By Sarjo Barrow, Esq.
I read on The Alkamba Times something that has stayed with me. A man accused of a serious crime spent nearly eight years waiting for his day of reckoning. The state called its witnesses and closed its evidence. Then, before any judgment was rendered, the state announced it would not proceed. The case dissolved. There was no conviction, no acquittal, no finding of any kind. He walked free, yet nothing was settled, because nothing in law prevents the state from charging him again tomorrow for the same thing.
This isn’t a hidden loophole. Our system was designed this way, and even recent reforms meant to modernize it did not change this part.
When the National Assembly passed the Criminal Procedure Act of 2025, it replaced a code that had been in place since 1933. This was a major step forward. As discussed in earlier op-eds on reforms in The Gambia, the Act introduced probation and parole, plea deals, better options for minor offenders, greater protection for witnesses and victims, and clearer bail rules. These changes fixed many problems. But as this case shows, one serious issue remains, and the eight-year case is proof of that gap.
The key issue comes down to the difference between two words: discharge and acquittal. An acquittal is final. If a court acquits you, the state cannot try you again for the same offense. A discharge is not final. You are free for now, but you could be charged again later. These two outcomes may seem similar, but legally, they are very different.
Here’s the problem. When the state decides not to continue, a step called entering a nolle prosequi, the accused always gets a discharge, not an acquittal. This can happen at any point, even after all the evidence is presented, and the court has no power to stop it. The rule against being tried twice only applies if there is a verdict. If a case ends without a verdict, that protection does not apply. This leaves the accused in a state of uncertainty, neither cleared nor found guilty.
There is a twist that makes it worse. The more serious the charge, the thinner the protection. A person facing a minor matter in a magistrates’ court can end up better shielded, because there a late withdrawal can be turned into an acquittal under Section 78. In the High Court, where the gravest cases are heard, no such conversion exists under Section 74. The people with the most at stake are given the least security.
This problem affects more than just the accused. The complainant who waited eight years also got no answer. Without a verdict, no one gets closure. Victims deserve a final decision just as much as the accused, and a system that gives neither has failed both sides.
Why does this reach all the way to the Constitution? Because the state’s power to drop a case is no minor rule the National Assembly invented. It flows from Section 85 of the Constitution, which gives the Director of Public Prosecutions the authority to start, take over, or discontinue any case. That power rests on solid constitutional ground, and it should not be casually disturbed.
It might seem fair to argue that treating High Court defendants worse than those in magistrates’ courts is unfair and violates equal protection. But under The Gambia Constitution, our guarantee of equality is not as broad as in countries like the United States or India. The Gambia Constitution mainly prevents people from being treated differently because of their identity, such as race, gender, or religion, not because of which court hears their case. So a direct challenge to this law would probably not succeed, since the difference is not about personal identity.
Challenging a specific decision to drop a case would also fail under Section 33(7), because our Constitution clearly says that courts cannot question that choice on equality grounds. That option is completely closed.
But notice exactly what that clause covers. It protects the decision to end a case. It says nothing about the different consequences the law attaches afterward, the discharge that leaves you exposed rather than the acquittal that truly sets you free. Whether a court may examine that gap has never really been tested. It is an open question, and precisely the kind our constitutional review should take up if the National Assembly fails to act.
So what can we do? There are two answers: one is a quick fix, and the other is a longer-term solution.
The quick fix does not need a constitutional amendment. The National Assembly should ensure that when the state drops a case after all the evidence has been presented, the result is an acquittal, not a discharge. This is not radical. The 2025 Act already does this in magistrates’ courts, and it applies when a judge finds there is no case to answer. This change would simply make the High Court follow the same logic. The prosecutor would still have the power to end a case, but the outcome for the person who has gone through the whole trial would be different. This is important to prevent misuse of the process and to stop unnecessary prosecutions when the evidence is weak.
The longer-term solution should be part of the ongoing constitutional review. Two questions are important: Should protection against being tried twice start once jeopardy attaches, rather than only after a verdict, as in the United States? And should the rule that protects prosecution decisions from review also protect the legal consequences that follow those decisions?
Fairness and due process are not just legal ideas. They are what separate a real justice system from a state that can keep someone under threat of prosecution forever. Eight years is far too long to wait for a decision. Anyone who waits that long deserves a verdict that truly matters.
