By Hon. Sarjo Barrow, Esq.
Walk into the High Court in Banjul with a grievance, and you will quickly discover that the law has a vocabulary problem. This limitation is not unique to lawyers but disproportionately disadvantages ordinary citizens. It does not matter if you are challenging the government or trying to recover money a neighbor owes you. Before a judge reads a single word about your case, you must produce the right document with the right title filed the right way, and often sworn before a Commissioner for Oaths. Miss any of it, and your case may be thrown out. But you’d better pray and hope that Senior Counsel Drammeh is not on the other side, because your case will definitely be thrown out. Not because you were wrong on the merits. Because you filled in the wrong form.
For most Gambians who cannot afford a lawyer, this is not an inconvenience. It is the end of the road. Period.
Two Problems, One System
The rigid forms in Gambia’s courts create two distinct but equally serious problems.
The first is the one that gets attention: public interest litigation, in which citizens seek to hold the government accountable. To challenge an unlawful government action in the High Court, you must correctly invoke Section 37 of the Constitution, file an Originating Motion on Notice, attach an affidavit, identify all respondents by their proper legal titles, and serve the papers in the prescribed manner, all before a judge evaluates whether your complaint has any merit. Take, for example, the controversial twenty-dollar airport security levy collected at Banjul International Airport. The recent National Audit Office found that the levy caused the state to incur financial losses of at least 274 million dalasis. Moreover, the audit revealed that IATA wrote formal objection letters. Citizens continue to express their frustration with the levy, yet no single suit has been filed to challenge the action. The answer does not lie in indifference. Instead, it is the procedural mountain between an aggrieved traveler and a courtroom, which remains largely unclimbed.
The second problem is less discussed but affects far more people every day: the ordinary Gambian citizens trying to resolve disputes among themselves. A trader who was not paid for goods delivered. A tenant whose landlord refuses to return a deposit or requests three months’ rent in advance, or a payment in dollars contrary to the law. A scrupulous realtor rips off a family member due to the unregulated real estate market or the lack of access to a database to check or verify titles, even for a nominal fee, or a worker whose wages were docked without cause.
Every one of these people who walks into the courtroom must confront the same system, and they all face the same wall. Gambia’s ordinary civil procedure, inherited from Victorian England, requires a correctly endorsed writ of summons followed by formal pleadings, prescribed timelines, and a multi-stage exchange of documents with specific titles and specific content. Getting the starting document wrong can be fatal to the claim. And there is no separate, simpler track for smaller disputes. A market trader suing for ten thousand dalasi handles the same machinery as a corporation suing a bank for ten million. Still, citizens wonder when the Chief Justice raised concerns about the 10,000-case backlog as of this January.
England Fixed It; America Has Always Done It; The Gambia Can Learn from It
This is not a problem without solutions, as England and the United States have shown.
England fixed the complex problem first. In 1999, Lord Woolf completed a review of English civil justice and found it too expensive, too slow, and too inaccessible to the average citizen. The reforms that followed were sweeping. The writ of summons, the originating summons, the originating application, the originating motion—the entire vocabulary of rigid starting documents—was replaced with a single unified Claim Form. Plain language replaced archaic terminology. The overriding objective set out in the English new rules is that courts must deal with cases justly, at a proportionate cost, and provide access to even unrepresented ordinary citizens. Simply put, England got rid of the barriers 26 years ago that Gambia still requires. The Bahamas did too. The legacy problem is not limited to the judiciary.
Additionally, in the 1970s, England developed the small claims court, which has continued to improve over time. The idea is to have open access to justice for people without a lawyer. Under this model, any claim of 10,000 pounds or less is filed in such a court. The hearing is informal, evidentiary rules are relaxed, and the court provides active guidance to people who appear without a lawyer. Significantly, a small claims judge is expected to help unrepresented parties understand the process, ask questions, and present their case. The idea is simple. It anticipates that ordinary citizens will use the court without a lawyer.
Unlike England, which had to amend its rule, the United States has, from the word go, taken this path. Federal Rule 8, governing civil complaints in federal court, requires only a short and plain statement of the claim and a demand for relief. No prescribed form. No mandatory affidavit. To get access to any courthouse in the U.S., all you need is the simplified forms available at courts or online, or write on a piece of paper what happened, what law was violated, and what remedy you want. Nothing more. It is the courts that decide if your claim has merit. Not technical barriers to justice. The rationale is not limited to the federal court. States also operate small claims courts with thresholds ranging from a few thousand to twenty-five thousand dollars, where the process is informal and no lawyers are required. A fruit vendor in Mississippi and a landlord in Wisconsin can both access a court designed for use by individuals, not just lawyers.
Common Law Objection, and Why It Does Not Hold
The “talking heads” and defenders of the current system will say that The Gambia is a common law jurisdiction. Its legal traditions descend from good old England, and the current procedures are inherited. After all, the then-Criminal Procedure Act says that practice must mirror that of Her Majesty’s High Court in England. The arguments failed for two reasons.
Firstly, Good old England walked away from this rigid procedure in 1999. Therefore, if following England should mean anything, it is to stop preserving a Victorian system that England found too cumbersome for its citizens a generation ago. Literally.
Secondly, the fundamental problem is constitutional. The Gambia, which defenders may want to protect under English law, is governed by the dictates of the 1997 Constitution. This distinction is legal because the Gambia resembles the United States. Not England. Since 1997, the Constitution has declared itself the supreme law of the land. (Compare 1965 & 1970 Constitution). The National Assembly is subject to constitutional limits, unlike the Westminster Parliament, which is the Alpha and Omega. Under the 1997 Constitution, the judiciary has the power to strike down Acts of the National Assembly when they violate the Constitution. A power, English courts, even the U.K. Supreme Court, do not possess even today. Thus, the Gambia illustrates the hallmarks of a constitutional republic, not a parliamentary monarchy. Therefore, the procedural forms Gambia courts retain are fossils from a constitutional arrangement that The Gambia deliberately and permanently left behind in 1997. Even under the dark history of dictatorship, this foresight changes everything.
Constitutional scholars like Dr. Satang Nabaneh and others will note the distinction clearly: unlike the Parliament of the United Kingdom, which can legislate on any subject, the National Assembly of The Gambia must exercise its functions in accordance with the Constitution. That, my friends, is the American model, not the British one.
The Mismatch and What It Costs
The Gambia’s 1997 Constitution, which is designed to ensure citizens’ access, also established judicial autonomy for the Gambia. Yet the court procedures that remain today are built only for trained lawyers. Even then, because of the archaic rules and vocabulary, we have seen many great lawyers fall victim to it. This gap has a real cost. The Constitution promised an enforceable bill of rights, but the rights largely remain theoretical for anyone who cannot afford a lawyer. Ask those detained for more than 72 hours about the mandate. And to the large backlog of 10,000 cases, it means disputes that could be resolved quickly with a simplified form or forum go unresolved, fester, or are handled outside the law entirely because litigants either despair or completely lose faith in the system. The result creates an imbalance in which the courts serve the educated and wealthy (Kairaba Boys, if I may borrow the term) far more reliably than the ordinary citizen, the very opposite of what a court system is supposed to do.
A Modest Proposal
The main takeaway here is that reform will not require wholesale importation of foreign law. It’s simple to borrow salt from the next-door neighbor. Gambia needs to adopt two practical ideas that have already proven themselves.
The first is a simplified pleading rule for constitutional claims. The Chief Justice could issue a Practice Directive on Monday to implement this simplified pleading. Under the Constitution, the Chief Justice already has the authority to issue orders and directions as deemed fit, so an act of the National Assembly is not necessary. The Chief Justice can issue a directive that will authorize any citizen to commence a constitutional application by filing a plain statement of facts, naming the constitutional provision at issue, stating the relief sought, and swearing a short verification. No prescribed motion title. No mandatory documentary sequence. Just enough information for the government to know what it is being asked to answer. To illustrate, take the $20 airport controversy. All a citizen needs to do under the U.S. style pleading, which England now accepts, is to write: “I paid $20 at the airport on this date. No law passed by the National Assembly authorized that charge. I want my money back, and I want the court to declare the levy unconstitutional.” A court could work with that, and justice could begin. Think about it.
The second practical idea is to introduce a small claims court. Disputes below a modest threshold, perhaps fifty thousand dalasi as a starting point, should be heard in a separate, informal track with no mandatory legal representation, relaxed pleading and evidentiary requirements, and a judge expected to help parties navigate the process rather than penalize them for procedural missteps. This is not a radical idea. England built it in the 1970s. The U.S. has operated versions of it since the 1930s. Jamaica, Kenya, and Trinidad and Tobago have all adapted the concept to their common law systems. The Gambia, with a constitution that explicitly places citizens at its center, has every reason and no good excuse not to do the same.
Pro se litigants, those who represent themselves, are not an embarrassment to the legal system. They are its truest test. A system that functions well only for people who can pay a lawyer is not delivering justice. It is delivering access to a process that produces justice for some.
The Constitution is written for all citizens, yet the courthouse door in Banjul is too heavy for most people to push open. Because the courts give the Constitution life, the door should be light, not heavy.
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.
