S.137(1) of the 1997 Constitution provides for the establishment of a Cadi Court in such places as the Chief Justice shall determine.
S.137(2) of the 1997 Constitution provide that the Cadi Court shall be constituted for hearings at first instance by a panel consisting of the Cadi and two other scholars of the Sharia qualified to be a Cadi or Ulama.
This subsection used to have parts 9a) and (b). The later was deleted by the Constitution (Amendment) Act No.6 of 2001.
S.137(6) of the Constitution provides that a person shall be required to be of high moral standing and be professionally qualified in the Sharia in order to be appointed a Cadi or Ulama..
S.137(3) of the Constitution provides that the decision of the majority of a panel of a Cadi Court shall constitute the decision of the Court.
S.137(4) provides that the Cadi Court shall only have jurisdiction to apply the Sharia in matters of marriage, divorce and inheritance where the parties or other persons interested are Muslims.
This is the forerunner to the Cadi Court. It has been replaced by the Cadi Court. There were two Mohammedan Courts, namely, the Mohammedan Court of Banjul and the Kombo Saint Mary Mohammedan Court.
The Mohammedan Court of Banjul was established by S.4 of the Mohammedan Law Recognition Act Cap 6:04 Vol.II Laws of The Gamier 1990. The Kombo Saint Mary Mohammedan Court was established by S.5 of the same Act.
S.6(1) of the Mohammedan Law Recognition Act provide that each of such Court shall be constituted by a Cadi to be appointed by the Judicial Service Commission. The proviso to S.6(2) states that –
(a) Whenever in the opinion of the Minister, a Cadi of a Court is not a man of uncontested ability, the Court shall be constituted by the Cadi and two assessors.
(b) Whenever an office of Cadi is vacant or a Cadi is unable by reason of absence from the City of Banjul or Kombo Saint Mary or illness or incapacity or perform the duties of his office, the Court shall be constituted by two or more Assessors and the senior shall give the judgment of the Court.
An assessor here is defined in S.692) of the Act to mean a person of the Mohammedan faith who is a justice of the peace of the City of Banjul or Kombo Saint Mary.
The power to select Assessors for this is vested on the Chief Justice by S.6(3) of the Act.
S.7 of the said Act provide that –
“Each court shall have jurisdiction in all causes and matters, contentious or uncontentious, between or exclusively affecting Mohammedan Africans, relating to civil status, marriage, succession, donations, testaments and guardianship.” “
S.12 of the said Act provides that –
“The Minister may, by Order published in the Gazette, confer upon the Kombo Saint Mary Mohammedan Curt jurisdiction to enforce within the limits of its jurisdiction all or any of the provisions of any Act or Acts specified in such Order and to impose penalties on person subject to the jurisdiction of the court who offend against such provisions, if any, as may be specified in the Order.”
S.9(1) of the Act provide that an appeal shall be from any decision of the Mohammedan Court of Banjul to the High Court. S.10(1) makes similar provisions for appeal to the High Court from a decision of the Kombo Saint Mary Court.
For the purpose of hearing such appeal, a Tamsir or person learned in the Mohammedan law shall sit as Assessor to the Chief Justice for advisory purposes only. See S.9(2) and S.1092) of the Mohammedan Law Recognition Act.
S.137(4) of the 1997 Constitution provide that any party to a proceeding in the Court who is dissatisfied with a decision of the Court may appeal to the Cadi Appeals Panel.
The Cadi Appeals Panel is established by S.137A(1) of the 1997 Constitution.
The Constitution of the Panel is prescribed by S.137A(1) as follows –
(a) a chairperson; and
(b) not less than four other members.
By virtue of S.137A(1) the quorum of the Panel when sitting to deal with any matter before it shall be constituted by three members of the Panel. S.137A(3) provides that the chairperson of the Panel shall preside at a sitting of the Panel and in his or her absence, the most senior member shall preside.
S.137(A)(4) provide that the Chairperson and other members of the Panel shall be appointed by a Cadi Appeals Selection committee which shall consist of –
(a) The Chief Justice;
(b) The Attorney General; and
(c) A member of the Supreme Islamic Council nominated by that Council.
S.137(A)(5) provides that a person shall not be qualified for appointment to the Cadi Appeals Panel –
(a) As a Chairperson, unless the person –
(i) Is a legal practitioner and has been so qualified for a period of not less than five years and
(ii) Is professionally qualified in the Sharia.
(b) As a member, unless the person is professionally qualified in the Sharia.
S.137(a)(6) of the Constitution vests in the Panel. The jurisdiction to hear and determine appeals from judgments of the Cadi Court and from the District Tribunals where Sharia Law is involved.
The power to make rules of practice and procedure of the Panel is vested by S.137A(7) of the Constitution on the Cadi Appeals Selection Committee.
1. The Mohammedan Law Recognition Act or any part of it has not been repealed or abrogated expressly or by necessary implication by any law of the Gambia.
Ss.137 did not vest exclusive jurisdiction on the Cadi Courts to apply the Sharia in matters of marriage, divorce and inheritance of Muslims. It merely vested such jurisdiction on Cadi Courts without more. S.137(A)(6) of the Constitution show that the constitutional intendment is to allow for the concurrent exercise of that jurisdiction by other Courts. It provides for the hearing and determination of appeals from the decisions of District Tribunals on Sharia law matters. The entire constitution remain silent on the Mohammedan law Recognition Act and the Mohammedan Courts created there under. So that the Mohammedan Courts and the jurisdiction vested in those Courts continue to subsist.
Equally the appellate jurisdiction vested in the High Court to hear and determine appeals from the decision of the Mohammedan Courts on Islamic personal law matters by Ss.7 and 12 of the said Act is not abrogated. S.137(A)(6) in vesting jurisdiction on the Cadi Appeals Panel to hear appeals from decisions of Cadi Courts and District Tribunals on Sharia Law did not make it exclusive.
In Harding V Harding
The challenge to the jurisdiction of the Kombo Saint Mary Mohammedan Court and the decision that the Court was not constituted as required by S.137(2) of the Constitution and that the Mohammedan Law Recognition was in conflict with the constitution proceeded on the assumption that the Mohammedan Law Recognition Act is in conflict with the 1990 Constitution and the Mohammedan Court System became abolished upon the commencement of the 1997 Constitution by virtue of S.137(2) of the said Constitution. It is clear from the foregoing observation that this assumption is wrong. There is clearly no conflict between the Constitution and the said Act. The mere fact the jurisdiction vested in an existing Court by an Act of the National Assembly, is also vested by the Constitution on another Court, does not necessarily mean that the Act is thereby in conflict with the constitution or that the Court created under the Act ceases to exist. Unless the wordings of the Constitution show an intention to abrogate the Act or the Court created there under, it is wrong in law to read such a meaning into them. The repeal of an enactment can only be express or by necessary implication. In Lt Jarju and Anor V State, the Gambia Court of Appeal was confronted with the determination of the question, whether S.35 of the Criminal Code Cap.10 Vol.III Laws of the Gambia 1990 is in conflict with S.6(1) of the Constitution for the reason that the offences of treason provided for in S.6(1) of the Constitution does not include the offences prescribed in S.35 of the Criminal Code. The Court held that there is no conflict between S.35 of the Criminal Code and S.6(1) of the Constitution and that the later merely creates a further category of the kind of acts or omissions that can amount to treason.
The ouster of the jurisdiction vested by an enactment on a Court created by that or other enactment must be express and cannot be by implication.
2. S.137 does not indicate who has the power to convene the Cadi Appeals Selection Committee. It appears that the power can be exercised by the Chief Justice by virtue of S.121(2) of the Constitution which states that he or she is to be responsible for the administration and supervision of the Courts.
3. It is not clear why S.137(A)(7) did not also empower the Cadi Appeals Selection committee to make rules of practice and procedure for the Cadi Courts and only limited the exercise of that power to the Cadi Appeals Panel. Although S.121(20 of the Constitution provides that an Act of the National Assembly may provide for the making of rules by the Chief Justice or such other authority as may be specified therein for regulating the practice and procedure of the Courts, it is suggested for obvious advantages that S.137(A)(7) be amended to empower the Cadi Appeals Selection Committee to also make rules of practice and procedure for Cadi Courts.
4. The phrase “professionally qualified in the Sharia” as used in S.137(6) and S.137(A)(5)(ii) and (b) of the Constitution is not definite. It begs the question, who is professionally qualified in the Sharia. There is nothing in any part of any of the laws of the Gambia prescribing professional qualification in the Sharia or the professional practice of Sharia law. S.137(6) and 137(A)(5)(a)(ii) and (b) may prove that it may also be difficult to properly constitute the Cadi Courts and Cadi Appeals Panel. In addressing the issue it must be borne in mind that there is a distinction between a person learned in Islamic theology or Sharia and a person professionally qualified in the Sharia. The idea of a professional qualification, to my mind, means that in addition to being learned in the Sharia, a person has been professionally trained, certified and is admitted to practice Sharia Law.
It is equally noteworthy that the above phrase is different from the phrase “a person qualified in the Sharia.”