By Sarjo Barrow, Esq.
On April 14, 2026, the Gambia celebrated the 10th anniversary of Solo’s death, an event that signaled the beginning of the collective revolution to free the country from a 22-year dictatorship under Yahya Jammeh. Under the dictatorship, as revealed in the TRRC hearings, people disappeared. Citizens were arrested in the night on whispers and kept for months without charge. The police and security forces were instruments of personal and political terror. When Gambians voted him out in 2016, they voted for something different: a state that respects its citizens.
So it is worth asking a serious question about the Criminal Procedure Act of 2025, passed by the National Assembly last March: Did we get it right? Or did we quietly carry forward one of the most dangerous features of the old order—police power to arrest any citizen, any time, for any cognizable offense, without ever asking a judge first?
The Power No One Talked About
Section 22 of the CPA 2025 is the Act’s most consequential provision, and it passed with surprisingly little public debate. Whether that reflects a lack of publicity for the proposed legislation or insufficient scrutiny in the National Assembly is worth asking. What is clear is what the provision does: it gives every police officer in The Gambia the unilateral power to arrest any person without a warrant where the officer has reasonable suspicion that the person has committed a cognizable offense. Under the Act, Section 2 defines a cognizable offense as one that “on conviction may be punished by imprisonment for a term of one year or more,” or “on conviction may be punished by a fine exceeding ten thousand dalasis,” or “is declared by law to be a cognisable offence or to be an offence for which a person may be arrested without warrant.”
That covers an enormous range of ordinary conduct, from financial disputes and property disagreements to business conflicts and personal quarrels that turn into criminal complaints. What this means in practice is simple: any police officer, on their own unilateral assessment, can walk up to any citizen and take them into custody. No judge. No magistrate. No sworn affidavit. No independent review before the arrest. Just the officer’s word against the citizen’s liberty.
For a country emerging from 22 years of dictatorship, where arbitrary arrest was the preferred tool of oppression, building the new legal order on this foundation deserves a direct public conversation. We have not had it. And citizens have begun to pay for it.
What the Constitution Actually Says
Supporters of the current law may point to Section 19(3) of the 1997 Constitution, as amended, to suggest the Constitution itself authorizes warrantless arrest on suspicion. A cursory reading might appear to support that proposition. It does not, and the distinction matters enormously.
Section 19(3) states, in full:
“Any person who is arrested or detained—(a) for the purpose of bringing him or her before a court in execution of the order of a court; or (b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the law of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours.”
Read that carefully. The Constitution does not grant police the power to arrest on suspicion. It says: if someone is arrested on that basis by any legal authority, they must appear in court within 72 hours. It is a protection running in favor of the arrested person, not a license running in favor of the police. The source of the arrest power is not the Constitution. It is the Criminal Procedure Act, a statute passed by the National Assembly, which the Assembly can revise without touching the Constitution.
This reading is reinforced by Section 19(1), which states:
“Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.”
The phrase “in accordance with such procedures as are established by law” does not mean that any procedure the National Assembly chooses to write will automatically satisfy the Constitution. The procedures must actually prevent what Section 19(1) prohibited: arbitrary arrest. A statutory procedure so permissive that it enables systematic abuse does not satisfy that constitutional guarantee. It contradicts it.
Section 19(4) adds a further structural wall:
“Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his or her having committed or being about to commit an offense, he or she shall not thereafter be further held in custody in connection with those proceedings or that offense save upon the order of a court.”
Once a person appears before a court, any continued custody requires a court order. The police cannot release someone on informal reporting conditions and maintain effective control over their liberty without judicial involvement. Section 19(4) forecloses that option entirely.
How the Abuse Works in Practice
The pattern playing out across the country is one that few want to say out loud. A person is arrested, sometimes on a complaint filed by a business rival, a disgruntled neighbor, or a former partner with a grievance. The officer is satisfied there is “reasonable suspicion.” No warrant is sought. No magistrate reviews the grounds. The person is taken to the station.
Within 72 hours, the police do one of two things: they file a charge, or they release the person on “police bail,” meaning they let the person go but require them to report back to the station periodically while the police “continue their investigation.” No charge is filed. No court is involved. No time limit is set. The investigation continues indefinitely, sometimes for months.
Meanwhile, the person’s employer hears about the police matter. A professional license is questioned. A business contract falls through. The person’s reputation in the community is quietly destroyed, not by a conviction, not even by a formal charge, but by the cloud of an unresolved police investigation that the officer controls entirely and that no court has ever reviewed. This is not justice. It is the architecture of the Jammeh years dressed in new legal clothing.
The Constitution Does Not Permit Indefinite Police Bail Without Charge
The practice of holding someone on open-ended police bail without ever filing a charge is not a gap in the law. It is a violation of it. Under the Constitution, the 72-hour rule is not a procedural technicality. It is a fundamental safeguard against arbitrary detention. Section 19(3) requires that any person arrested without a warrant on suspicion of committing an offense must either be released or brought before a court within 72 hours. The word “shall” admits no discretion, and the Constitution recognizes no third option.
The meaning of “release” is equally defined by the Constitution. Section 19(5) permits conditions only where reasonably necessary to ensure appearance at a later date for trial or proceedings preliminary to trial. This presupposes a contemplated charge, a pending proceeding, or a defined path toward trial. Where none of these exist, conditional release is constitutionally groundless.
Regional jurisprudence reinforces this interpretation. In Law Office of Ghazi Suleiman v. Sudan, the African Commission on Human and Peoples’ Rights ruled that detention without charge constitutes a prima facie violation of Article 6 of the African Charter, affirming that no one may be deprived of liberty except for reasons and conditions previously laid down by law. The Commission further held that procedural safeguards are interlinked, and that denying a detainee access to counsel or family contact compounds the illegality and undermines the right to a fair trial. Judicial oversight is not optional; it is the mechanism through which the state justifies any restraint on liberty.
Comparative common law authority points in the same direction. In Hookway v Chief Constable of Greater Manchester Police, the English High Court held that using bail to pause the statutory detention clock was unlawful, confirming that extending police control over a suspect without a formal charge had no legal foundation. Parliament subsequently enacted the Police (Detention and Bail) Act 2011 as emergency legislation to overrule that judgment and clarify that time spent on bail does not count toward statutory detention limits. That legislative reversal was possible because the United Kingdom operates under the doctrine of parliamentary sovereignty, under which Parliament is the supreme legal authority and no court can strike down an Act of Parliament as unconstitutional.
The Gambia occupies a fundamentally different constitutional position. Like the United States, The Gambia has a written, supreme Constitution and an entrenched system of judicial review. Under that framework, it is the courts, not the National Assembly, that have the final word on what the Constitution means. The National Assembly cannot legislate away a constitutional right, nor can it overrule a court’s interpretation of a fundamental provision. Where a Gambian court were to find that indefinite police bail without charge violates Section 19, no Act of the National Assembly could cure that violation. The remedy would lie in compliance, not legislation.
Similarly, in County of Riverside v McLaughlin, the United States Supreme Court held that a person arrested without a warrant must receive a prompt judicial determination of probable cause, generally within 48 hours. Together, these authorities reflect a shared constitutional norm: any continued restraint on liberty must be grounded in a formal legal process and supervised by a court.
Against this backdrop, the practice of police bail without charge, coupled with open-ended reporting requirements, falls entirely outside constitutionally permissible limits. It is neither a true release nor a lawful continuation of detention. It instead creates a third category that the Constitution plainly does not recognize, one that allows the police to maintain effective control over a person’s liberty while indefinitely avoiding the obligation to bring that person before a court. This is precisely the outcome Section 19 was designed to prevent. Once a person is arrested without a warrant, the Constitution demands a clear and binary choice: bring the person before a court within 72 hours, or release them without imposing conditions unrelated to a pending or contemplated trial.
Why the British Common Law Model Is Not Good Enough
The Gambia inherited its warrantless arrest model from British colonial law, and the CPA 2025 preserved it without asking whether it fits a post-Jammeh republic. But even in Britain, the raw common law power has been substantially reformed. The Police and Criminal Evidence Act 1984 introduced mandatory custody time limits, independent custody officer review, and strict rules on detention without charge. The model the Gambia inherited, and that the CPA 2025 restates without reform, is not the model even its country of origin still uses.
More fundamentally, the United States, whose Fourth Amendment was written precisely as a reaction to colonial-era arbitrary arrest, established a different constitutional principle. The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The warrant is the rule. Probable cause, not mere suspicion but objectively demonstrable facts, is the standard. As the U.S. Supreme Court held in Mallory v. United States, 354 U.S. 449 (1957): “The police may not arrest upon mere suspicion but only on probable cause.”
The American model also draws a crucial line between suspicion and full custodial arrest. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court permitted only a brief investigatory stop on reasonable suspicion, and tightly defined its limits: the officer’s action must be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” A brief stop to investigate. Not a full arrest. Not detention. Not months of reporting conditions. The distinction between suspicion and probable cause is the line between the state briefly inconveniencing a citizen and the state depriving a citizen of their liberty entirely. It is a line the CPA does not draw. This does not mean the Gambia must copy the United States. It means there are tested, proven alternatives to the model we inherited, and we should choose deliberately, not by default.
What Must Change
Two immediate reforms are available without a constitutional amendment and should be pursued now.
First, the National Assembly should amend the CPA to give every person on police bail without charge an express statutory right to apply to the Magistrate’s Court to discharge the bail conditions if no charge is filed within 30 days. The CPA’s Section 342 already empowers the High Court to issue directions in the nature of habeas corpus, but that remedy is expensive, slow, and beyond the reach of most Gambians. A simple, accessible Magistrate-level application—stating that the person has been on police bail for 30 days without charge and seeking discharge—would break the indefinite reporting cycle without requiring any constitutional amendment whatsoever.
Second, every police bail condition should be required by statute to be recorded in writing with a stated review date and filed with the nearest Magistrate’s Court within 24 hours of imposition, with automatic judicial review at 30 days. Invisible conditions cannot be challenged. Conditions filed with a court become accountable to a court.
In the long term, the next constitutional revision must do three things.
It must elevate the arrest standard from reasonable suspicion to probable cause. Reasonable suspicion, as the current operational standard, is whatever an officer says it is. Probable cause—meaning facts and circumstances sufficient to warrant a reasonable person’s belief that an offense has been committed—is an objective threshold that a magistrate can assess and reject. The Constitution should say so expressly.
It must establish a warrant as the default for all arrests, with narrowly defined exceptions for genuine exigencies: an offense committed in the officer’s direct presence, hot pursuit of a fleeing suspect, imminent destruction of evidence, or immediate danger to public safety. Everything outside those exceptions requires a magistrate’s prior written authorization. This inserts an independent judicial mind—accountable, on the record, and reversible—between police desire and citizen liberty. That is precisely what 22 years of dictatorship taught us is not optional.
And it must provide an exclusionary remedy: evidence obtained through an arrest made without a warrant and without a qualifying exception is inadmissible in any criminal proceeding. Without a consequence, a constitutional standard is aspirational. With one, police have a direct institutional reason to comply. No exclusionary rule means the warrant requirement is a polite suggestion.
Ten years after Solo’s death, the Gambia has the opportunity, and the obligation, to build a legal order that reflects what that anniversary actually means. The CPA 2025 has not yet done that. It can still be fixed.
