A stay of deportation order at Banjul International exposes the gap between an old law, a new Constitution, and a courtroom rule caught in between
By Sarjo Barrow, Esq.
Some weeks ago, I circulated among a small group of Gambian lawyers, law students, and legal enthusiasts a longer comment on Ya Kumba Jaiteh v Clerk of the National Assembly and the line of cases holding that our courts cannot restrain the State by injunction while a challenge to its actions is still being heard. My argument was that this rule, drawn from section 17(2) of the State Proceedings Act, should be reexamined and confined rather than treated as a blanket ban. The piece ran too long for an op-ed. I return to it now because the question it asked has walked off the page and into an airport terminal.
Per Kerr Fatou, citing Kexx News, the High Court has granted an ex parte order restraining the Director of Immigration and the Attorney General from removing Muhammad Rene Schwarze from the country, after he was orally informed at Banjul International on June 30, 2026, that he had been declared persona non grata. The judge stayed the declaration and, mindful that ex parte relief temporarily suspends the ordinary right to be heard, limited the order to 7 days, pending a full hearing set for July 9th.
I take no position on whether Mr. Schwarze should ultimately remain in the country. That question belongs to the court. What this moment exposes is a tension buried in our own law.
Start with the Immigration Act of 1965, still on the books, though now on the verge of repeal and replacement. It gives the Minister sweeping, largely unreviewable power over a non-citizen’s presence in The Gambia. A person may be treated as an “undesirable person,” the domestic-law cousin of persona non grata, wherever the Minister forms that opinion; section 2(1) says that opinion “shall not be called in question in any Court of law.” Section 6(3) lets the Minister revoke a non-Gambian’s permit “without assigning any reason,” a decision the Act calls final. In short, the old law says a Minister may do very nearly what he wants.
The Constitution of 1997 says: not so fast. Section 4 makes it supreme and voids any inconsistent law. Section 19 protects “every person,” not only citizens, from deprivation of liberty except by proper procedure. Section 24 guarantees a fair hearing wherever a court or other authority determines “the existence or extent of any civil right or obligation.” Section 37 lets any person go to the High Court to enforce those guarantees. A statute that places a Minister’s opinion permanently beyond judicial question cannot sit easily beside a Constitution that promises everyone a hearing before their rights are finally settled. Where the two collide, section 4 says the Constitution wins.
And yet—here is the knot—the State Proceedings Act, as read in cases from UDP v Attorney General to Ya Kumba, has generally been taken to bar interim injunctions against the State, leaving claimants with a declaration after the fact. That rule may leave a person with no way to hold his ground while a court decides whether the State’s action is lawful. An ex parte order preserving a person’s presence for seven days sits differently from an order undoing what has already been done, but whether that distinction holds, or whether it falls within the shadow of the same cases, is exactly the question our appellate courts have not yet settled.
This is not a distant worry. In April 2024, three Gambian representatives to the ECOWAS Parliament won an ex parte order restraining the Clerk of the National Assembly from removing them from their seats. Three days later, after hearing both sides, the same judge set her order aside, holding that the State Proceedings Act, as applied by the Supreme Court, left her with “no authority to grant an interlocutory order against the State.” The same threshold question may surface again on July 9. Indeed, a published decision of a higher court is binding on the lower court. The principle is unambiguous: while a trial judge remains free to argue in a future case that a high court’s decision is wrong, it may not disregard binding precedent in a case governed by that precedent. See Baez-Sanchez v. Sessions, 872 F.3d 854, 856–57 (7th Cir. 2017).
If three sitting parliamentarians could not keep their seats while a court weighed the legality of their removal, what protection can a private person expect while a court weighs the legality of his banishment, when what hangs in the balance is not a title or salary, but home, settled life, and family? A fixed-term office can be restored, and back pay can follow. A person removed from the country cannot be brought back so easily. A rule may work when money can fix the harm, but not when the harm cannot be undone. Once he is gone, will a Gambian court even have him before it, or jurisdiction over his case, to grant whatever relief it later finds he was owed? A remedy that arrives after removal may be no remedy at all.
Nor is the principle new. In 1615, in James Bagg’s Case, the King’s Bench held that removing a man from office without a hearing was bad, and issued the writ to restore him. Centuries later, in Ridge v Baldwin, the House of Lords said the same of dismissal without notice. More recently, in M v Home Office, it confirmed that public officers acting unlawfully may remain answerable to an injunction notwithstanding the Crown’s general immunity. None of that decides Mr. Schwarze’s case. But the tradition our law inherits is simple: a person is owed notice and a hearing before an arm of the State that puts him out, whether from an office or from a country. And a statute that removes the preservation of rights or the status quo while a court decides, in my opinion, creates a tension under the 1997 Constitution. After all, the constitutionality of the State Proceedings Act has not been decided. The Apex Court interprets its application only as it relates to the injunction. A question a tribunal does not address is not one it decides. See Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”).
So this is no criticism of the order granted this week, which did what emergency relief is meant to do: hold the position steady until both sides can be properly heard. It is an invitation to look at what stands behind it. The 1965 Act has gone essentially untouched for sixty years, and the reform now before us is the moment to fix what it got wrong. The rule barring interim relief against the State deserves the same second look. Cases like this are how we learn whether our laws still fit the Constitution we chose to live under—and whether it is finally time to look again at all of it.
The author’s longer treatment of section 17(2) of the State Proceedings Act, “A Remedy That Comes Too Late,” is available on request to interested lawyers, students, and legal enthusiasts.
