THE COURT MARTIAL AND THE LAW

Since three accused persons out of six have been sentenced to death by
the Court Martial. Foroyaa has been trying to find out whether any body
on the side of the Government was killed by the insurgents
during the insurgency. We are yet to discover any allegation of death caused by insurgents.
The reason for this enquiry is simple. Section 18 Subsection (2) of
the Constitution, which has been properly interpreted by the Supreme
Court, states among other things that    “As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence
involves violence, or the administration of any toxic substance,
resulting in the death of another person.”
Hence under Gambian law one who has not killed another person cannot
be sentenced to death.
Secondly, section 96 of the Armed Forces Act reads:
“A general court-martial may try any person subject to this Act who is
alleged to have committed an offence under this Act.”
Hence, a court-martial is restricted to charges which could be
preferred for offences under the Armed Forces Act. We have read the
whole Act and have not seen any provision dealing with treason under
the Act. We will continue our search.
One may now ask: Is the verdict of a Court Martial conclusive? The
answer is in the negative. According to Section 127 of the Armed
Forces Act,
“  ……the Court of Appeal shall hear and determine all appeals referred
to it in accordance with the provisions of this Act, from decisions of
any court-martial.

Subsection (2) adds: “The Court of Appeal shall, in the exercise of
its appellate jurisdiction under this Act, apply all the provisions of
the Court of Appeal of The Gambia Act to appeals from courts-martial
in the same manner as they apply to appeals from the High Court.”

In short, the Armed Forces Act makes provision for appeals from Courts
–Martial. It states : “A person who has been found guilty by a
court-martial shall have a right to appeal to the Court of Appeal, in
such form, manner and within such time as may be prescribed, in
respect of either or both of the following matters-

(a)     the legality of any or all of the findings; and

(b)     the legality of the whole or any part of the sentence.”

Furthermore, the constitution stipulates in section 130 subsection (2)
that, “The Court of Appeal shall have jurisdiction in appeals from
Court Martial in the manner provided by law.”
The battle of legal minds is unfolding. We hope the media would not be
excluded this time to give coverage to any proceedings before the
Court of Appeal.