Hon. Sarjo Barrow, Esq.
Justice Ebrima Jaiteh’s acquittal of Abdoulie Sanyang on charges of “interference with judicial proceedings” did more than settle one case; it drew an important constitutional boundary for The Gambia, marking where court protection ends and free speech begins.
The case centered on the sub judice rule, a common law principle that bars public commentary on ongoing trials. The reasoning makes sense on its face: outside voices shouldn’t warp the course of justice. But how far should this go in a country like The Gambia, where professional judges—not juries—decide cases?
Justice Jaiteh’s ruling was measured and grounded in constitutional principles. As I’ve argued before, the common law sub judice concept has limits under the 1997 Constitution. Being disrespectful or critical, however distasteful, isn’t automatically criminal. For speech to cross into criminal interference, there must be actual harm, or at least a genuine risk to fair proceedings, plus intent to interfere. Otherwise, we’re punishing opinions rather than protecting justice. Unlike the U.K.’s strict liability approach, The Gambia is a constitutional republic closer to the American model. This balance should give policymakers and judges confidence that free speech and judicial independence can coexist and even strengthen each other.
This thinking has deep roots in common law tradition. Justice Jaiteh drew on the influential case of Ambard v. Attorney General for Trinidad and Tobago (1936), in which the Privy Council reminded us that “justice is not a cloistered virtue.” Courts shouldn’t operate behind closed curtains, shielded from public eyes or voices. They exist within society and need to be resilient enough to handle scrutiny. Context matters here: before 1997, The Gambia didn’t have full judicial independence, and our final appeals went to the Privy Council, not our own Supreme Court. So when Justice Jaiteh looks to this precedent, he’s drawing on the institution that once served as our highest court.
The Gambian constitution reinforces this balance. It guarantees both fair, impartial courts and freedom of expression. These aren’t competing values. A fair trial rests on evidence and law, not on muzzling public debate. And free expression includes the right to question, criticize, and discuss judicial decisions.
There’s a useful comparison to be made with the United States. The American Bar Association’s Model Rule 3.6 on trial publicity doesn’t gag the general public or silence every lawyer. These rules, mirrored across state professional conduct codes, mainly apply to attorneys involved in a case—people with insider knowledge and professional obligations to the court. Even then, they only restrict statements with a “substantial likelihood” of “materially prejudicing” a case. The focus is on genuine threats to fairness, not uncomfortable criticism.
The U.S. Supreme Court narrowed this further in Gentile v. State Bar of Nevada (1991), holding that lawyers don’t forfeit their free speech rights and that any restrictions must be precisely drawn. The aim is to protect trial integrity, not punish inconvenient speech. In Sheppard v. Maxwell (1966), the Court made clear that when publicity threatens fairness, judges bear the primary responsibility for managing their cases, through scheduling adjustments, courtroom controls, and clear rulings, rather than broadly silencing discussion.
These lessons carry even more weight in The Gambia. Our judges are trained professionals who decide cases on admissible evidence, not radio chatter or social media posts. When speech genuinely intimidates witnesses or obstructs justice, the law can and should respond. But when the speech is merely critical or unpopular, criminal punishment becomes a crude and risky instrument.
There’s a deeper democratic principle here, too. Justice Louis Brandeis wrote in Whitney v. California (1927) that the answer to harmful speech is usually “more speech, not enforced silence.” The best response to a wrong statement is a better explanation, a well-reasoned judgment, or a public correction. Not prosecution.
Public trust in the judiciary grows through fairness, transparency, and solid reasoning. It doesn’t grow when criticism is treated as a crime. Respect built on fear is brittle; respect earned through integrity endures. After all, judicial opinions affect parties’ rights, yes, but they’re published for everyone to see. Transparency and fairness are what build lasting trust in the courts.
The Sanyang decision also reinforces another fundamental criminal justice principle from Woolmington v. DPP (1935): the burden of proof stays with the prosecution. Courts don’t lower standards because of public noise or political pressure. That discipline is part of what judicial independence means.
The broader message from Justice Jaiteh’s ruling is reassuring. The courts are saying they’re strong enough to hear criticism and principled enough to punish only genuine interference. That’s how constitutional democracy should work.
Ultimately, fair trial rights protect the courtroom, free expression protects the public square, and professional rules guide the lawyers who appear before the court. Confusing these categories helps nobody.
For The Gambia, the path ahead is clear: protect trial integrity vigorously, but guard free speech just as vigorously. Our justice system will be stronger for it. And when speech goes off track, the first response in a democracy shouldn’t be silence. It should be reason, openness, and, when necessary, more speech.
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.
