Examining judicial discretion: Has section 99(1) of the Criminal Procedure Code curtailed the courts traditional authority to grant bail?

1. Introduction

Here, I delved into the legal framework bordering on the traditional discretion of the Court to grant or refuse bail in The Gambia, focusing on the interpretation of section 99(1) of the Criminal Procedure Code and section 19 (1) of the 1997 Constitution. I endeavoured to do a comprehensive analysis of both provisions above and examined judicial decisions that shared sentiments on the tension that seems to exist between judicial discretion and legislative intent within both sections. I also argue that even though the CPC imposes limitations on judicial discretion, that cannot be equated to taking away such discretion. It limits it within the bounds of the Constitution to ensure judicial accountability and proper use of discretionary powers. I further argued that there is a need to strike a balance between protecting human rights within our new democracy and maintaining public security and order. I finally shared a view that even though the limitation on judicial discretion is justifiable – a review of the legal regime for greater human rights protection seems to be necessary.

2. Law-making powers of the National Assembly

At issue is whether the National Assembly, an organ of the State Constitutionally mandated to make laws has exceeded its legislative powers, in s.99(1) of the Criminal Procedure Code Cap 11:01 Volume 3 Laws of The Gambia by taking away the right to exercise of judicial discretion in terms of granting or not bail by the Courts in circumstances where one is charged with an offence that attracts death or life imprisonment.

To start with, the law-making powers of the National Assembly flow from S. 100 of the 1997 Constitution of the Gambia and are exercised through the introduction of Bills or motions that are assented to by the President of the Republic to become law – no need to reproduce the whole section here. Hence, the wording of every enactment emanating from such process expressed; “Enacted by the President and the National Assembly”. This law-making power as the separation of power principal dictates was also stressed in UDP & Ors v AG & Ors SC 4/2007

by the Supreme Court of the Gambia in such terms;

“Courts of law qua judex do not have the competence to fill in lacuna in the law, that is the exclusive Constitutional function of the legislature. As the Constitution clearly provides for separation of powers, this court or any court for that matter cannot fill a lacuna in any law”

This expression by the Supreme Court shows that the National Assembly is the organ of the state in which law-making powers are conferred. The Criminal Procedure Code Cap 11:01 that came into force on 1st October 1934 and at issue here, came to life out of the exercise of the same legislative powers under Section 100 – hence, given the force of law by Section 7(a) of the 1997 Constitution as an Act of National Assembly and therefore form part of laws of The Gambia even though it came into force during the colonial era. The Act is to be taken, in law, to have been enacted in terms of the Constitutional powers of the National Assembly – under the 1997 Constitution. The focus point is Section 99(1) of the Criminal Procedure Code, a law enacted to, among others; regulate pre-trial bail by courts in the criminal justice system. It will be ideal to reproduce the whole provision here as originally was before an amendment and after the amendment in 2002 (by Act No.2 of 2002);

3. Brief background on Section 99 (1)

As argued above, the Constitution of The Gambia conferred law-making powers in the National Assembly in Section 100 and it is through the exercise of such powers together with Section 19 (1) of the same Constitution, the Criminal Procedure Code was enacted and Section 99 respectively under the same code. Saying so, because section 19(1) contemplated the life of the CPC and Section 99(1) contained therein when its stated;

“(1) 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 expression in Section 19(1) – “such grounds and in accordance with such procedures as are established by law” in case of depriving such rights to liberty is pregnant with and subsequently gave birth to law – that “law” in the provision, is the Criminal Procedure Code and specifically Section 99(1) and, “except on such grounds”, means, grounds based on what the section contemplates to be prescribed as grounds and procedure under which personal liberty can be deprived and same will be in accordance with the Constitution if not arbitrary done. The seriousness of the offence, the likelihood of the accused person jumping bail and other grounds as could be the reason for refusal of bail can all fit in the phrase “except on such grounds” and, the grounds must be “in accordance with such procedure as are established by law”. Having analyzed a bit the provisions, it will be ideal, for purposes of answering whether or not the National Assembly, in the exercise of their legislative powers in Section 100 exceeded the same in Section 99(1), to reproduce Section 99 before and after its amendment in 2002 by (Act No.2 of 2002;

Section 99 as it then was before the amendment by (Act No.2 of 2002);

(1) When any person, other than a person accused of an offence punishable with death, appears or is brought before any court on any process or after being arrested without a warrant, and is prepared at any time or at any stage of the proceedings to give bail, such person may in the discretion of the Court be released upon his entering in the manner hereinafter provided into a recognizance, with or without a surety or sureties, conditioned for his appearance before such court at the time and place mentioned in the recognizance.

Section 99 – after amendment by (Act No.2 2002);

(1) Where a person, other than a person accused of an offence punishable with death or imprisonment for life, appears or is brought before a court on any process or after being arrested without a warrant, and is prepared at any time or at any stage of the proceedings to give bail, the person may in the discretion of the court be released upon his or her entering in the manner hereinafter provided into a recognizance, with or without a surety or sureties, conditioned for his or her appearance before the court at the time mentioned in the recognizance

Section 99(1) has, before and even after the amendment classified offences into two categories for purposes of granting or not bail by the courts – those that are bailable and non-bailable or capital offences punishable with death (before the amendment) and after such amendment, which inserted “imprisonment for life” as part of those non-bailable – and those offences which are not punishable with either death before amendment and both death and “imprisonment for life” after the amendment. Before the 2002 amendment, the “imprisonment for life” as punishment of any offence(s) where bail should not be granted was not there – it’s only limited to “those offences punishable with death” that are non-bailable. But then,  even before the amendment in 2002 by (Act No.2 of 2002), it seems courts generally have no power or are incompetent to grant bail to those offences that are punishable with death (before “imprisonment for life” was inserted), but, it will be ideal to seek as a start, wisdom from the Court of Appeal in Jobe (No. 1) V Attorney General (No.1) (1960-1993) GLR , when in the same case, it was held at the trial court that, Parliament has denied bail “absolutely” in the case of a person accused of an offence punishable with death in Section 99(1), Anin JA as then was, observed and strongly went against that ruling;

“That statement, with respect, is only true of section 99 (1); but it is incorrect when section 99 (1) is read, as it must, in conjunction with section 99 (3). The true legal position, in my respectful view, reading the two subsections together is that a court subordinate to the Supreme Court (High Court) is incompetent to grant bail to a person accused of an offence punishable with death. However, it is open to such a person to apply instead to the Supreme Court to admit him to bail, no matter the offence with which he is charged, whether it carries the death penalty or not. And the Supreme Court exercises its discretion to either admit him to bail or order a reduction in the bail being independent or indemnified by the accused person”

The observation by the learned Justice has to do with the provision as it was before amendment and where Section 99(3), to my mind, was purposively interpreted as accommodating the exercise of “judicial discretion” as a long and trite law, even whereas Section 99(1) seems to take away that discretion, but having regards to subsection (3), the Supreme Court (High Court then) can grant or refuse bail even in offences that attract death as punishment before the “imprisonment for life”  was inserted. The learned Justice seems to suggest that, the provision only renders the Court subordinate to the Supreme incompetent to grant bail under such circumstances, but the Supreme Court can, having regards to subsection (3). Whether or not subsection (3) overrides subsection (1) of Section 99 depends on the wording and to that, the word “NOTWITHSTANDING” when used in a statute as used in Section 99(3) of the Criminal Procedure Code before the amendment, means to “exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil”. Also echoed by the Supreme Court of India in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram 1987 AIR 117, 1986 SCR (3) 866 to mean.

“notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act”

Reading the observation of learned Justice Anin and how Section 99(3) was interpreted regarding powers of the court to grant or refuse bail, together with the decision of India’s Supreme Court with the word “notwithstanding”  and that of Nigeria, the only logical conclusion one can draw from the combined reading is that an overriding effect seems to be conferred in Section 99(3) over Section 99(1) before the amendment by the word “notwithstanding” and that seems to reiterate the long-held and rooted trite law and practice that, the granting or refusal of bail is at the unfettered discretion of the Court and same must be exercised judicially and judiciously, and in so doing, certain requirements by law must guide the same courts. Despite the limitations on the exercise of discretion to grant or refuse bail in Section 99(1) when offences that attract death are at issue, subsection (3) of the same section before its amendment, seems to confer on Courts absolute discretion to have regards to certain circumstances when dealing with a bail application and grant or refuse. Perhaps this is the intention of the National Assembly before the amendment.

To support the argument above, Nigeria’s CPC offers a useful guide because Section 341(1) and (3) of their Criminal Procedure Code of Northern part, are quite similar to that of Section 99 (1) and (3) of the Gambia’s Criminal Procedure Code before its amendment in 2002 by (Act No.2 of 2002). So same conclusion could be made – that is, their subsection (3) confers absolute discretion on the Courts despite their subsection (1) restricting the same – also, it can be argued, that, the mandatory limb of both provisions should be given effect by courts in dealing with such applications as the National assembly intend.

Having given this background to Section 99 of the CPC before its amendment, intending to bring to light the possible meaning of the provisions before, to understand the original intent of the National Assembly and to also set the ground for proper understanding of the section as it is now after the amendment in 2002 by (Act No.2 of 2002) – I will now turn proper to the current position of the law and to give some answers to the issue at hand. But before that, it will be prudent to state, that, as consistently done above, before the amendment, there was still a limitation in Section 99(1)which, in statutory terms is considered a mandatory limb of the provision and where there is a mandatory provision, Courts are enjoined to give effect to such provision or part, and courts are enjoined to give effect to such mandatory provision when interpreting.

4. Did the National Assembly exceed its legislative powers in Section 99(1) of the Criminal by taking away judicial discretion in granting bail?

As argued above, law-making powers are conferred in the National Assembly in Section 100 of the 1997 Constitutionand through the exercise of the same legislative powers; the Criminal Procedure Code and Section 99 contained therein came to life to regulate the powers of the Court in bail application when persons are charged with offences. Whether the National Assembly exceeded its legislative powers in Section 99(1) requires some analysis and proper construction of the purpose, context and exercise of such powers in Section 99(1) in conjunction with Section 19(1) of the 1997 Constitution. The law-making powers in Section 100 under the Constitution and Acts emanating from such are of judicial notice and need not be reproduced here as stated earlier on. But the Sections on issues need to be.

Section 19 (1) 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.”

And section 99(1) state;

“Where a person, other than a person accused of an offence punishable with death or imprisonment for life, appears or is brought before a court on any process or after being arrested without a warrant, and is prepared at any time or at any stage of the proceedings to give bail, the person may in the discretion of the court be released upon his or her entering in the manner hereinafter provided into a recognizance, with or without a surety or sureties, conditioned for his or her appearance before the court at the time mentioned in the recognizance”

The tussle here is between the powers of the National Assembly conferred by the Constitution (Section 100) and exercised in Section 99(1) of the CPC and the discretion of the Courts in the same section to grant or refuse, bail, on certain offences that attract death or imprisonment for life as punishment. To determine the dispute I created between the two, certain questions need to be asked, where did the National Assembly derive the power to enact the CPC and provide for Section 99(1)? Is there any other law restricting the National Assembly from prescribing such procedure in Section 99(1) to such extent as it is? has the  National Assembly even if there is no such law restricting them, exceeded its powers in legislating against the spirit and intent of the powers conferred on them concerning prescribing procedures and grounds to deprive personal liberty guaranteed in Section 19 of the 1997 Constitution?

To answer the questions raised above, here is the entrance point – the power, as already argued, is conferred on the National Assembly by Section 100, and any law legislated by the exercise of such power is recognized as a law applicable in the Gambia by S.7 (a) of the Constitution. So certainly, the National Assembly has the power to enact the Criminal Procedure Code, specifically Section 99(1), this power does not only flow from the general law-making powers in Section 100 but even under Section 19(1) when its states, “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 law here, that should establish procedures and or grounds for the deprivation of personal liberty and it will be considered lawful and not arbitrary, is a law to be made through the same process as all other laws recognized as a law, and, that law can only be made by the National Assembly as the law-making body, thus, they have legislated such law and it’s the Criminal Procedure Code – setting the procedure and grounds under which same right can be deprived, thereby executing a constitutional command, as the Constitution itself contemplates for such situation to arise where such right can be deprived, to provide for such “procedure under a law” and “grounds” on which they can be, and will be consistent with the Constitution.

Therefore, Section 99(1) is legislated through the contemplation of Section 19(1). On whether or not there is a law restricting the National Assembly in legislating Section 99(1) to such extent – not to my knowledge as in other situations, like the case of Jammeh V AG (1997-2001)GR 839, Sabally v IGP civil ref no 2/2001, 5 December 2001etc., where there are express Constitutional limitations, in some sense preconditions for the law-making powers to be exercised or same power cannot be exercised to do certain things and thus, the Supreme Court declared the act of National Assembly ultra-vires – beyond their powers and unconstitutional,  but, in the case of Section 99(1) vis-à-vis Section 19(1), there seems to be Constitutional limitation in the same Section 19(1) as it expressed, “Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention” – this means that any law to be legislated to deprive liberty and security of a person shall not be a law to facilitate “arbitrary arrest or detention”, this seems to mean, the National Assembly is not to enact such law as to deprived persons to such extent (to arbitrarily detained or arrest them).

What then is “arbitrary arrest and detention”? which could serve as the only way to consider such procedure as established by law and ground as unlawful – seeking reference from Article 9(1) of the ICCPR, which has exact wordings with Section 19 (1) of the 1997 Constitution and the Gambia having ratified the same convention, will help to give under which circumstances detention can be lawful or arbitrary.

Article 9(1) of the ICCPR is reproduced below;

“Everyone has 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 liberty except on such grounds and in accordance with such procedures as are established by law.”

In W. Mukong v. Cameroon A/49/40 (vol. II), p. 181, Para. 9.8.  , the UN Human Rights Committee in dealing with the proper meaning and interpretation of Article 9(1) of the ICCPR which has almost exact wordings of Section 19(1) of the 1997 Constitution of The Gambia, expressed;

“‘Arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. … [T]his means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in the circumstances. Remand in custody must further be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime”

Put differently, but not to go outside what is set out above, remand in custody under lawful arrest must not only be “lawful” but also “reasonable” and “necessary” in all the circumstances for the aforementioned purposes. This means, that if a law prescribes personal liberty to be deprived under certain circumstances as in Section 99(1) of the Criminal Procedure Code which has the backing of Section 19(1) of the Constitution, it will be lawful unless done in a way inappropriate or in a manner that goes contrary to the spirit and intent of the said provisions and such should be construed to bear lawfulness or if done otherwise, the negative consequence will flow. For, a statute should be construed in such a manner when the wording used is simple and clear as to give effects to them as the law-maker intends. Such is expressed In Edward Graham v Lucy Mensah;

“On the principles underlying the ascertainment of the meaning of a statute, it is assumed as a matter of common sense that the legislature uses the right words to express its intention, is reasonable and consistent and legislates with a practical object in mind. In the exercise of their interpretative jurisdiction, Courts strive to adopt a meaning that the words of the statute can fairly bear and which yields a practicable result with due regard to the object of the statute. The ultimate aim is to arrive at a meaning which achieves harmony with the other provisions of the statute and is consistent with relevant provisions in other statutes. So, unambiguous provisions of a statute must be applied in such a manner as to satisfy these basic assumptions and ensure that justice is done at the end”

The same sentiments were expressed in Yakumba Jaiteh v Clerk of National Assembly and 3 Ors SC NO: 001/2019;

“In the interpretation or construction of the provisions of a statute, including the Constitution as in the instant case, the primary task of the Court is to ascertain and give effect to the plain and ordinary meaning of the language of the enactment unless to do so would result in an absurdity. Every enactment has a purpose; the Court must seek to ascertain and promote the object and purpose of the enactment. Words, phrases, indeed whole sections should not be read in isolation from others”

From the above decisions, it is important, to note that, Courts should give effects to the clear language in Section 19(1) as it contemplates Section 99(1) in providing grounds and circumstances in which personal liberty could be deprived and the same will be lawful, necessary and appropriate. But whether by providing the same, should it take away the discretion of Courts or has it in fact, taken it away? By clear and purposeful reading of both provisions – Section 19(1) and Section 99(1), there is just limitation on the exercise of discretion by Courts and nothing else and as such, such limitation, given the seriousness of offences that Courts are limited not to grant bail when a person is charged, it’s necessary and appropriate in a democratic state.

Thus, in my considered view, Section 99(1) as legislated by the National Assembly is reasonable, necessary and lawful as it is consistent and legislated to fulfil the desire of Section 19(1) and is not intended to arbitrarily detain those arrested and are yet to stand trial. Where a person is arrested by lawful order and remanded and a formal charge made – no issue of arbitrary arrest and detention will arise or can arise – and such, the deprivation of liberty by Section 99(1) is consistent with Section 19(1) of the Constitution.

For the reasons above, and in my humble view, if such a law, as prescribed by Section 19(1) to be made available is enacted to set out procedure and grounds on which personal liberty can be deprived and, such is reflected in Section 99(1) of the CPC in specific circumstances, then, the exercise of law-making powers by the National Assembly in legislating such provision to fulfil constitutional vision in Section 19(1) has not exceeded the powers conferred on them in Section 100.  Thus, Section 99(1) was legislated to fulfil and make the provision of Section 19(1) workable for a peaceful, orderly society that yearns for progress as the Constitution cannot address everything, it speaks through other laws to fulfil its purpose and vision. The wordings of Section 19(1) are clear and must be construed as so given the intention of the drafters and the right in question not being absolute as well, and as such, is subject to limitations and such is envisaged in Section 19(1) which properly detailed out under what circumstances it can be deprived in Section 99(1) of the Criminal Procedure Code and such can be only done through the exercise of legislative powers. For that, I strongly believe that the National  Assembly has not exceeded its legislative powers in Section 99(1) and has not taken away the discretion of Judges in granting or refusing bail applications.  The National Assembly just limits the exercise of such discretion and such can be exercised in offences that do not attract death or life imprisonment. This gave meaning to Section 19(1)  as it contemplates that personal liberty can be deprived in circumstances, when the offences that attract such punishment are at issue, based on the seriousness and the impact it could have on our society, those accused should be remanded pending the determination of the allegations. This was the position of Justice Jaiteh in State v Yankuba Touray, the seriousness of the offences charged and that there is a restriction in Section 99(1) were taken into serious consideration.

On the contrary, it can also be strongly argued, that, deleting Section 99(3) of the CPC by Act No.2 2002, which ordinarily, before, seems to grant an undisturbed discretion to Courts to grant bail or refuse even when one is charged with offences that attract death, as it then was – the discretion of Courts was taken away by exercise of legislative power having regards to the object of the amendment. But then, to my mind, the amendment reiterates the discretion and limits it to grant or refuse in those offences that do not attract the two kinds of punishment – “death or imprisonment for life”. Indeed, even after the amendment in 2002, Courts still, having regard to exceptional circumstances as held in a plethora of judicial decisions, grant bail even under circumstances in Section 99(1) – that restricts them. A case in point is Stave v Ralph Ehrenstein HC/493/15/CR/141/AO/ – where bail was granted given regard to peculiar and special circumstances. Interestingly, courts do not exercise discretion as they wish, they are guided by laid down rules and evidence on a case-by-case basis, if they go out of that circle, the exercise of such discretion will be injudicious and unconstitutional and of no effect, it is based on the reasons advance then, the exercise of such discretion will be considered judicious and judicial – and that itself is a limitation just as the one imposed in the first limb of Section 99(1)– such was also put in OLATUNJI V. FEDERAL GOVERNMENT OF NIGERIA [2003] 3 NWLR (Pt. 807) 406 in these terms;

“in the exercise of discretion to admit an accused person to bail, the court must exercise its discretion judicially and judiciously and not arbitrarily taking into consideration relevant evidence before it in the resolution of questions arising from the case which calls for the exercise of discretion, the decision of the Court must show the basis of the exercise of discretion to grant or refuse application for bail and in advancing reasons for the exercise of discretion the Court must take all relevant evidence into account in the resolution of all questions arising from the application, the Court must also take into account all relevant provisions of the Evidence Act and other statutes which have bearing on the proper determination of the matter, the decision reached by the Court must flow from a thorough appraisal of the material presented before the Court, and where it appears that the Court failed to take into account relevant factors, the appellate court may be justified in interfering with the decision”

The exercise of discretion held in the case above, and in any case such as in Section 99(1) is not a carte blanche, it is guided and regulated by law and has serious considerations of all relevant factors. A careful and thorough exercise of good judgement flows from all the reasons advanced above. In Osborn et al v. The Bank of The United States (1824) U.S) 9 Wheat. 738., 866, Justice Marshall echoed;

“Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise discretion, it’s a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law”

Lord Mansfield even put it more eloquently in his famous dictum in Rex v Wilkes (1770, K.B ) 4 Burr. 2527, 2539;

“Discretion, when applied to a court of justice, means sound discretion guided by law. it must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular”

Niki Tobi JSA shared similar sentiments about judicial discretion  in African Continental Bank v Nnamani 1991) 4 NWLR (Pt. 186) 486  and the court held;

 “The exercise of the court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties”

From the opinions and holding of these jurists, it can be strongly argued, again that, the limitation not to grant bail in Section 99(1) on offences that attract death or imprisonment for life is a procedure laid down by National as contemplated in Section 19(1) and they intend that such be observed by Courts as interpreters of the law. The power of the Courts as the interpreter, especially when it comes to the exercise of discretion is to give effect to the will of the lawmaker, the National Assembly in this case. That is what will be consistent with the Constitution and established principles.

Therefore, the National Assembly did not exceed its legislative power in Section 99(1) of the CPC as this provision came to life by the dictates of Section 19(1) of the Constitution and such, the ground that exists in Section 99(1) in depriving such right in Section 19(1) seems to be consistent, necessary and legitimate with the Constitution. Such power cannot just be always left to the discretion of the Courts or a judge to be exercised as they want. The lawmaker did so to ensure judicial accountability. The limitation, if properly construed, cannot be said to have taken away the discretion especially when the same is necessary and cannot also be said to have violated the right to liberty – the contemplation of Section 19(1) is at work, that such right under it can be limited as it is not absolute and having it limited is necessary. Even though a part of a constitution that is entrenched and deals with fundamental human rights is to be given generous interpretation if the said right is not absolute, regard must also be given to the limitations, if not the whole Constitutional project for progress, peace, public order and security will be defeated.

5. Conclusion

In conclusion, given the importance of human rights – especially the right to liberty and in light of the circumstances that inspired the deletion of subsection (3) of section 99 of the CPC in 2002 together with the new democratic dispensation ushered in The Gambia from 2016 to date and the Gambia being a bastion of human rights from 1960 to 1994 – threatened from 1994 to 2016 – but restored now – it will do only good for the law-maker to revise the CPC and bring back the deleted section to grant courts discretion to consider granting or refuse bail depending on factors it usually considers. This will enhance the enjoyment of the right to liberty as one of the leading rights our Constitution guarantees for citizens and those in the Gambia. But generally, limiting Court I section 99(1) makes sure Judges operate within defined legal standards and exercise discretion within the parameter set. Such ensures judicial accountability so that potential misuse of discretionary power can be avoided.

Also, public interest litigators and Civil Society Organizations can challenge the constitutionality of the seeming deprivation of the right to liberty in section 99(1) of the CPC even though from my analysis I strongly believe it is constitutional.

Sheriffo Jobarteh