The Law Already Provides a Way Forward: Moving the Chief Justice Case Without the Chief Justice

ANALYSIS

Sarjo Barrow, Esq.

On July 31, 2026, the Gambia Bar Association filed a suit in the Supreme Court asking whether Chief Justice Edi M.O. Faal meets the constitutional qualifications for his office. According to the Bar’s public statement of November 9, the case has yet to be assigned or listed. The Registrar told the Bar’s lawyers that the file went to the Chief Justice and that directions would follow “if and when received.”

I have publicly supported the Chief Justice’s nomination, and I write with respect for his office. But my fidelity is first to the Constitution. That support should not be mistaken for prejudgment of the very constitutional question now before the Court. I take no position on the merits, which the Court must determine, and I question no one’s good faith. My concern is narrower: the law already provides a way for this matter to proceed without compromising anyone’s role or the office’s dignity. Delay risks constitutional uncertainty that no one should want.

The common ground

The Chief Justice heads the Judiciary under section 121 of the Constitution, and the office deserves the utmost respect. The familiar principle that no one should judge his own cause points toward recusal. I have no reason to think the Chief Justice would regard that principle differently. The Attorney General has applied for his recusal, and the Bar does not oppose it. The question, then, is how the Court can continue its work once he steps aside.

My concern, raised in September, was that successful recusal applications could leave too few Justices for a five-member final bench. That concern remains. But the constitution of the final bench and the preliminary management of the case are separate questions, and the latter can proceed meanwhile.

The law provides for this

Section 3(3) of the Supreme Court Act states: “A single Justice of the Supreme Court may exercise the powers of the Court in any interlocutory matter, which may be subject to a fresh application to a bench of five Justices.” A single Justice can therefore deal with appropriate interlocutory matters, including timelines and pending applications, and help prepare the case for a full bench.

Section 3(4) provides: “The Chief Justice shall preside at sittings of the Supreme Court and in his or her absence, the most senior of the Justices of the Court as constituted shall preside.” Where the Chief Justice is absent, seniority provides the answer. How it applies on recusal is, of course, for the Court.

Rule 7 of the Supreme Court Rules adds: “Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.” Filling procedural gaps is the Court’s task.

Rule 47 states: “The Registrar shall, as soon as practicable after the filing of the statement of the plaintiff’s case, serve copies of the statement on the defendant and on the Attorney-General.” Once triggered, that duty is mandatory. Arranging the hearing, by contrast, is for the Court under rule 53, and no rule lets the Registrar assign a Justice.

A practical and respectful way forward

First, the Chief Justice could confirm his recusal in writing, giving effect to what both parties seek. Second, a written administrative direction, consistent with section 3(4), could refer case management to the most senior Justice who is not the subject of a recusal application.

The harder question is the final bench if fewer than five Justices remain. Section 125(1)(c) of the Constitution empowers the Chief Justice to bring in “such judge of the Court of Appeal as the Chief Justice may, by writing under his or her hand, select to sit in the Supreme Court for the determination of a particular cause or matter.” That power is his alone. Selecting by seniority would make any choice transparent and keep personal discretion to a minimum.

In United States v. Will (1980), not binding here but instructive, the United States Supreme Court applied the principle that an interested judge may act only where the case “cannot be heard otherwise.” Any such involvement should be limited to what necessity requires.

For the future, the Rules Committee under section 9, on which the Bar holds two seats, could consider adopting a standing rule for cases in which the Chief Justice must step aside. That would give the Judiciary and litigants alike clarity.

The wider institutional interest

Public confidence in whatever the Court decides will depend on whether the process is seen as fair and independent—the Chief Justice shares that interest. If an independent panel upholds his appointment, its ruling will carry far more weight than one whose composition invites questions. The Court’s term ends in December.

The Registrar’s letter speaks of “if and when.” The Rules speak of “shall” and “as soon as practicable.” The distinction matters. A clear arrangement allowing the most senior eligible Justice to take the matter forward would neither prejudge the case nor diminish the office. It would show that the Judiciary’s ability to administer justice does not depend on any one person.

That would be a welcome act of leadership.

The views and opinions expressed in this article are those of the author alone and do not represent the views of his employer or any government.