Gambia, Republic of the


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

Legal system based on English common law, Islamic law, and customary law.

Portuguese expeditions to Gambia in mid-15th century, and British trade in region and exploration of Gambia River by late 16th century. Gambia incorporated into British colony of Senegambia in 1765, but with growing French influence in Senegal, British seized Gambia River in 1888. In 1892 Banjul (then Bathurst) made capital. Independence in 1965. Republican Constitution adopted 1970.

Marriage governed by several regimes: customary, Islamic, and Christian (under Christian Marriage Act 1862), statutory (under Civil Marriage Act 1938). Colonial era legislation relating to Muslim personal law, Mohammedan Marriage and Divorce Ordinance 1941, was retained after independence. Legislation is mainly of regulatory nature. Discussion on codification of Muslim personal law not yet resulted in legislation.

School(s) of Fiqh

Majority of population is Maliki Muslim. Significant Christian minority communities, as well as followers of indigenous beliefs.

Constitutional Status of Islam(ic Law)

Current Constitution adopted in 1970; suspended in July 1994; revised and adopted by national referendum in August 1996 and reinstated January 1997.

Adopts no official religion. Article 7 identifies shari’a as source of law in matters of personal status and inheritance among members of communities to which it applies.

Article 33(1) proclaim equality of all persons before the law; Article 33(5c) exempts those laws relating to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law from terms of rest of Article 33.

Court System

Regular courts are the Supreme Court, High Court, Court of Appeal, and subordinate courts.

Part 3 of Constitution establishes Cadi Courts in such places as Chief Justice determines. To be composed of panel of one Cadi and two other scholars of shari’a for hearings at first instance. For hearings on review, panel to consist of Cadi and four ‘ulama’. Decision by majority of panel. Jurisdiction in matters of marriage, divorce and inheritance where parties or other persons interested are Muslims.

Relevant Legislation

Mohammedan Marriage and Divorce Ordinance 1941

 also:

Mohammedan Law Recognition Act 1905

District Tribunals Act 1933

Notable Features

Cadi Courts apply classical Maliki fiqh to matters of personal status.

Marriage Registration: obligatory within one month of marriage (or divorce) although registration does not determine validity

Notable Cases

 

Law/Case Reporting System

Law reporting through Official Gazette. Loose-leaf collection of Laws of Gambia last issued in 1990.

International Conventions (with Relevant Reservations)

ICCPR – accession 1979, with reservation to Art. 14(3)(d)) ICESCR – accession 1978 without reservations

CEDAW – signature 1980, ratification 1993, without reservations

CRC – signature & ratification 1990, without reservations

Legal History:

The legal system is based on an amalgam of English common law, Islamic law, and customary law.

The Portuguese sent expeditions to Gambia in the mid-15th century, and British trade in the region and exploration of the Gambia River began in the late 16th century. Gambia was incorporated into the British colony of Senegambia in 1765, but in response to growing French influence in Senegal, the British seized the Gambia River in 1888. In 1892, Banjul (then Bathurst) was established as the capital. Gambia gained independence in 1965. A republican constitution was adopted in 1970.

Marriage is governed by several regimes: customary, Islamic, Christian under the Christian Marriage Act 1862, and statutory under the Civil Marriage Act 1938. Colonial era legislation relating to Muslim personal law, the Mohammedan Marriage and Divorce Ordinance 1941, was retained after independence. The legislation is mainly of a regulatory nature.

The Law Reform Commission and the Women’s Bureau of Gambia made proposals for the codification of Muslim personal status laws in the mid to late-1980s, but the suggestions were not adopted into law. Some of the provisions put forward in a proposed draft published in 1987 relate to establishing a minimum marriage age of 18 for males and 15 for females, broader grounds for divorce available to both parties (including irreparable breakdown) and limiting extra-judicial repudiation.

Schools of Fiqh:  The majority of Gambians are Maliki Muslim. There are significant Christian minority communities, as well as followers of indigenous beliefs.

Constitutional Status of Islam(ic Law): The current Constitution was adopted in 1970, suspended in July 1994, revised and adopted by national referendum in August 1996 and reinstated January 1997.

The Constitution adopts no official religion. Article 7 identifies the following sources of law in addition to the Constitution: legislation; common law and principles of equity; customary law so far as it concerns members of the communities to which it applies; and shari’a as regards matters of personal status and inheritance among members of communities to which it applies. Article 33(1) proclaims the equality of all persons before the law; Article 33(5c) exempts from the rest of Article 33 those laws relating to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.

Court System: The regular court system consists of the Supreme Court, High Court, Court of Appeal, and subordinate courts. Part 3 of the Constitution establishes Cadi Courts in such places as the Chief Justice determines. Cadi Courts are to be composed of a panel of one Cadi and two other scholars of shari’a for hearings at first instance. For hearings on review, the panel is to consist of the Cadi and four ‘ulama’. The decision is made by the majority view of the panel. The jurisdiction of Cadi Courts applies to matters of marriage, divorce and inheritance where the parties or other persons interested are Muslims. Appeals of Cadi Court’s decisions at first instance may be made within three months of the decision by applying to same court. There are two Cadi Courts (in Banjul and Kanifing).

Notable Features: The Cadi Courts apply classical Maliki fiqh to matters of personal status. The Mohammedan Marriage and Divorce Ordinance 1941 makes registration of both obligatory within one month, but registration does not determine validity.  

Notable Cases:

Law/Case Reporting System: Law reporting is through the Official Gazette. A loose-leaf collection of the Laws of Gambia was issued in 1990.

 International Conventions (with Relevant Reservations): Gambia signed the ICCPR in 1979, with a reservation to Article 14(3)(d). Gambia signed the ICESCR in 1978 without reservations.

Gambia signed the CEDAW in 1980 and ratified it in 1993 without reservations.

Gambia signed and ratified the CRC in 1990, without reservations.

Background and Sources: Gambia Law Reform Commission & Gambia Women’s Bureau, Law Reform Project No. 7: Muslim Marriages: Formation and Dissolution 1987; Gambia Women’s Bureau, First & Second Workshops on the Legal Status of Women, October & November 1987; Redden, "Gambia," Modern Legal Systems Cyclopedia. vol. 6, Buffalo, N.Y., 1990; Rubin & Cotran, "Gambia," Annual Survey of African Law, vols. I & IV, 1967 & 1970.