Ensa Jammeh, a Gambian national and a farmer by profession, was charged with drug trafficking (cannabis sativa) sometime in 2019. He was subsequently convicted and sentenced to 10 years’ imprisonment.
Ensa has been serving his sentence at Mile 2 prison since 9 May 2019 to date.
Muhammad Jammeh is also a Gambian national and a barber who was charged with possession of drug (cannabis sativa) sometime in 2024.
Muhammad was subsequently convicted and sentenced to 3 years' imprisonment. He has been serving his sentence at Mile 2 Central Prison since 14 August 2024 to date.
In separate applications before Hon. Justice Jaiteh, Muhammad Jammeh, and Ensa Jammeh lodged applications pursuant to section 258 of the Criminal Procedure Act 2025, requesting the court to make orders granting them parole and suspending the remainder of their sentences pursuant to section 258 of the Criminal Procedure Act 2025.
In response to the applications, the state law office opposed and contended, inter alia, that the statutory framework governing parole under section 258 of the Criminal Procedure Act 2025 is not fully operational due to the absence of Regulations and prescribed rehabilitation facilities, rendering the parole mechanism presently incapable of implementation.
Hon. Justice Jaiteh’s Analysis of Section 258 of the Criminal Procedure Act 2025
In delivering his judgment on the application, Hon. Justice Jaiteh said Section 258 of the Criminal Procedure Act 2025 establishes a statutory regime for parole. He said it provides that a qualifying prisoner who is not serving a capital sentence, who has demonstrated good behaviour, and who has served at least one-third of his sentence, may apply to the High Court for parole.
Justice Jaiteh said under subsection (3), the Court may, after considering the representations of the Attorney General and the Director General of Prisons, suspend the remainder of the sentence and order the release of the prisoner on parole.
He said section 258(4) provides that "A prisoner released under sub-section (1) shall undergo a rehabilitation programme in a Government facility or any other appropriate facility prescribed by Regulations to enable him or her to be properly reintegrated into society."
He said: “The use of the word 'shall' indicates a mandatory statutory requirement. The provision creates a legal obligation that a prisoner released on parole must participate in a rehabilitation programme at a facility specified by Regulations.”
Justice Jaiteh further stated that the absence of Regulations and Operational Framework, the Attorney General, in a representation in the case of the Convict - Lamin Lang Sanyang v the State [HC/932/25/CR/276/D0], has correctly submitted that: No Regulations have been enacted to prescribe rehabilitation facilities under section 258(4); and no governmental or approved rehabilitation facility has been designated pursuant to the Act.
“This Court agrees that these omissions render the parole regime under section 258 inchoate and presently inoperable. The Court cannot lawfully suspend a sentence and release a prisoner on parole in the absence of the mandatory statutory framework governing post-release rehabilitation,” Justice Jaiteh said.
He further states that the Judicial discretion under subsection (3) cannot override the mandatory statutory condition imposed under subsection (4). To do so, he said, would amount to judicial legislation and an impermissible usurpation of the legislative function.
Justice Jaiteh said that while the Court acknowledges the positive conduct and rehabilitative efforts of both Muhammad Jammeh and Ensa Jammeh, the statutory parole mechanism under section 258 of the Criminal Procedure Act 2025 is not yet fully operational due to the absence of Regulations and prescribed rehabilitation facilities.
“Accordingly, this Court finds that the application is premature and legally incompetent. The application is hereby struck out,” he said.
Justice Jaiteh also said the applications were struck out without prejudice to Muhammad and Ensa’s right to reapply when the requisite Regulations and operational framework for parole have been duly established.
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