By Sarjo Barrow, Esq.
As reported by Kexx News, the High Court has dismissed Ebrima Dibba’s appeal, clearing the way for his prosecution on a charge of sedition. The charge arises from a WhatsApp audio in which he allegedly described the President as “greedy, immature, rude, and foolish.”
On the narrow issue before it, the court may well have reached a defensible conclusion. The consent to prosecute, signed by the Solicitor-General, may ultimately be valid. But the reasoning by which the court arrived there is, with respect, open to question—and in law, the road sometimes matters as much as the destination.
Section 53(2) of the Criminal Code requires the written consent of the Attorney-General before a prosecution for sedition may proceed. That requirement is not a mere technicality. It is a deliberate safeguard. The legislature placed it there because sedition prosecutions press directly against political speech. That concern is sharpened by Gambia Press Union v Attorney General (2018), after which sedition survives only in the narrow sense of protecting the person of the President. Mr. Dibba’s alleged remarks were directed at the President personally, placing this case squarely within that sensitive legal space.
Because the prosecution depends on valid consent, the central question was not simply whether the case could go forward, but how the law allows that consent to be given.
The defense argued that the consent was defective because it was signed by the Solicitor-General rather than the Attorney-General named in the statute. The court rejected that argument, reasoning that because the Solicitor-General works under the Attorney-General, his signature sufficed—a form of standing authority requiring no separate justification.
With respect, that approach risks placing the answer on a broader footing than the law itself provides.
The court relied in part on Nigerian authorities, Okonkwo v State (1991) and A.G. Federation v A.G. Abia State & Ors (2001). Yet those cases do not clearly support the precise proposition for which they were cited. While this author could not confirm whether one of the cases exists, the other, widely known for addressing issues of federalism and resource control, is not typically treated as an authority on the delegation of prosecutorial consent.
Indeed, this is not to deny that the underlying idea exists. In fact, in Nigeria, the Attorney-General’s functions may indeed be exercised through subordinates. But that conclusion rests on express constitutional provision as confirmed in State v Ilori, where the Supreme Court accepted that the Attorney-General’s powers may, in some cases, be exercised through officers of the department.
That is where the Gambian position differs.
The Gambian Constitution does not grant a general power for subordinates to exercise the Attorney-General’s statutory functions merely by virtue of hierarchy. Instead, it separates responsibilities: prosecutorial authority is vested in the Director of Public Prosecutions, acting subject to the Attorney-General’s direction and, in certain instances, requiring the Attorney-General’s approval. This structure suggests specific, legally grounded acts of authorization, not a broad standing authority.
The proper basis, therefore, lies in the statute itself. The law provides that the Solicitor-General may perform the duties and exercise the powers of the Attorney-General in the Attorney-General’s absence. That condition is not incidental; it is the source of the power.
Once that is appreciated, the inquiry becomes clearer. Was the Attorney-General absent when the Solicitor-General signed the consent on June 3, 2024? If so, the statute supplies the authority, the consent is valid, and the prosecution may proceed on firm legal ground. That route leads to the same conclusion the court reached, but along the path the law actually marks out.
The point, then, is not to contest the outcome. It is to refine the reasoning. A conditional reading of the statute does not weaken the prosecution; it likely secures it. It anchors the decision in the legal condition that validates the consent.
Why does this distinction matter? Because courts do more than decide individual cases, they articulate standards for the future. To justify this consent on a theory of standing authority risks stating a rule broader than the statute permits. It effectively turns a specific safeguard into a general permission given in advance—a move that may leave the reasoning vulnerable if tested on appeal.
By contrast, grounding the decision in the statutory condition of the Attorney-General’s absence would place the same result on firmer legal footing.
None of this suggests that the Solicitor-General acted without authority, or that consent must always be a strictly personal act of the Attorney-General. It is only to insist that where the law makes consent conditional, its validity should rest on the condition the law actually names—not on hierarchy alone.
The court may well be correct in its conclusion. A higher court, or this one on fuller reasoning, could easily sustain that result by placing it on the proper statutory ground. That is the modest refinement this case invites: not a reversal of the outcome, but a clearer and more secure basis for it.
By Sarjo Barrow, Esq.
