Section 139(2) provides:
A person shall be qualified to be appointed a judge of the Supreme Court if he or she holds or has held office as a judge of the Court of Appeal, or as a judge of a court having similar jurisdiction in a common law country, in each case for not less than five years, or if he or she has practised as a legal practitioner before a court having unlimited jurisdiction in civil and criminal matters in a common law country for not less than twelve years.
The central question is not whether Mr. Faal is an accomplished lawyer; his credentials are widely recognized. The real question is whether his decades of legal practice in the United States, a common-law jurisdiction, satisfy the constitutional standard. In my view, a fair and purposive reading of Section 139(2) supports the conclusion that they do.
The Gambia inherited the English common-law tradition, as did the United States. Although American law has developed independently, American courts continue to apply common-law principles, rely heavily on judicial precedent, and operate within the same broad legal family. Lawyers trained and practising in the United States work daily in a legal system grounded substantially in common law. To treat the United States as wholly outside that tradition would overlook centuries of legal development.
The same point is illustrated by other jurisdictions. Nigeria applies English common law and equity alongside statutes, constitutional law, customary law and, in parts of the country, Islamic law. Ghana relies on its Constitution and legislation, English common law and equity, judicial precedent, and customary law. The United States likewise draws upon constitutions, statutes, judicial precedent, common-law principles, and administrative regulations. Their national systems are not identical, but each belongs, in substantial part, to the common-law legal tradition.
Section 139(2) should therefore be interpreted in light of the purpose it was designed to serve: ensuring that a Supreme Court judge, and by extension a Chief Justice, possesses substantial legal experience in a common-law environment. It should not be read to exclude distinguished Gambian lawyers merely because their professional experience was acquired in another common-law jurisdiction.
Mr. Faal's career reflects the kind of experience the Constitution was intended to recognize. For decades, he has practised at the highest levels of the legal profession, handling complex litigation, arbitration, and international disputes. He has advised governments, multinational corporations, and international institutions. He has also represented The Gambia before international tribunals, bringing distinction to the country and demonstrating a sustained commitment to justice and the rule of law.
Professional experience, however, is only part of what the office demands. A Chief Justice must possess independence, integrity, courage, wisdom, and sound judgment. Those qualities cannot be measured solely by counting years of service in one jurisdiction. They are demonstrated over a lifetime of legal practice, ethical leadership, and commitment to justice. Mr. Faal's record presents a compelling case that he possesses the stature required to command respect at home and abroad and to strengthen public confidence in the judiciary.
Some lawyers may disagree about the proper interpretation of Section 139(2). Constitutional interpretation often gives rise to genuine differences of opinion. Until a court or another competent constitutional authority resolves the question, neither side should present its interpretation as beyond debate. But disagreement should not obscure the larger objective: selecting the person best equipped to lead the judiciary with competence, independence, and integrity.
The Constitution should be interpreted to advance justice, not to create unnecessary barriers that prevent highly qualified Gambians from serving their country. Where the language is genuinely open to more than one reasonable interpretation, it should be construed in a way that promotes excellence in public service while remaining faithful to the common-law tradition from which The Gambia's legal system is derived.
That is why I find the Bar Association's decision to take its protest quickly to social media, before the constitutional process had run its course, both surprising and disappointing. Constitutional questions of this importance are best addressed through careful legal reasoning and the appropriate institutional processes, not through Social media adjudication. The episode calls to mind the old legal adage: 'If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.'
The office of Chief Justice is not merely about satisfying technical requirements. It is about ensuring that the nation's highest judicial office is occupied by someone capable of protecting constitutional democracy, defending judicial independence, and inspiring public confidence in the courts.
On that measure, Edi M.O. Faal stands among the strongest candidates The Gambia has ever produced.
Author: Alagie Sanyang
MSc, Columbia University, New York
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