PROCEDURE OF THIS COURT
S.72(1) of the Children’s Act provide that –
(a) The Court shall sit as often as necessary;
(b) The child’s right to privacy shall be respected throughout the proceedings and accordingly, proceedings shall be held in camera or where necessary by video links;
(c) Proceedings shall be as informal as possible, and by enquiry rather than by exposing the child to adversarial procedure;
(d) Parents or guardians of the child shall be present whenever possible;
(e) The child shall have a right to give an account and express an opinion;
(f) The child shall have a right to legal representation and legal aid provided by Government; and
(g) The right to appeal shall be explained to the child and his or her parents or guardian.
SITTINGS OF THE COURT
By virtue of S.71 of the Children’s Act, the court shall, whenever possible sit in a building different from the one normally used by other courts.
The sittings of the court are not open to the general public. S.72(2) of the Act provides that –
(a) The parties to the case before the Court, witnesses and other persons directly concerned in the case;
(b) The parent or guardian of the child before the Court;
(c) A Social Welfare Officer;
(d) A Probation Officer; and
(e) Any other person whom the Court Authorizes to be present.
This restriction is not in conflict with the provision of S.24(2) of the 1997 Constitution which requires that all proceedings of every court shall be held in public, by virtue of the proviso there. The said S.24(2) and the proviso thereto stated that –
“All proceedings of every court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any other authority including the announcement of the decision of the court or other authority, shall be held in public:
Provided that the Court or other authority may, to such extent as it may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or interlocutory civil proceedings, or to such extent as it may be empowered or required by law to do so in the interest of defense, public safety, public order, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings, exclude from its proceedings persons other than the parties thereto and their legal representatives.”
The publication of information that may lead to the identification of a child in a case before the Children’s Court is prohibited and criminalized by S.73 of the Children’s Act which provides that –
1) A person shall not publish information that may lead to the identification of a child in any matter before the Court, except by permission of the Court.
2) A person who contravenes the provisions of subsection (1) commits an offence and is liable on conviction to a fined of five hundred thousand dalasis or imprisonment for a term not exceeding three years or to both the fine and imprisonment.
JURISDICTION OVER APPEALS DECISIONS OF CHILDREN’S COURT
S.232 of the Children’s Act provide that –
An appeal shall lie, in a case involving the trial of a child, from –
(a) The Children’s Court to the High Court;
(b) The High Court to the Court of Appeal; and
(c) The Court of Appeal to the Supreme Court.
It is established by S.18 of the Labour Act Cap56:01 Vol.VI Laws of The Gambia 1990 in the City of Banjul and in every Division.
S.19 Of the Labour Act provide that –
(1) The Tribunal shall be presided over by a magistrate of the First Class as Chairman and a panel of members appointed by the Chief Justice, on the recommendation of the Attorney General.
(2) The Minister shall, in making a recommendation under subsection (1) of this section, consult with any organization of employers, the management of public corporations and trade unions registered as efficient.
(3) The panel of members appointed under subsection (1) of this section shall be persons with experience of management, or as trade union officials or otherwise representing workers in industrial relations.
The Industrial Tribunal relies on the officers of the Magistrates Court where it sits for its operations. It does not have its own operational personnel. This situation is provide for in S.20(1) of the Labour Act provides that –
“The officers of the Magistrate’s Court appointed under section 24 of the Courts Act shall be the officers of the Tribunal and in addition to the powers or duties conferred or imposed by this and any other Act may, exercise such powers and perform such duties, in so far as the same are applicable to the business of the Tribunal, as those exercised or performed by them in the Magistrate’s Court.”
S.20(2) of the same Act also provides that –
“In the exercise of his powers and performance of his duties under this Act, a person to whom this section applies shall be subject to the same liabilities and penalties and have the benefit of the same protection as attach by virtue of the Courts Act to a person exercising or performing similar powers or duties under that
The Jurisdiction of the Industrial Tribunal is prescribed in S.21 of the Labour Act which provides that –
(1) The Tribunal shall, subject to the provisions of subsection (2) of this act and to any requirement of this Act as to the procedure for notification to the Commissioner of such a claim, have jurisdiction in respect of all individual claims arising under any contract of employment.
(2) The Tribunal shall have jurisdiction in any matter specified in subsection (1) of this section against or in respect of any person being at the time of writing in the territory of The Gambia whether or not the cause of action arose within or outside The Gambia and whether or not any person by, against or in respect of whom the complaint is brought has his usual residence outside The Gambia.
PRACTICE AND PROCEDURE
The practice and procedure of the Industrial Tribunal is provided for in Ss.22 to 55 of the Labour Act.
By virtue of S.53 of the Labour Act, “The Rules Committee of the Supreme Court may make rules regulating the procedure for –
(a) applying for review, and the hearing of such applications, under
section 42 of this Act;
(b) Applying for leave to appeal;
(c) the hearing of appeals.
S.55 of the Labour Act provide that –
“In any matter of procedure for which no provision is made by this Act or by rules made pursuant to section 53 of this Act, the procedure applicable shall be such as the Chairman may determine.“
RIGHT OF AUDIENCE
S.35 of the Labour Act prescribes the persons that has right of audience before the Tribunal. It states that –
(1) The following persons shall have a right of audience before the Tribunal:
(a) A claimant or defendant;
(b) An authorized officer;
(c) An officer or servant of an unincorporated company or a
member of a partnership, if the company or partnership is a party; and
(d) With the leave of the tribunal, no office-bearer of a registered trade union or of an association of employers, who is authorized in writing by a claimant or defendant to appear as his representative.
(2) No legal practitioner, unless he is acting on his own behalf as a claimant or a defendant, shall have a right of audience before the Tribunal.
The provision of S.35(2) of the Labour Act which excludes legal representation by counsel for parties in cases before the Tribunal has been struck down by the Courts as unconstitutional, null and void in a plethora of cases