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OPINION
By Sarjo Barrow, Esq.
As the national conversation begins over who should lead The Gambia’s judiciary, I want to state my position clearly. Like Mr. Faal, I am an American-trained lawyer and jurist, and I support his nomination—not out of personal affinity or sentiment, but because a practitioner educated in the United States and admitted to practice in other jurisdictions brings the perspective of multiple legal traditions to a judiciary that continues to reform and strengthen.
That support, however, is not unconditional. The office of Chief Justice is a constitutional one, and public confidence in the judiciary depends on unwavering fidelity to the Constitution, the rule of law, and the integrity of the judicial process. No nominee should receive support where there is credible evidence calling into question the integrity, independence, or propriety the office demands.
This article is therefore not an endorsement based on personality or reputation. It examines the constitutional qualifications for the office of Chief Justice and explains why, under our framework, a nominee vetted and approved through the prescribed constitutional process is entitled to a presumption of regularity—one that holds unless credible evidence shows the threshold unmet. My hope is to contribute constructively to a discussion that concerns all Gambians—the legal profession, civil society, policymakers, and the public alike—by focusing it where it belongs: on the Constitution and the law, not speculation or politics.
An objection is already circulating: that Faal is “an American lawyer,” with a career built in Los Angeles rather than Banjul, and is therefore too foreign for our highest bench. Said candidly: this is not a legal argument. It is a reflex. And the Constitution does not run on reflexes.
A Record on the Public Page
His Gambian citizenship is not in dispute. He read for the Bar at the Middle Temple, holds a Master of Laws from the University of London and a Juris Doctor from California, and has spent decades in courtroom practice in the United States. In 1993, the Los Angeles Times named him a “rising legal star” for his work in one of the most closely watched criminal trials in modern American history. Whatever one’s view of that case, it settled one point: Faal is a formidable trial advocate. Capability is not the issue. The issue is a definition.
What the Constitution Actually Asks
Section 139 of the Constitution does not ask whether a nominee is enrolled on the Gambian Roll. It never has. For much of our history, judges who never practiced at the Gambian Bar sat on our courts, some as Chief Justice. A person qualifies for the Supreme Court by five years’ service as a judge of a comparable court in a common law country, or by twelve years’ practice before a court of unlimited civil and criminal jurisdiction in one. To be Chief Justice, one must meet that standard or have served ten years as a judge of a superior court. Practice, judicial service, and years are the currency of eligibility. Not geography, and not a Banjul call.
What “Practiced” Means—and What It Doesn’t
An honest distinction must be drawn, and our Constitution’s own words draw it. Nigeria’s section 231(3) requires only that a nominee be “qualified to practice as a legal practitioner in Nigeria” and have been so qualified for fifteen years—a status satisfied by standing alone, from the date of call. The Gambia’s section 139(2) demands more: the nominee must have “practiced as a legal practitioner before a court having unlimited jurisdiction in civil and criminal matters.” Where Nigeria chose a status word, our framers chose a doing word. Mere admission is not enough; the twelve years must be years of actual professional life.
But practice does not mean only trial work. In the common law tradition, it has always embraced chamber work—opinions, drafting, advisory, and transactional matters—and “before a court having unlimited jurisdiction” is best read as fixing the practitioner’s professional tier, not as requiring a logbook of appearances. A courtroom-only reading would produce an absurdity: a leading commercial silk who rarely enters a courtroom would be unqualified, while a junior doing daily bail applications would sail through. In my opinion, a sound middle ground is: admission before a court of unlimited civil and criminal jurisdiction, plus twelve years of active practice—contentious or not—as such a lawyer. A dormant license fails; a busy practice, in court or in chambers, counts.
Having said that, as the law stands today, Mr. Faal’s decades before the American courts—however formidable—cannot count toward the twelve years at all. The reason is developed below: section 139(5) has not yet prescribed the United States, so practice earned there is, for now, practice in a jurisdiction the definition does not reach. That narrows the inquiry rather than ending it. The qualifying years must be found in the two common law countries whose practice counts—the United Kingdom, where he was called at the Middle Temple, and The Gambia, where, by his resume, he was called as well. Whether the practice that followed each call, in court or in chambers, lasted for twelve years is the factual question, and it deserves a documented answer, not an assumption.
A further objection must be retired. To say American practice does not yet count is one thing; to treat it as a mark against the man is another. Years before the courts of the United States are distinction, not distance, and a Gambian who has sustained practice at that level for decades has earned esteem, not suspicion. The irony is this: those years are set aside only because section 139(5) has not prescribed the United States as a “common law country.” The defect is in the definition, not in the advocate.
America Is a Common Law Country—Period
That brings us to the myth beneath the whole affair: that American law is alien to our tradition. The colonists, Justice Story wrote for a unanimous Supreme Court in 1829, brought the common law with them and “claimed it as their birthright.” Its Constitution, the Court held in Smith v. Alabama (1888), contains provisions “framed in the language of the English common law” and to be read in light of its history. Where the written charter is silent, Erie Railroad Co. v. Tompkins (1938) confirms, the governing law is the unwritten, precedent-driven common law of the several states. Nor is this a museum piece: in Crawford v. Washington (2004), Justice Scalia read the Confrontation Clause as the common law right of confrontation, “admitting only those exceptions established at the time of the founding.” In District of Columbia v. Heller (2008), the Court held that the Second Amendment “codified a pre-existing right,” traced through Blackstone. From Story to Scalia, the method has never changed: American courts read their Constitution against its common law background. Two constitutional republics, both descended from English common law, both governed by a supreme written constitution: The Gambia and the United States. We are not distant cousins. We are the same family.
Our Own Court Already Agrees
Jammeh v. Attorney General turned, in part, on a question that a constitutional system like The Gambia’s can ask—but the United Kingdom’s cannot: may an ordinary citizen challenge an Act of the National Assembly as unconstitutional?
The Supreme Court explicitly drew that distinction. Writing for the Court, Jallow JSC (as he then was) explained that in the United Kingdom, Parliament is sovereign, and the courts “may not hold an Act of Parliament to be invalid or unconstitutional.” The Gambia follows a different constitutional model. Under section 4 of the Constitution, the Constitution is the supreme law, and any law inconsistent with it is void.
The Court contrasted The Gambia with Britain because the issue before it was parliamentary sovereignty. But the more significant constitutional parallel lies elsewhere. By invalidating legislation that conflicted with the Constitution, the Court exercised a power that no British court possesses: the power of judicial review first articulated by the U.S. Supreme Court in Marbury v. Madison (1803): “a law repugnant to the Constitution is void.” Judicial review is America’s enduring contribution to the common-law constitutional tradition. On that fundamental principle, The Gambia stands with Washington, not Westminster.
The Court’s approach to standing reinforces the point. In determining who may invoke judicial review, Wali JSC relied directly on U.S. Supreme Court precedent, including Flast v. Cohen, Barrows v. Jackson, and Dombrowski v. Pfister, adopting a broad conception of standing that allows citizens to defend the constitutional order. A Supreme Court that looks to American constitutional doctrine to determine who may vindicate the Gambian Constitution can hardly regard American legal training as irrelevant or foreign.
Rwanda Is In, America Is Out—Don’t Be Fooled
The same defective definition explains why the General Legal Council, in the Legal Practitioners (Recognized Jurisdictions) Rules, 2024, left the United States off the list of jurisdictions whose lawyers may be admitted here, while including Rwanda. Rwanda’s system was largely civil law, inherited from Belgian colonial administration, until it began grafting on common law elements after joining the Commonwealth in 2009. Yet the same Schedule lists the Republic of Ireland, which left the Commonwealth in 1949 and earns its place on common law substance alone. A list generous enough for a recent civil law convert, and for a Commonwealth non-member, cannot coherently exclude the archetypal common law republic. Section 139(5)(b) already allows prescription of any country “the courts of which exercise a common law jurisdiction”—which the United States satisfies as plainly as any nation on earth. Were the test legal substance rather than political membership, America would head the list.
The Question Was Never Whether He Is Qualified
So let us keep the two questions apart. Whether Edi Faal meets the twelve-year practice requirement is a factual question, to be answered by his record—and the Constitution supplies both the forum and the referee. Under section 138(1), the President appoints a Chief Justice only after consultation with the Judicial Service Commission, a body that, under section 145, is chaired by the Chief Justice and includes a superior-court judge, the Solicitor General, and a Bar-nominated practitioner. The bench, the Attorney General’s chambers, and the Bar are, by design, in the room. The real question, then, is not what any pundit makes of the nominee’s resume; it is what the Commission, with the documented record before it, advises. And if the Commission is satisfied, the appointment made, and a citizen still believes the threshold unmet, the Constitution supplies the proper forum for that too: the Supreme Court, whose original jurisdiction over the interpretation and enforcement of the Constitution exists for precisely such questions. Eligibility is tested by consultation and, if need be, by adjudication—not by acclamation. Whether The Gambia will finally correct a definition that pretends America is not a common law country is a separate matter, one that the National Assembly can fix by ordinary Act, and the Council with one line in a Schedule. What cannot stand is the lazy middle position that treats American practice as a disqualification in itself. The Constitution measures a judge by practice and years, not by the ocean he happened to practice across.
