Administrative Law and Human Rights: Review, Fairness and Remedies
Scope
Administrative law in The Gambia is largely common-law based and applied by the High Court through its supervisory jurisdiction: certiorari, mandamus, prohibition, quo warranto and habeas corpus. The human rights dimension adds Chapter IV of the Constitution, the African Charter on Human and Peoples' Rights, and bodies such as the Ombudsman and the African Commission, which sits in Banjul.
Grounds and procedure
- Illegality (acting outside or misusing statutory power), irrationality (a decision no reasonable body could reach) and procedural impropriety (breach of natural justice) are the classic grounds.
- Natural justice requires a hearing before an adverse decision and an unbiased decision-maker; pecuniary or personal interest disqualifies.
- Legitimate expectation may entitle a person to a hearing or to the promised benefit, but not to frustrate a lawful policy change.
- Leave is required, there are short time limits, and relief is discretionary: the court may refuse if an adequate alternative remedy exists, or if the claimant has delayed.
- Remedies include quashing, ordering performance, prohibiting action, declarations, injunctions and, in human rights claims, compensation.
Worked example
A public officer is dismissed for misconduct after an investigation she never saw and was never asked to answer.
Reasoning: the dismissal breaches audi alteram partem because she was not given the substance of the allegation or a chance to respond. Certiorari lies to quash, and mandamus may compel a proper hearing. The court will still ask whether an internal appeal existed and whether it was adequate; if the appeal procedure itself cures the defect, relief may be refused. Human rights damages are available only where the breach is a constitutional one.
Traps
Treating judicial review as an appeal on the merits; assuming proportionality is always a free-standing ground; missing limitation periods; and ignoring the difference between the African Commission, which requires exhaustion of local remedies, and domestic review.