By Hon. Sarjo Barrow, Esq.
The views expressed are the author’s and do not necessarily represent the views of the United States Department of Justice or the United States.
In the United States, except for a wobbler, the benchmark for what constitutes a felony is any crime punishable by more than one year. Yet, the question of how a constitutional republic screens a felony charge before binding an accused to trial is not a novel one.
For the world’s oldest written constitutional democracy, the framers settled this issue two centuries ago by embedding the answer in the Fifth Amendment, which commands in unambiguous terms: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” In Hurtado v. California, 110 U.S. 516 (1884), the US Supreme Court affirmed that this grand jury clause is the constitutionally mandated screening mechanism at the federal level, the institutional guarantee that no citizen faces a serious criminal trial without independent citizen review of the prosecution’s case.
But the American federal model does not tell the whole story. The Supreme Court in Hurtado confirmed that the Fifth Amendment grand jury clause was never incorporated against the states, meaning American states were free to experiment with alternative screening mechanisms. This was precisely the issue in Hurtado. As the Court announced, the word “due process” in the 14th Amendment does not require states to use a grand jury indictment for felony prosecutions, including murder. States like California are free to use instead an “information” process—a magistrate’s examination—to bring felony charges.
Since then, roughly half of the U.S. states have retained or adopted the grand jury. The other half, including Wisconsin, the author’s home state, chose instead the information system: the prosecutor files a charging document, and a judicial officer, rather than a citizen panel, performs the screening function.
Wisconsin made its institutional answer clear in statute. Under Wisconsin Statute section 970.03(1), a preliminary examination is a mandatory hearing before a court to determine whether probable cause exists to believe the defendant has committed a felony. The requirement is not optional. A defendant charged with a felony may waive it, but only the defendant may do so. Not the prosecution. Significantly, a court must not accept or entertain a plea unless a judge found probable cause at the preliminary hearing and the defendant was bound over for trial or made a valid waiver. However, if the court finds no probable cause, the felony charge is dismissed. The Wisconsin informational system works legitimately because the preliminary hearing is its non-negotiable backbone.
The parallel to The Gambia is direct. Like Wisconsin, The Gambia operates an information system. The Director of Public Prosecutions files an information and proceeds to the High Court without a grand jury. Like Wisconsin, our criminal procedure is governed by statute rather than constitutional text that expressly mandates a particular screening mechanism. But unlike Wisconsin, and unlike Ghana’s equivalent regime under Section 44(1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), The Gambia’s 2025 Criminal Procedure Act provides no mandatory preliminary hearing before a felony information may be prosecuted in the High Court. That gap is not merely an oversight in legislative drafting. In a constitutional republic, it is a constitutional problem as discussed below.
The Architecture of the Problem
Before the 2025 Criminal Procedure Act, criminal procedure in the Gambia was governed by the 1933 code, drafted during the colonial era. Many of our shortcomings in court are blamed on it. As such, the National Assembly, after consultation with relevant stakeholders, answered the call to amend it. This gave birth to the modern 2025 Act. Therefore, it is, in many respects, a commendable modernization of our criminal justice architecture. It introduces plea agreements, strengthens protections for victims, and reorganizes procedural rules that were long overdue for reform. While it still contains certain shortcomings, which is a conversation for another day, it also contains a constitutionally troubling silence.
Nowhere in its provisions, not in Part VI governing the commencement of proceedings in the High Court, and not in the provisions relating to charges and information, does it establish that before a person is bound over on a felony charge, a magistrate must first determine that there is probable cause to put that person on trial.
That silence is not a technicality. Section 225 of the Act requires the filing of an information along with a summary of evidence, authenticated by the Attorney General. But authentication is not adjudication. No magistrate or judge independently examines whether the evidence in that summary actually constitutes probable cause. The information system, as currently structured, gives the executive, specifically the DPP or the Attorney General, unilateral power to subject a citizen to High Court felony proceedings with no independent judicial check whatsoever.
This matters most for accused persons facing non-bailable offenses. For them, the filing of an information is not a legal formality. It is the beginning of what may be an indefinitely extended detention. The accused is remanded in custody. The prosecution then calls its witnesses, sometimes over months or years. Only when the prosecution finally closes its case does the accused have the right to make a no-case submission, to argue that the prosecution has failed to establish a prima facie case requiring any defense at all. Objections to the charge itself offer no earlier relief: under section 230 of the 2025 Act, formal defects in the information may be cured by amendment without resulting in a discharge. Procedural challenges to the charging instrument, in other words, do not secure release.
Consider what this means in practice. A person against whom the prosecution has no sustainable case, one who would succeed on a no-case submission the day after the prosecution closes, may nonetheless spend years in pre-trial detention. The cure comes only at the end, like a diagnosis delivered after the patient has already suffered. That is not a procedural inconvenience. It is a structural injustice. Therefore, it’s no coincidence that many citizens resort to self-censorship against the government or the politicization of law enforcement because the state has this 800-pound gorilla it can activate. The Gambia has witnessed many types of cases against citizens for what many perceived as political.
The Constitutional Foundation
Under the 1997 Constitution, The Gambia is emphatically a constitutional republic, not in name only. The spirit and letter of the document is grounded in the rule of law, the separation of powers, and the enforceable protection of fundamental rights. Those commitments carry institutional consequences.
Article 19(3) guarantees that any person arrested and not released shall be brought before a court without undue delay and in any event within seventy-two hours. That provision addresses the initial moment of detention. But a citizen does not surrender their constitutional rights after the 72-hour mark. Nor does the Constitution stop caring about a citizen’s liberty after seventy-two hours. Thus, Article 19, read together with the fair trial guarantees of Article 24, reflects a broader commitment that the state must justify its restriction of liberty at every material stage of criminal proceedings, not merely at arrest or at the conclusion of trial.
The information system is a legitimate prosecutorial mechanism, but only where a compensating judicial safeguard fulfills the same screening function as the grand jury it replaces. Where a constitutional republic adopts an information system for prosecuting serious offenses, it inherits the same obligation that Wisconsin discharges through section 970.03 and Ghana discharges through Section 44(1) of Act 30: to ensure that an independent judicial officer examines the sufficiency of the prosecution’s case before a citizen is subjected to the full machinery of a High Court felony trial. Indeed, the Gambia has adopted the information system without providing the compensatory safeguard, and the result is a system in which prosecutorial discretion fills a space that judicial oversight ought to occupy.
The Lesson from Ghana
Our sister common law jurisdiction, Ghana, confronted precisely this question and answered it clearly. Under Section 44(1) of Act 30, a criminal case to be tried on indictment shall not be brought before the High Court unless it has previously been brought before a District Court and the accused person has been committed to the High Court. Committal proceedings are a procedural requirement for all cases tried on indictment, covering offenses punishable by death, classified as first-degree felonies such as murder and rape, or expressly designated as indictable by law. The District Court, which is the equivalent of our Magistrates’ Court, must be satisfied that there is a sufficient evidentiary basis before it sends the accused to the High Court for trial.
The threshold, as the Ghanaian courts affirmed in State v. Bisa [1965] GLR 757, is whether the charge is maintainable on the evidence. This is not proof beyond a reasonable doubt, but it is a genuine judicial examination of whether the prosecution has anything real to put before a trial court. If the District Court finds there is no case to answer, it discharges the accused. That discharge comes before the accused has been subjected to the ordeal of a full High Court trial, before months or years of pre-trial detention if bail is unavailable. It comes early enough to matter.
The Ghanaian model also serves a discovery function worth noting: committal proceedings give the accused early sight of the prosecution’s evidence and enable the proper preparation of a defense. Our 2025 Act’s summary of evidence, filed with the information but never tested before a magistrate, provides the paper without the process.
Under the Current Framework, a Patchwork Is Not a Right
A resourceful defense attorney can piece together a constitutional and statutory challenge that approximates a preliminary hearing, invoking Articles 19 and 24 of the 1997 Constitution to contest the lawfulness of detention on unjudiced information, filing an objection at arraignment under section 230 of the 2025 Act, moving to quash under section 232, or pursuing habeas relief under section 342.
But this patchwork of provisions was never designed to serve that function and offers no guarantee that it will. A court reading section 230 narrowly will confine it to formal defects in the charging instrument; a court reading section 232 conservatively will treat quashing as a remedy for structural irregularities rather than evidentiary insufficiency; and a habeas application under section 342 faces the difficulty that detention authorized by a valid remand order is not obviously unlawful on its face, however thin the underlying evidence may be. The result is that the accused’s access to what is, in substance, a probable cause hearing depends entirely on the disposition of the judge assigned to the case—a lottery no constitutional right should ride on. The National Assembly must therefore act explicitly, because a right that can only be vindicated through creative lawyering, and may be denied by an uncongenial bench, is not a right at all. It is a privilege, and the Constitution of this Republic demands more than that.
What the Legislation Should Provide
The National Assembly should amend the 2025 Criminal Procedure Act to establish the following minimum requirements. First, no information charging a felony shall be transmitted to the High Court unless a magistrate has conducted a probable cause hearing and determined that the prosecution’s evidence, if believed, would establish a prima facie case sufficient to require the accused to answer. Second, the hearing must be held within a defined period—thirty days would be a reasonable outer limit—with appropriate provision for complex matters. Third, for accused persons held on non-bailable offenses, the magistrate should have explicit power to recommend bail pending High Court proceedings where the evidence at the probable cause hearing is manifestly weak. Fourth, if the magistrate finds no probable cause, the accused shall be discharged, without prejudice to the prosecution’s right to refile on materially stronger evidence.
This framework does not tie prosecutors’ hands. It does not require the prosecution to prove its case at an early stage. It asks only what justice demands: that before the state puts a person through a High Court felony trial, and before it confines that person, potentially for years, while it prepares to do so, an independent judicial officer must first confirm that there is something real to answer.
The Cost of Inaction
Every day that the National Assembly defers this reform, someone in The Gambia may be sitting on remand in a non-bailable felony case that would never survive a no-case submission at trial. Literally, judges have acquitted and discharged accused persons sitting in Mile 2 for years for want of prosecution. This is not negligible conduct on the part of the prosecution; rather, it is a manifest lack of probable cause in the case, and more, a failure to prove the charge beyond a reasonable doubt, which forced them to feign ignorance of such cases.
For those people, they are not waiting for justice. They are experiencing its absence. At best, the wait ends if the court throws out the case for want of prosecution. At worst, the wait ends only when the prosecution finishes its case, not when it becomes clear that the case should never have been brought in the first place.
To conclude, while the 2025 reforms were an opportunity to build a criminal procedure system worthy of the Constitution that frames it, that opportunity was not fully seized. The introduction of a mandatory probable cause hearing before committal to the High Court would be among the most consequential improvements to our criminal justice system that the National Assembly could make. It would protect the innocent from protracted wrongful detention. It would discipline prosecutorial decision-making. And it would align our procedure with what our Constitution, fairly read, already demands. For the Gambia, our homeland, the Assembly must act now.
The author is a legal practitioner writing in a personal capacity.
