In a compelling legal commentary, US-based Gambian legal scholar Sarjo Barrow has lauded the recent acquittal of Abdoulie Sanyang by Justice Ebrima Jaiteh as a pivotal moment in The Gambia’s constitutional jurisprudence. Barrow argues that the ruling strikes a crucial balance between protecting court proceedings and upholding freedom of expression in a jury-less judicial system.
The case against Sanyang stemmed from charges of “interference with judicial proceedings” under the sub judice rule, a common law doctrine aimed at preventing public commentary from influencing ongoing trials. Justice Jaiteh’s decision to acquit Sanyang, Barrow writes, goes beyond resolving an individual dispute—it establishes a constitutional line where judicial protection ends and free speech begins. “Justice is not a cloistered virtue,” Barrow quotes from the 1936 Privy Council case Ambard v. Attorney General for Trinidad and Tobago, emphasizing that courts must withstand public scrutiny rather than hide from it.
Barrow, who has worked with the United States Department of Justice (though he stresses his views are personal), draws parallels between The Gambia’s 1997 Constitution and American legal principles. He notes that, unlike the UK’s strict liability approach to sub judice violations, The Gambia’s system—modeled more closely on the US—requires proof of actual harm or intent to interfere with the judicial process for speech to be deemed criminal. “Being disrespectful or critical, however distasteful, isn’t automatically criminal,” Barrow asserts. He warns that punishing mere opinions risks eroding free expression, a cornerstone of constitutional republics.
The commentary highlights the unique context of The Gambia’s judiciary, where professional judges, not juries, render verdicts. This setup, Barrow argues, reduces the need for broad speech restrictions, as judges base their decisions on evidence and law rather than external noise. He references US Supreme Court cases like Sheppard v. Maxwell (1966), where the Court placed the onus on judges to manage publicity threats through courtroom measures rather than blanket gag orders. Similarly, in Gentile v. State Bar of Nevada (1991), the Court protected lawyers’ speech rights, limiting restrictions to those posing a “substantial likelihood” of material prejudice.
Barrow underscores the democratic value of open discourse, invoking Justice Louis Brandeis’s famous concurrence in Whitney v. California (1927): “The answer to harmful speech is usually ‘more speech, not enforced silence.'” In The Gambia, where judicial independence was formalized post-1997 and appeals no longer go to the Privy Council, this principle is vital for building public trust. “Respect built on fear is brittle; respect earned through integrity endures,” Barrow writes, adding that judicial opinions are public documents meant for scrutiny.
The Sanyang ruling also reaffirms core criminal justice tenets, such as the prosecution’s burden of proof from Woolmington v. DPP (1935). Barrow praises Justice Jaiteh for maintaining this standard amid potential political or public pressures, signaling that Gambian courts are resilient enough to handle criticism without resorting to prosecutions for “uncomfortable” speech.
Broader implications for The Gambia are clear in Barrow’s analysis. The decision reinforces that fair trials and free expression are complementary, not conflicting. Professional conduct rules, like the American Bar Association’s Model Rule 3.6, should target insiders with case knowledge, not the general public or unrelated commentators. In a nation transitioning from authoritarianism, Barrow contends, vigorous protection of trial integrity must pair with equally strong safeguards for speech. “When speech goes off track, the first response in a democracy shouldn’t be silence. It should be reason, openness, and, when necessary, more speech,” he concludes.
Barrow’s commentary, published independently, comes at a time when debates over media freedom and judicial accountability are intensifying in West Africa. As a Gambian-born scholar now residing in the US, he offers insights that bridge common law traditions with modern constitutionalism, offering a roadmap for policymakers. The ruling, he says, reassures that judicial independence and public debate can coexist, ultimately strengthening democracy.
While the Sanyang case may seem niche, Barrow’s dissection reveals its ripple effects: fostering a judiciary that thrives on transparency rather than isolation. For The Gambia, this could mark a shift toward a more robust legal framework in which criticism fuels improvement rather than fear. As Barrow puts it, confusing protections for courtrooms with muzzling the public square “helps nobody.” In an era of social media and instant opinions, this balance could prove essential for sustaining trust in institutions.
