By Isatou Sarr
The Attorney General’s Chambers has asked the Supreme Court to recuse four justices, including Chief Justice Edrissa M.O. Faal, from hearing a constitutional challenge to Faal’s appointment as Chief Justice.
The application was filed in a case brought by the Gambia Bar Association through its trustees, Neneh M.C. Cham, Abdoulie Fatty and Nyima Samateh, against the Attorney General and Faal.
The Bar Association is challenging the legality of Faal’s appointment, arguing that he does not meet the qualifications prescribed under Section 139 of the 1997 Constitution.
It is asking the Supreme Court to declare the appointment unconstitutional, null and void, and order Faal to refund any money paid to him as a result of the appointment.
In a motion filed on behalf of the defendants, Principal State Counsel Patrick Gomez asked the court to recuse Chief Justice Faal, Justice Cherno S. Jallow, Justice Omar M.M. Njie and Justice Awa Bah.
The state advanced separate grounds for seeking the recusal of each justice.
Regarding Chief Justice Faal, the state argued that he is a named defendant and that his appointment is directly challenged in the case.
It therefore contends that he has a direct interest in the outcome and should not preside over proceedings concerning the validity of his own appointment.
The state also sought the recusal of Justice Jallow, citing his seniority on the Supreme Court.
According to the affidavit supporting the motion, Jallow is among the most senior sitting justices and could potentially benefit if Faal’s appointment were set aside.
The state argues that this creates an interest in the outcome of the case.
In relation to Justice Njie, the affidavit states that he participated in Judicial Service Commission meetings on 9 June and 1 July 2026, during which the commission considered Faal’s qualifications and recommended his appointment.
The state argues that Njie’s participation could create a conflict because the Supreme Court is now being asked to determine the constitutional validity of an appointment he helped recommend.
The affidavit identifies the Judicial Service Commission at the time as comprising then-Chief Justice Hassan B. Jallow as chair, Justice Omar M.M. Njie, Solicitor General and Legal Secretary Hussein Thomasi, former Secretary General Sulayman Samba, Gambia Bar Association representative Mary A. Samba Jallow, and Judicial Secretary Abdou Conteh.
The state also sought the recusal of Justice Bah, citing her appointment to the ECOWAS Community Court of Justice for the 2026-2030 term and her expected assumption of duties there in October 2026.
According to the motion, her forthcoming appointment creates a conflict of interest.
The state has further asked the Supreme Court to direct that the case be heard by a panel excluding all four justices.
The application is supported by an affidavit sworn by Fatou Waggeh, a legal clerk at the Attorney General’s Chambers.
The affidavit refers to minutes of the Judicial Service Commission meetings of 9 June and 1 July and the final communiqué of the 69th Ordinary Session of the ECOWAS Authority of Heads of State and Government, which confirmed Justice Bah’s appointment to the regional court.
The Gambia Bar Association filed an affidavit opposing parts of the recusal application on 9 September through its president, Neneh M.C. Cham.
The association does not oppose the recusal of Chief Justice Faal. It also acknowledges Justice Njie’s membership of the Judicial Service Commission, while asking the court to strike out part of the state’s argument concerning him.
The association, however, opposes the proposed recusals of Justices Jallow and Bah.
On Justice Jallow, the Bar Association argues that seniority alone does not establish that he would become Chief Justice if Faal’s appointment were invalidated.
It noted that Faal himself was appointed from outside the existing ranks of Supreme Court justices.
The association further argues that neither Justice Jallow’s seniority nor Justice Bah’s appointment to the ECOWAS court establishes a personal or financial interest, bias or conflict sufficient to warrant recusal.
The Bar Association has also filed a preliminary objection to the state’s motion, arguing that the request for the Supreme Court to determine in advance how a substitute panel should be constituted is premature.
It says no panel has yet been constituted, no hearing date has been fixed and no issue concerning quorum has arisen.
On that basis, the association has described that part of the state’s application as an abuse of the court process.
The recusal dispute is one of several preliminary issues surrounding the case.
The state earlier filed a separate preliminary objection on 25 August, challenging the Bar Association’s standing to bring the case and arguing that the reliefs it seeks are not justiciable.
On standing, the state argues that the Bar Association’s trustees are not authorised under the association’s constitution to institute proceedings on its behalf.
The state has asked the Supreme Court to dismiss the case at the preliminary stage on those grounds.
The Bar Association, meanwhile, has sought an accelerated hearing of the substantive case. The state has opposed the request, arguing that such a timetable would unnecessarily limit its opportunity to prepare its defence.
Asked about the next steps in the proceedings, the Registrar of the Supreme Court said the matter would be addressed after the court’s vacation in accordance with the Supreme Court Rules.
