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INSTITUTION AND DISCONTINUANCE OF CRIMINAL PROCEEDINGS

Criminal Proceedings can be instituted in courts vested with the criminal jurisdiction by persons
or authorities competent to do so: the AG’s office, the police and private persons.

1. INSTITUTION OF CRIMINAL PROCEEDINGS BY THE AG’s OFFICE

Subject to the approval of the AG, the DPP is given the power under s. 85 (1) of the Constitution
to:
(a) Initiate and undertake criminal proceedings against any person before any court for an
offence against the laws of The Gambia.
(b) Take over and continue any criminal proceedings that have been undertaken by any
other person or authority.
(c) Discontinue at any stage before judgment is delivered, any criminal proceeding
instituted or undertaken by himself or herself or any other person or authority.

Please note that the DPP cannot take over and continue any private prosecution without the
consent of the private prosecutor or the court. He cannot also discontinue private prosecution
without the consent of the private prosecutor. See the Proviso to s. 85 (1) of the Constitution.

The DPP can exercise the said powers in person or through person’s under his direction and
control. He is also subject to the direction or control of the AG. See s. 85 (3) and (4) of the
Constitution. The DPP is appointed by the President and to qualify to be appointed as one, a
person must be qualified to be appointed a judge of the High Court. The DPP can only be
removed from office for inability to perform his/her functions or misbehaviour and
incompetence. See s. 84 of the Constitution. The AG is the principal legal adviser to the
government and has the right of audience in all courts in The Gambia. A person shall not be
qualified to be appointed as AG unless he/she is a legal practitioner of at least five (5) years
standing at The Gambian. See s. 72 (2) and s. 71 (2) of the constitution. Cases before superior
courts are prosecuted by public prosecutors from the AG’s Chambers/ office. Just like the DPP,
these prosecutors are subject to the direction of the AG. They may appear and prosecute
without any written authority before any court whether at the trial stage or appeal. See s. 66 of
the CPC.

a. ENTRY OF NOLLY PROSEQUI/DISCONTINUANCE

As we have noted above, the DPP is given the power to discontinue any criminal case at any
stage before judgment is delivered. We also noted that where a person is a private prosecutor,
it must be done with his (the private person’s) consent. We also noted that the PP is subject to
the direction and control of the AG in exercising his or her powers.

S. 64(1) of the CPC provides:

In any criminal case and at any stage thereof before verdict or judgment, as the case
may be, the AG may enter a nolle prosequi either by stating in court or by informing the

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court in writing that the State intends that proceedings shall not continue and
thereupon the accused shall be at once discharged in respect of the charge for which a
nolle prosequi is entered, and if he has been committed to prison shall be released, or if
on bail his recognisances shall be discharged; but such a discharge of an accused person
shall not operate as a bar to any subsequent proceedings against him on account of the
same facts.

S. 64 (1) of the CPC was amended by the Criminal Procedure Code (Amendment) (No.2) Decree,
1995, Decree No.50. This Decree introduced a new subsection (s.64 (3)). It provides that the
reference to AG in s. 64 (1) shall now be construed to include the Solicitor General, DPP and
Deputy DPP. Thus in addition to the AG, the Solicitor General, DPP, and Deputy DPP may all
enter a nolle prosequi.

The power to enter a nolle prosequi is a common law principle codified by s. 64 of the CPC. It is
not different in substance from the power to discontinue embedded in s. 85 the Constitution
which provides that “The Director of Public Prosecutions shall have power in any case in which
he or she considers it desirable to do so, and subject to the approval of the Attorney General to
discontinue, at any stage before judgment is delivered, any criminal proceeding instituted or
undertaken by himself or herself or any other person or authority.”1

Both processes are subject to the direction of the AG and boil down to the same thing.

Under s. 64 (2) of the CPC, if the accused is not before the court when such nolle prosequi is
entered, the clerk of such court shall forthwith cause notice in writing of such nolle prosequi to
be given to the keeper of the prison in which such an accused is detained. If the accused person
has been committed for trial, a notice in writing of the entry of the nolle prosequi shall be
submitted to the subordinate court by which he was so committed and such subordinate court
shall forthwith cause a similar notice in writing to be given to any witnesses bound over to
prosecute and give evidence and to their sureties (if any) and also to the accused and his
sureties if he is admitted to bail.

It appears that the powers given to the AG under s. 64 are absolute. Can a person aggrieved by
the AG in exercise of his powers of nolle prosequi initiate proceedings against the AG in court
challenging the AG’s exercising of his powers? It appears that there is no decided case in the
Gambia on the matter. In the Nigerian case of The State v. S.O Ilori 1983 1 SCNLR 142, Eso JSC,
as he then may, stated thus:

But more importantly is the fact that a person who has suffered from the unjust exercise of his
powers by an unscrupulous Attorney General is not without remedy; for he can invoke other
proceedings against the Attorney General.

1
Note that the DPP can only discontinue a private prosecution with the consent of the private person as noted in
our discussions on private prosecutions below.

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b. EFFECTS OF A NOLLE PROSEQUI OR DISCONTINUANCE

A discontinuance entered by the DPP pursuant to s. 85 (1) (c) of the Constitution or a nolle
prosequi entered by the AG in person or the Solicitor General or DPP or Deputy DPP pursuant to
s. 64 of the CPC or a discontinuance or nolle prosequi entered by officers of the AG’s office on
behalf of the said officials have the same effect. They terminate criminal proceedings. The
proceedings are therefore stayed. Upon the proceedings being terminated, the accused person
will be discharged. Thus a nolle prosequi or discontinuance operates as a mere discharge and
not as an acquittal. As stated by Aniagolu JSC in The State v. Ilori (supra):

The AG may, therefore, enter the nolle prosequi for as many times as the occasion
demands. It is to be appreciated that a nolle prosequi is only a temporary proceeding
which has the effect only of a stay and not of a quashing of the indictment which
technically may later be prosecuted without a fresh indictment.

c. WITHDRAWAL FROM PROSECUTION

Section 68(1) of the CPC provides:

“In any trial or inquiry before a subordinate court, any prosecutor, with the consent of
the court, or on instructions of the AG at any time before judgment is pronounced, may
withdraw from the prosecution of any person either generally or in respect of any one
or more offences with which he is charged.”

d. EFFECTS OF WITHDRAWAL UNDER s. 68 (1) CPC

Note that s. 68 (1) of the CPC only applies to proceedings before a subordinate court and is
different from a power of discontinuance or the power to enter nolle prosequi. If the
prosecutor with the leave of the court withdraws a case or the AG withdraws a case, the effect
of such withdrawal is as follows:

If the withdrawal is made before the accused is called upon to make his defence, the accused
must be discharged. However, a magistrate can exercise his discretion to acquit the accused if
satisfied upon the merits of the case that such is a proper order. If the withdrawal is made
after the accused is called upon to make his defence, he must be acquitted. A discharge of an
accused person under s. 68 (1) shall not operate as a bar to subsequent proceedings against
him on the same facts. See s. 68 (1) of the CPC.

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2. INSTITUTION OF CRIMINAL PROCEEDINGS BY THE POLICE

Any police officer may conduct in person any prosecution in person before any court of
summary jurisdiction whether the information or complaint is laid in his name or not. See s. 28
of the Police Act (Cap 18). Most of the prosecutions in the Magistrates’ Courts are conducted
by police prosecutors. S. 69 (1) of the CPC provides that criminal proceedings may be instituted
by a police officer bringing a person arrested with or without warrant before a Magistrate upon
a charge. Criminal proceedings can also be instituted by a police officer preferring a charge
against a person before a Magistrate and requesting the issue of a warrant or a summons. If a
prosecutor in a summary trial is a police officer, it shall be sufficient if in the title of proceedings
the prosecutor is described as the Inspector General of Police (IGP). See s. 67 (3) of the CPC.

Note the power of withdrawal given to prosecutors (including police prosecutors) under s. 68
(1) of the CPC.

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3. INSTITUTION OF CRIMINAL PROCEEDINGS BY THE NATIONAL DRUG ENFORCEMENT

AGENCY (NDEA)

Section 133 of the Act provides that the NDEA may undertake the prosecution, in its name, of
offenses under the Drug Control Act.

Note also the power of withdrawal given to prosecutors (including officers of the NDEA
prosecuting offences) under s. 68 (1) of the CPC.

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4. INSTITUTION OF CRIMINAL PROCEEDINGS BY PRIVATE PERSONS

This is defined in s. 85 (5) of the Constitution as prosecution instituted by any person or

authority other than the DPP or any person acting under his or her direction and control or any
person other than a police officer or an officer in the public service in the exercise of the
functions of his/her office.

Private persons may institute criminal proceedings against a person alleged to have committed
an offence by laying a complaint before a court. In practice, private persons usually lay their
complaint at the police station. If the persecutor in a summary trial is a private person, his
name shall appear in title of the proceedings as the prosecutor. See s. 67 (3) of the CPC.

Note that if proceedings are instituted by a private person, the DPP cannot take over or
discontinue the proceedings without the consent of the private person.2

2
See the Proviso to s. 85 (1) of the Constitution.

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