs locally.
This means that individuals who organise, recruit, plan, fund, or support irregular sea departures from Gambian soil fall squarely within Gambian jurisdiction even if the boat departs later or the harm occurs at sea.
This jurisdictional authority is not in dispute.
2. Immigration Act Relevant but Limited Tools.
The Immigration Act (Cap. 16:02) contains offences that can be applied to smuggling related conduct, including aiding or abetting unlawful entry or exit, knowingly harbouring persons in violation of immigration laws, failing to comply with obligations imposed under the Act.
These provisions can and should be used against facilitators, recruiters, and logistical supporters.
However, it is important to be precise.
The Immigration Act does not create a standalone offence of migrant smuggling, nor does it explicitly criminalise organised, for profit facilitation of irregular migration as such.
As a result, prosecutions must rely on narrower, conduct specific offences rather than a comprehensive smuggling charge.
3. Criminal Code Conspiracy, Endangerment, and Criminal Participation
The Criminal Code provides powerful general criminal law tools that remain underused in this context, including offences relating to conspiracy to commit unlawful acts, aiding and abetting criminal conduct, fraud and deception, including false promises of safe passage, negligent or reckless acts endangering life, particularly relevant in unsafe sea departures.
These provisions allow prosecutors to target networks, not just individual actors especially where evidence shows coordination, financial gain, or reckless disregard for human life.
But again, precision matters
These are general criminal offences, not migrant smuggling offences per se.They punish accompanying crimes not the smuggling enterprise itself.
4. Trafficking in Persons Act
Applicable only where exploitation exists
The Trafficking in Persons Act (2007 amended 2010) criminalises recruitment and movement where coercion, deception, abuse of vulnerability, or exploitation is present.
This law has been used successfully in cases involving dangerous sea journeys.
However, under international law trafficking/smuggling requires facilitation of irregular movement for financial gain
Trafficking requires exploitation.
The Trafficking Act cannot substitute for a migrant smuggling offence where exploitation cannot be proven.
5. The Real Gap No Dedicated Migrant Smuggling Offence.
Multiple legal analyses, official statements, and court practice confirm a critical fact.
The Gambia does not currently have a specific domestic offence criminalising “migrant smuggling” in line with the UN Protocol against the Smuggling of Migrants.
This absence creates real consequences prosecutors must “fit” smuggling conduct into unrelated offences
Elements are harder to prove
Penalties are inconsistent.
Organised networks are rarely targeted as such.
This is not a theoretical gap it is a practical enforcement weakness.
6. What This Means in Practice
✔️ It is incorrect to say smugglers cannot be prosecuted under Gambian law.
✔️ It is equally incorrect to claim that existing laws fully and directly criminalise migrant smuggling as a distinct offence.
The legal reality is fragmented
Jurisdiction exists
Criminal tools exist
Immigration offences exist
Trafficking laws exist
But a dedicated smuggling offence does not.
Conclusion From Legal Possibility to Legal Precision
The challenge facing The Gambia is not the absence of law but the absence of a clear, modern, consolidated smuggling offence.
Until such legislation is enacted
Prosecutors must act creatively and decisively using existing tools
Courts must interpret general offences in light of organised criminal conduct
Policymakers must close the gap through legislative reform aligned with international standards.
The law already allows action. What is missing is clarity, coordination, and political will.
Thank you
