21/06/2026
The Prosecution of Homicide Under The Gambia’s Criminal Justice System: A Legal Analysis of the Murder Trail
INTRODUCTION AND JURISDICTION
The accused person shall be arraigned before the judge of Hig for the offence of murder contrary to Section 155 of the Criminal Offences Act, 2025. The High Court exercises original jurisdiction over murder trials, being the superior court of record with competence to try capital and serious offences in The Gambia.
The trial is scheduled to commence with the formal reading of the charge and the accused entering a plea of GUILTY or NOT GUILTY, as is standard procedure under the Criminal Procedure Code.
THE OFFENCE OF MURDER: DEFINITION AND PUNISHMENT
Legal Definition of Murder
Under Section 155 of the Criminal Offences Act, 2025, murder is defined as follows:
"A person who of malice aforethought causes death of another person by an unlawful act or omission commits the offence of murder."
Malice Aforethought
Section 157 of the Act elaborates that malice aforethought is established by evidence proving any one or more of the following circumstances:
(a) An intention to cause the death of or to do grievous harm to a person;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to a person;
(c) Using violent measures in the commission of, or attempt at, a felony; or
(d) An intention by the act or omission to facilitate the flight or escape from custody of a person who has committed or attempted to commit a felony.
Punishment
Section 156 of the Criminal Offences Act, 2025 provides that:
"A person convicted of murder shall be sentenced to imprisonment for life."
This represents a significant departure from the former Criminal Code under which murder was punishable by death. The current law now prescribes life imprisonment as the mandatory sentence for murder convictions.
THE DEFENCE STRATEGY
Upon entering a plea of NOT GUILTY, the accused, with the assistance of legal counsel, will be permitted by the trial judge to open and prepare his defence. The accused intends to rely on the following two principal defences:
Defence of Infirmity of Mind (Insanity / Diminished Responsibility)
The defence of insanity is recognised in The Gambia's legal framework. The Criminal Offences Act, 2025 makes provision for the defence of insanity. The legal test for insanity is anchored in the M'Naghten Rules, which require the defence to prove that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.
The burden of proving the defence of insanity lies on the defence, to be established on a balance of probabilities. If successfully proved, the accused may be found not guilty by reason of insanity and may be detained at the pleasure of the President or committed to a mental health facility.
Alternatively, the defence may rely on diminished responsibility, which, if proved on a balance of probabilities, would reduce the conviction from murder to manslaughter. The defence must show that the accused was suffering from an abnormality of mind (whether arising from arrested or re****ed development of mind, inherent causes, or disease or injury) which substantially impaired his mental responsibility for his acts.
Defence of Self-Defence
The defence of self-defence is a complete defence to a charge of murder if successfully established. Under Gambian law, a person is justified in using reasonable force to preserve his or her own life or to defend against an unlawful attack.
The High Court in Balla Ceesay v. The State outlined the three key elements required to establish self-defence:
The accused was not the aggressor the deceased must have been the one who initiated the attack;
Reasonable apprehension of death or serious injury – the accused must have reasonably believed that he was in imminent danger of death or grievous bodily harm; and
Proportionate response the force used must have been proportionate to the threat faced.
The court in that case, citing the English authority of Palmer v R (1971) , observed that a person under attack cannot be expected to measure defensive force with precision. The use of a broken bottle to stab the victim at the neck would, however, be subject to close judicial scrutiny as to whether such force was proportionate to the threat faced.
Crucially, the burden of disproving self-defence beyond a reasonable doubt lies on the prosecution once the defence has been raised. If the prosecution fails to displace the defence, the accused must be acquitted.
THE TRIAL STAGE: PROSECUTION'S CASE
The Burden and Standard of Proof
The prosecution bears the legal burden of proving the accused's guilt beyond a reasonable doubt. This is a fundamental principle enshrined in Section 24(3)(a) of the 1997 Constitution of The Gambia, which presumes every accused person innocent until proved guilty.
To secure a conviction for murder, the prosecution must prove the following elements beyond a reasonable doubt:
That the accused caused the death of the late Yunusa Mbaye;
That the death was caused by an unlawful act or omission;
That the accused acted with malice aforethought as defined in Section 157 of the Criminal Offences Act, 2025.
The Prosecution's Allegation
The prosecution will allege that the accused, with malice aforethought, used a broken bottle and stabbed the victim at the neck, resulting in his death. The prosecution must prove that the accused intended to cause death or grievous harm, or knew that his actions would probably cause death or grievous harm.
List of Exhibits
The prosecution is expected to tender the following exhibits:
Exhibit Description
Exhibit A The broken bottle (murder weapon)
Exhibit B The deceased's blood-stained clothing
Exhibit C The post-mortem report
Exhibit D Photographs of the crime scene and the victim's injuries
Exhibit E The police investigation report
Exhibit F Any other forensic or scientific evidence
The post-mortem report will be crucial in establishing the cause of death.
List of Witnesses
The prosecution is expected to call the following witnesses:
Witness Role
PW1 Eyewitness to the stabbing incident
PW2 Eyewitness to the stabbing incident
PW3 The police officer who arrested the accused
PW4 The investigating police officer
PW5 The scene-of-crime officer
PW6 The pathologist who conducted the post-mortem examination
PW7 Any other relevant witness
Under Section 117 of the Criminal Procedure Code, the court possesses broad authority to summon any competent person to testify.
Legal Framework for the Prosecution
The prosecution will rely on:
The Criminal Offences Act, 2025 – particularly Sections 155 (definition of murder) and 157 (malice aforethought);
The Criminal Procedure Code – governing trial procedure, admissibility of evidence, and examination of witnesses;
The 1997 Constitution of The Gambia – ensuring the accused's fair trial rights are observed.
THE DEFENCE COUNSEL'S ROLE
The defence counsel will:
Challenge the prosecution's evidence through cross-examination of prosecution witnesses, particularly regarding the element of malice aforethought;
Lead evidence in support of the defences of infirmity of mind and self-defence;
Call expert witnesses (e.g., psychiatrists) to establish the accused's mental state at the time of the offence;
Make legal submissions on the insufficiency of the prosecution's evidence to prove the case beyond a reasonable doubt;
Apply for bail pending the hearing and determination of the case.
BAIL APPLICATION
Constitutional Right to Liberty
Section 19(1) of the 1997 Constitution provides that:
"Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention."
Discretionary Nature of Bail in Murder Cases
Bail in murder cases is governed by Section 99 of the Criminal Procedure Code, which provides that bail is at the discretion of the court. However, for offences punishable with death or imprisonment for life (such as murder under Section 156 of the Criminal Offences Act, 2025), bail is not a right but a privilege exercisable at the court's discretion.
Factors the Court Will Consider
In exercising its discretion, the court will consider:
Whether the accused is likely to abscond or fail to appear for trial;
Whether the accused is likely to interfere with witnesses or tamper with evidence;
The nature and gravity of the offence (murder being the most serious offence);
The strength of the prosecution's case;
The accused's character, antecedents, and community ties;
The accused's health condition and the conditions of detention;
The availability of reliable sureties.
The State's Position
The State will likely oppose bail on the grounds that the accused is charged with an offence punishable by life imprisonment, and that the interests of justice require that the accused remains in custody pending trial.
CONSTITUTIONAL AND STATUTORY FRAMEWORK
The 1997 Constitution of The Gambia
The following constitutional provisions are relevant:
Section Provision
Section 19(1) Right to liberty and security of person
Section 19(5) Right to be informed of the reason for arrest
Section 24(3)(a) Presumption of innocence until proven guilty
Section 24(3)(d) Right to defend oneself in person or by legal representative
Section 24(5) Right to legal aid at State expense for offences punishable by death or life imprisonment
The Criminal Offences Act, 2025
Section Provision
Section 155 Definition of murder
Section 156 Punishment of murder (life imprisonment)
Section 157 Definition of malice aforethought
Section 158-159 Provocation (reducing murder to manslaughter)
The Criminal Procedure Code
Section Provision
Section 99 Discretionary power of court to grant bail
Section 117 Power to summon witnesses
Section 241-242 Right to cross-examine and call additional evidence
