By Sarjo Barrow, Esq
The views expressed are the author’s and do not necessarily represent the views of the United States Department of Justice or the United States.
This commentary is prompted by the recent sentencing of a young man to twelve years’ imprisonment for possession of three kilograms of cannabis. The case raises broader questions beyond any one individual and speaks to how our laws operate.
The fight against drug trafficking is a legitimate and necessary public goal. Few would disagree that large-scale drug distribution harms families, communities, and national security. The Gambia itself has become a clear example of how the drug menace can take hold, for reasons that continue to be debated publicly. Yet even the most urgent social problems must be addressed within the framework of the Constitution. That is why Section 43 of the Drug Control Act, 2003 raises serious constitutional concerns that merit careful judicial review.
Why the law raises constitutional questions
Section 43 creates a mandatory rebuttable presumption: where a person is found in possession of two kilograms or more of cannabis, the law presumes that the person intended to traffic drugs, unless the accused proves otherwise. This structure matters. Under Section 24(3)(a) of the 1997 Constitution, every person charged with a criminal offense is presumed innocent until proven guilty. In practical terms, this means the state must prove every element of the offence, including intent, beyond a reasonable doubt.
By presuming trafficking from possession alone, Section 43 risks relieving the prosecution of the burden of proving intent, which is a core element of trafficking. The burden effectively shifts to the accused to disprove guilt. Courts across common law systems have repeatedly cautioned that laws operating in this way sit uneasily with the presumption of innocence.
Common law experience beyond The Gambia
In the United States, courts have long held that proof beyond a reasonable doubt is a constitutional requirement in criminal cases. As early as the nineteenth century, the US Supreme Court held that no person may be convicted unless the state proves guilt beyond a reasonable doubt, as reflected in Miles v United States (1881) and Davis v United States (1895). In Winship (1970), the Court made this principle explicit, holding that due process requires the prosecution to prove every element of a crime beyond a reasonable doubt. Later decisions, such as Sandstrom v. Montana (1979) and Francis v. Franklin (1985), rejected mandatory presumptions that shift this burden to defendants.
This principle is not uniquely American. It is rooted in the shared history of common law justice. Legal scholars have explained that while “the demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times,” its formulation as “beyond a reasonable doubt” became settled by the late eighteenth century. Today, it is “accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the court of all the essential elements of guilt.” (C McCormick, Evidence §321; J Wigmore, Evidence §2497). Even where constitutional texts differ, courts have emphasized that near-universal adherence to this standard “reflects a profound judgment about the way in which law should be enforced and justice administered” (Duncan v. Louisiana, 1968).
In South Africa, a constitutional court confronted a similar drug presumption and struck it down in S v Bhulwana; S v Gwadiso (1995), holding that forcing an accused person to disprove trafficking violated the presumption of innocence. These decisions do not deny the dangers of drugs. They insist that a criminal conviction must rest on proof, not assumption.
How lawyers may raise the concern
While The Gambia has not adopted strict scrutiny of fundamental rights, diligence requires being cognisant of this anomaly in burden-shifting. Lawyers faced with Section 43 may raise two established constitutional arguments.
First, a facial challenge, arguing that the provision is unconstitutional in all cases because it consistently places a legal burden on the accused to disprove an essential element of the offence. If correct, the flaw lies not in individual facts but in the law’s structure itself.
Second, an “as applied” challenge, arguing that even if the law is not struck down entirely, it is unconstitutional as applied to a particular defendant, especially where there is no independent evidence of trafficking beyond possession. This approach preserves the issue for higher courts while allowing attention to the specific facts of a case.
Both forms of challenge serve an important purpose: they invite courts to measure legislation against constitutional guarantees rather than public pressure or political urgency.
A need for guidance from the apex court
This issue is not only about one law or one crime. It is about clarity, fairness, and public confidence in the justice system. Without guidance from the Supreme Court, lower courts may apply Section 43 unevenly. Citizens may be left unsure whether possession automatically equals guilt. Prosecutors may rely on statutory presumptions rather than evidence. Such uncertainty weakens, rather than strengthens, the rule of law.
A Supreme Court ruling would not weaken drug control. It would clarify how far Parliament may go in using presumptions, and where constitutional limits must be respected. Strong enforcement and constitutional fairness are not opposing goals.
Conclusion
The question is not whether The Gambia should fight drug trafficking. It must. The question is whether that fight should begin by assuming guilt, or by proving it.
Section 43 places that question squarely before the courts. For the sake of constitutional order, legal certainty, and public trust, it is a question the Supreme Court should answer
