By Sarjo Barrow, Esq.
The Supreme Court followed the law as it should. The real problem is a system in which doing things by the book can still lead to unfair outcomes.
Nearly four years after Momodou Lamarana Jallow was killed at the Friendship Hostel, Kumba Sinyan’s murder trial must begin again from scratch. She had already entered her plea, testified in six sessions, and faced both examination and cross-examination. Now, all of that is technically lost. When Justice Sidi K. Jobarteh went on maternity leave, a new judge took over. Because the accused did not agree to continue with the existing record, the law says the whole trial must restart. The State says some witnesses have since left the country. Not everything is truly lost: if a witness has died or left the country, their earlier testimony—already tested by cross-examination—can be used at the retrial under the former testimony rule. Still, this is just a temporary fix for a problem the system should not have created in the first place.
It may be tempting to blame the judges, but that would be a mistake. The Supreme Court applied the law correctly. The real problem lies in the outdated system we inherited and never properly reformed. The Sinyan case makes these issues clear.
The Court Was Right
We should acknowledge the value of the ruling. By dismissing the Attorney General’s challenge and upholding the High Court Practice Directions of 2013 and 2019, the Supreme Court protected an important principle. These directions require a new hearing, or trial de novo, when a new judge takes over a criminal case, and the accused does not agree to continue from where the previous judge left off.
Why does this matter? In The Gambia, even the most serious cases are decided by a single judge, not a jury. That judge decides all the facts. In our system, credibility is judged by watching witnesses as they testify and answer questions. A judge who did not see the witnesses cannot judge them fairly. The de novo rule is not just a formality; it is essential for a fair trial.
So, the Court followed the Constitution. The problem is that it could only uphold part of it.
A Right Divided Against Itself
Section 24 of the 1997 Constitution promises both a fair hearing and a hearing within a reasonable time, before an independent and impartial court. Section 19 says that anyone arrested must be brought before a court within seventy-two hours. These are not competing values; they are two parts of the same right.
Our current process makes these two rights conflict. To protect the right to a fair trial, the court orders a restart. But this restart can take years and causes witnesses to disappear, breaking the promise of a timely trial—a problem our courts already face with growing backlogs. Worse, when witnesses are missing in the second trial, the right to a fair trial is also at risk, along with the public’s interest in seeing serious cases properly tried. A rule meant to ensure fairness ends up threatening both rights. The problem is not with the ruling, but with the system that required it.
Asked to Practice Like London
To see how we got here, look at the instructions we were operating under for most of a century. The Code that the Criminal Procedure Act, 2025 has now repealed—our old Criminal Procedure Code—directed, in the colonial fashion, that our criminal practice follow, as nearly as circumstances allowed, the practice of Her Majesty’s High Court of Justice in England.
Consider what this really meant for those who had to follow it. For generations, most lawyers here had never been to England, let alone studied at an Inn or worked at the Old Bailey, yet the law told them to run trials as they were done in London. Without firsthand experience, or unless they watched an episode of Law & Order: UK, how could a young lawyer in Banjul know what that looked like? In practice, they relied on textbooks, shared knowledge, and the memories of senior lawyers who might have seen the real thing. The ‘England’ we copied was never the real, living England. It was just an image, and that image was never updated.
The 2025 Act quietly removed that instruction, so there is no longer any rule tying our practice to the English courts. But the habits from the old rule remain. Open-ended delays, trials split into parts over years, and the tendency to restart from scratch when a new judge takes over—all these practices continue. Now, the sequence itself is law: sections 238 and 240 of the 2025 Act take us from plea straight to the prosecution’s first witness. No law requires the damage—the years-long delays come from the open-ended adjournment power in section 239, and the restart from the Practice Directions. The rest is just habit. The Sinyan case shows what happens when these habits affect a case with so much at stake.
What England and America Actually Do Now
The final irony is that England, which we were told to copy, stopped doing these things long ago.
Modern English courts settle difficult issues before trial. At a Plea and Trial Preparation Hearing, the plea is entered, and a fixed timetable is set. Decisions about evidence and legal points are made in advance and are binding on the trial judge, as stated in section 40 of the Criminal Procedure and Investigations Act 1996. Fitness to stand trial is decided early under the Criminal Procedure (Insanity) Act 1964, and any disputed confession is handled in a separate hearing under section 76 of the Police and Criminal Evidence Act 1984. Only after all this does the trial begin, and it runs continuously, day by day, until a verdict is reached. Because serious cases are decided by a jury, if a judge becomes ill or is transferred, the jury still handles the facts.
The United States achieves the same goal in a different way, using pretrial conferences, motions to determine admissibility in advance, and the Speedy Trial Act, which sets deadlines to keep cases moving. Consider Michael Sang Correa. A Gambian, tried in Denver in 2025 for torture committed in The Gambia, before a Colorado jury—the discovery disputes, including the defense’s request to depose witnesses back home, settled before trial, and the evidence was then heard continuously over five days to a verdict. Gambian victims found in a foreign courtroom the front-loaded, continuous trial that our own courts still struggle to give them.
Both systems settle major legal and evidentiary issues before the trial starts, then hear the case in one continuous session. Most trials finish in a few days, and even the most complex rarely last more than two weeks. In contrast, our system does the opposite: we enter pleas, start the trial, and then pause and restart for years whenever there is a dispute, such as an allegation of a coerced confession. For example, the ongoing UTG student murder case risks collapsing, as discovery and fact-finding barely begin before the first witness testifies. This creates chaos, almost like trial by ambush, even for the prosecution. Our problem is not that we copied England badly, but that we hold on to outdated practices from 1933.
The 2025 Act Had the Pen—and Left the Gap
The new Act was an opportunity to fix these problems. It modernizes many areas, like plea agreements, parole, witness protection, and bail rules. Its stated purpose is to “re-enforce the right to fair and speedy trials … by specifying reasonable timelines.” But on the specific issue highlighted by the Sinyan case, it kept the old system.
Three details show this clearly, and each can be found in the law itself:
- The Act gives lower courts a practical rule for when a new judge takes over. Section 345 allows a magistrate who inherits a partly-heard case to continue using the existing record, while the accused can still ask for witnesses to be recalled. But for the High Court, where all murder cases are heard, there is no such rule. Instead, the default is to restart the trial, as set out in the Practice Directions.
- It keeps the old process: after the plea, the prosecution’s first witness is called immediately (sections 238 and 240), with no pretrial conference to resolve issues such as admissibility, disclosure, or fitness.
- It still allows for open-ended adjournments (section 239) rather than requiring that a trial, once started, continue until it concludes. It also fails to translate its promise of “reasonable timelines” into real deadlines.
This result is odd: the lower court has a rule that allows continuity, but the highest court, which handles the most serious cases, must restart a four-year case from the beginning.
A Fix That Honors Both Halves of Section 24
We do not need to get rid of the 2025 Act. We just need to finish the job. Four changes would solve most of the problem:
- Give the High Court its own succeeding-judge rule, modeled on the Act’s own section 345: the new judge continues on the record, and prior rulings survive, but the accused may apply to have named witnesses recalled where credibility is genuinely in issue.
- Add a required pretrial conference between sections 238 and 240. This would resolve issues like fitness, admissibility, disclosure, and the witness list before the first witness is called, with decisions that would apply even if a new judge takes over.
- Make trials continuous. Once a trial begins, it should run day-to-day to a verdict, with adjournments only for recorded necessity.
- Give the promise of a speedy trial real power by setting a clear legal deadline, except when both sides agree to wait or in rare situations.
There is a simple logic to this. Under the long-standing common-law rules, a case is not considered “part-heard” until witnesses start to testify. The same idea appears in another rule: in the American system, jeopardy attaches in a bench trial when the first witness is sworn (Serfass v. United States, 420 U.S. 377 (1975)), and in a jury trial when the jury is sworn in (Crist v. Bretz, 437 U.S. 28 (1978)). Both traditions treat the first witness as the true start of the trial. This means all pretrial work can happen—even if a different judge later takes over—without causing a de novo restart. In other words, we do not have to choose between a fair trial and a speedy one. The current law just makes it seem that way.
So, Kumba Sinyan’s retrial is not any judge’s fault. It is the predictable result of a legal code we never finished updating. The Supreme Court did its job. Now, it is up to the National Assembly to give our courts a law worth applying as faithfully as they applied this one.
