At the commencement of proceedings, the charges were read to the accused for the purpose of taking his plea. However, before a plea could be taken, Counsel for the accused, S. K. Jobe, informed the court that he had an objection to raise regarding the competence of the charges.
Counsel Jobe argued that by virtue of the Criminal Offences Act 2025, the Criminal Code has ceased to exist, having been expressly repealed under Section 344 of the Act.
He submitted that since the counts contained in the bill of indictment were based on the repealed Criminal Code and related procedures, the entire process before the court was fundamentally defective.
In advancing his argument, Counsel Jobe relied on Nigerian case law and urged the court not to act on a repealed law, contending that any charge grounded on such a law was fundamentally defective. He thus called on the judge to quash the bill of indictment preferred by the prosecution.
In response, the prosecutionled by E. R. Dougan and supported by P. Gomez, F. Drammeh, M. Jammeh and A. Badjie, opposed the objection. The State argued that the alleged offence was committed prior to the commencement of the Criminal Offences Act 2025 and that the repeal of the Criminal Code did not extinguish liability for offences committed before the new law came into force.
Justice Jobarteh identified the sole issue for determination as whether the repeal of the Criminal Code, Cap 10:01 of the Revised Laws of The Gambia 2009, by Section 344 of the Criminal Offences Act 2025 rendered the present charges incompetent.
In his ruling, the judge acknowledged that Section 344 expressly repeals the Criminal Code but emphasised that the effect of such repeal must be understood in light of established principles of statutory interpretation. She referred to the savings clause under Section 2(1)(c) of the Criminal Offences Act 2025, which provides that nothing in the Act shall affect the liability, trial or punishment of a person in respect of acts done or commenced before the commencement of the Act.
The court held that criminal liability attaches at the time an offence is committed and not at the time of trial. “Acts committed before the commencement of the Criminal Offences Act 2025 are therefore saved and remain prosecutable under the repealed law.”
The judge further stated that the new Act cannot be applied retrospectively to criminalise or punish past conduct, as doing so would offend constitutional guarantees of fair trial.
Consequently, Justice Jobarteh ruled that the repeal of the Criminal Code does not invalidate prosecutions for offences allegedly committed prior to the commencement of the Criminal Offences Act 2025.
The objection was dismissed.
The court held that the charge before it was competent and proceeded to take the plea of the accused.
