By Sarjo Barrow, Esq.
A recent judgment from a common-law jurisdiction clarifies that “practiced,” as a constitutional qualification for judicial office, covers not just courtroom appearances but also chambers work related to litigation. The judgment also states that the appointing authority must provide year-by-year evidence of actual practice. Vetting, approval, or a formal recommendation by a judicial service commission does not count as such evidence. Approval alone is not proof. Both points now set the standard for assessing Mr. Edi Faal’s nomination as Chief Justice.
In an earlier op-ed, I expressed support for Mr. Faal’s nomination and highlighted the main issue: his constitutional qualification. I maintained two main points. First, the judicial service is unavailable to him, as his résumé shows no prior judicial experience. So, section 139 leaves only one option: twelve years of practice as a legal practitioner before a court with full civil and criminal jurisdiction in a common law country. Second, for the meaning of “practiced,” I advocated for a balanced interpretation: being admitted at the requisite level and having twelve years of active practice, whether in court or in chambers, no matter the type of litigation. Simply holding a license is not enough; there must be ongoing, active practice.
After I published my earlier piece, my colleague, lawyer Famara Singhateh, pointed me to a judgment addressing this exact issue. In James A. L. Bristol KC v The Judicial and Legal Services Commission and Eddy David Ventose (Grenada, July 7, 2026), Justice Raulston Glasgow annulled the appointment of a Justice of Appeal—a respected professor and former High Court judge whose ability was not in doubt—because the appointing commission did not show he “has so practiced” as an advocate for the required fifteen years. The appointment was declared “unconstitutional, null, void and of no effect.” The Gambia recently said goodbye to Chief Justice Hassan Bubacar Jallow, whose distinguished public service and right to serve were never in question. To maintain the constitutional order he upheld, his replacement must adhere to proper procedures, as this judgment clarifies what is required for a lawful appointment.
As explained earlier, Mr. Faal’s work in the United States cannot be considered, since the National Assembly has not passed a law naming the US as a common law country under section 139(5). So, his twelve qualifying years must come only from the United Kingdom and The Gambia. His public résumé shows he was admitted in the UK, but it does not confirm he practiced there. Public records and reports say he was called to the Gambian bar in 1993 and started chambers with the first Attorney General of The Gambia, the Honorable Lamin Saho. However, it is still unclear what kind of work that chambers did before the High Court. This gap in the evidence is exactly what the recent judgment is instructive about.
The Gambia Bar Association has opined that Mr. Faal is not constitutionally qualified, citing section 139(2) but without details. It seems the Bar believes “practiced” means appearing in person before the High Court, which would rule out chambers work, legal advice on High Court matters, or the preparation of briefs. If this is their view, I respectfully disagree, and the Ventose decision supports my position. The court in Ventose held that practice is not limited to in-person oral advocacy. Instead, it covers all litigation activities: taking instructions, doing research, “preparing pleadings and witness statements, attending to case management matters,” interlocutory work, alternative dispute resolution, and court appearances. Written submissions “are just different ways of conducting advocacy.” This view helps Mr. Faal. Caribbean law uses “advocate,” a narrower term from the old split legal profession, but the court said it covers more than just courtroom work, excluding only teaching, scholarship, and work unrelated to litigation. Section 139(2), on the other hand, uses “legal practitioner,” a broader term for a unified profession. If “advocate” includes chambers litigation work, then “legal practitioner” does too. My middle ground still stands.
But the second part of the ruling needs closer attention, and this is where the nomination faces real difficulty. “Practiced” is an active requirement that must be proven with evidence, not just assumed. The Ventose court demanded solid proof. It was not enough for the nominee to be highly qualified, have support from a former Chief Justice, or be willing to serve. The nominee had to be “shown to have been so utilized,” with proof of the cases handled and the years of practice. In that case, the commission had vetted, approved, and appointed the nominee in good faith, and the court found no bad faith. Still, the appointment was annulled, with no special consideration for the usual presumption of regularity or the commission’s judgment. Constitutional qualification is a matter of fact, and the appointing authority must provide the evidence. The only exception was the use of the de facto officer doctrine, which preserved judgments already made. This doctrine corrects mistakes but does not permit the ignoring of constitutional rules.
There is another issue the judgment sheds light on which is applicable to The Gambia. Due to recent legal changes, the Legal Practitioners Act requires a practicing certificate for active lawyers. In Ventose, a similar rule in Barbados was important: the nominee had a certificate for only two of the years he claimed, so his recognized practice dropped from over ten years to just four years and nine months. Lawful practice now means having a practicing certificate. For each year in The Gambia that counts, the main question is not how much work Mr. Faal did, but whether he had the required license—a practicing certificate under the LPA. This only matters if the rule has been in place since 1993. If not, Mr. Faal may have already met the twelve-year requirement before the rule began.
In conclusion, my commitment remains clear. While I support this nomination, as I have said before, my main loyalty is to the Constitution, which requires evidence before confirmation, not after a challenge. Supporters of the nomination must now provide documents showing the certificated, qualifying years: the specific cases handled, the years, and the courts involved. If this evidence exists, Mr. Faal is qualified, and the matter is settled. If not, section 140 gives a solution: the most senior Justice of the Supreme Court, Justice Cherno Jallow, acts as Chief Justice until a proper appointment is made, or until the National Assembly passes a law to recognize Mr. Faal’s American experience. This is not blocking the process; it is the Constitution working as it should.
