Transparency of the Regulatory System
The GOTG uses transparent policies and effective laws to foster competition on a non-discriminatory basis to establish “clear rules of the game.” The Gambia’s legal, regulatory, and accounting systems are transparent and consistent with international norms. A Competition Act was enacted in 2007 and a Competition Commission was established in 2009. The Act mandates the Commission to advocate for competition in The Gambia; and to determine and impose penalties or appropriate remedies to ensure businesses comply with prohibited restrictive practices, and monitor compliance, among other things.
The Public Utilities Regulatory Authority (PURA) regulates telecommunications and broadcasting, water and sewage, transport and electricity. The Gambia Competition and Consumer Protection Commission (GCCP) is a commercial watchdog that ensures the protection of consumers from unfair and misleading market practices, and administers the prohibition of illegal business practices. These laws are available to the general public.
There are no informal regulatory processes that are managed by nongovernmental organizations or private sector associations. Rule-making and regulatory authority exists with the President, his cabinet of Ministers, and the committee members under the National Assembly of The Gambia, and various government parastatals.
The accounting, legal, and regulatory procedural systems of The Gambia are consistent with international norms. Draft bills or regulations are made available to the public for commenting through public meetings and targeted outreach to stakeholders, such as business associations or other groups. This practice is in line with the U.S. federal notice and comment procedures, and applies to investment laws and regulations in The Gambia.
There is no centralized online location where key regulatory actions or their summaries are published. A contract was concluded with LexisNexis in 2009 for the publication of the entire country’s legislation; however access is not free of charge. The nature of the content is unknown because it is not publically available.
There is no specialized government body tasked with reviewing and monitoring regulatory impact assessments conducted by other individual agencies or government bodies. No new regulatory system reforms have been announced since the last ICS report, but regulatory reform efforts announced in prior years are being implemented – the Investment Policy Plan of The Gambia is still in the draft stage. Regulations are developed internally by Ministries, Departments and Agencies of The Government of The Gambia. A Bill or motion may be introduced in the National Assembly by a member of the cabinet or by a member of the National Assembly and the National Assembly gives consideration to Bills and motions introduced.
According to the Constitution of The Gambia “Where a bill passed by the National Assembly is presented to the President for his or her assent, the President shall, within thirty days, assent to the Bill or return it to the National Assembly with the request that the National Assembly reconsiders the Bill” and if that is the case, “the President shall state the reasons for the request and any recommendations for amendment of the Bill.” A bill which has been duly passed by the National Assembly and assented to by the President shall become law as an Act of the National Assembly and the words of enactment shall be, “Enacted by the President and the National Assembly.” When a bill is introduced into the National Assembly, it may be allocated to an appropriate committee for examination, and a report made thereon to the National Assembly.
The judicial power of The Gambia is vested in the courts and shall be exercised by them according to the respective jurisdictions conferred by an Act of the National Assembly. There are two types of courts in The Gambia, the Superior Courts (Supreme Court, the Court of Appeal, the High Court, and the Special Criminal Court) and the Magistrates Court, which include the Cadi Court, District Tribunals, and such lower courts and tribunals as may be established by an Act of the National Assembly.
Regulations are not reviewed on the basis of scientific or data-driven assessments. There are no known scientific studies or quantitative analysis conducted on the impact of regulations made publicly available for comment, but there is a public agency, The Gambia Bureau of Statistics, that does develop data based on enacted legislation. Public comments received by regulators are not made public.
International Regulatory Considerations
The Gambia is a member of ECOWAS, and as such, is a signatory to the 1975 ECOWAS Treaty, which harmonizes investment rules. In cases of investor-state and state-state disputes, the parties can refer their cases to a national court or tribunal or, in the case of disagreement, to the ECOWAS Court of Justice. The ECOWAS Supplementary Acts are passed to supplement the ECOWAS Treaty. These Acts are binding on Member States and the institutions of the ECOWAS Community. The Council of Ministers enacts Regulations and Directives and issues Decisions and Recommendations. Regulations have general application and all their provisions are enforceable and directly applicable in Member States. Therefore, the ECOWAS regional regulatory system has more authority than the national regulatory system of The Gambia.
The international norms and standards of the United Kingdom are referenced and incorporated into The Gambia’s regulatory system. The Gambia has its own regulatory system, which it designs with stakeholders from the international community of NGOs, but international norms or standards referenced or incorporated into the country’s regulatory system are often based on the UK system of regulations.
The Gambia is also a member of the World Trade Organization (WTO). The government does not notify the WTO Committee on Technical Barriers to Trade (TBT) of all draft technical regulations. However, draft technical regulations are available to relevant stakeholders, like the WTO Committee on Technical Barriers to Trade (TBT), if requested.
Legal System and Judicial Independence
The Gambia’s legal system is based on English common law, and there is a legal framework for enforcing property and contractual rights in courts. The Gambia does not have a written commercial and/or contractual law as its legal system is based on Common Law. The Gambia has 8 specialized courts, including a Commercial Court and Labor and Industrial tribunal Court, but not a civil court.
In principle, the judicial system is independent of the executive branch, but there were incidents in the recent past in which the executive interfered in judicial matters. The judicial process is, however, procedurally competent, fair, and reliable, and is expected to become more so under the new administration as the country re-establishes adherence to the rule of law.
Regulatory or enforcement actions are appealable. Appeals against regulations or enforcement actions may be adjudicated with the lower courts, the High Court, and the Supreme Court, which is the highest court of appeal in the country.
Laws and Regulations on Foreign Direct Investment
The legal and regulatory framework is generally open to FDI. The investment laws and regulations of The Gambia apply equally to local and foreign investors. The GOTG has made efforts to attract foreign investment by opening all but a few sectors to investment, including defense. However, several factors generate uncertainty and deter investment. These include unclear provisions of some of the laws related to investment, such as competition, labor and corruption, and, in some instances, regulations do not exist to implement the laws effectively. Additionally, the institutions mandated to implement these laws face insufficient financial and human resources.
For information on the laws, rules, procedures and reporting required, foreign investors can visit the website of the Gambia Investment and Export Promotion Agency (GIEPA): www.giepa.gm . GIEPA is a government agency set up to promote investment, export, and entrepreneurship development.
Potential investors to The Gambia can also visit The Gambia Competition and Consumer Protection Commission (GCCPC) website to access laws and rules, procedures for investors interested in The Gambia. These laws are available to the general public via: www.gcc.gm .
No major investment related laws/ regulations, and judicial decisions came out within the past year.
Competition and Anti-Trust Laws
The Gambia Competition and Consumer Protection Commission (GCCP) is a commercial watchdog that reviews transactions for competition-related concerns and ensures the protection of consumers from unfair and misleading market practices, and administers the prohibition of illegal business practices. No significant competition cases have been reported over the past year.
Expropriation and Compensation
The Gambian Constitution of 1997 provides the legal framework for the protection of private ownership of property and only provides for compulsory acquisition by the state if this is found to be necessary for defense, public safety, public order, public morality, public health, town, and country planning.
There is a history of expropriations in The Gambia. During President Jammeh’s 22 years in office, state paramilitary officials were known to arrive unannounced on private property and tear down any standing structures on the property in question. Under Jammeh, the GOTG widely ignored its responsibility to offer compensation in cases of expropriation. There is widespread speculation that former President Jammeh benefitted personally from these land grabs.
Both the Constitution and the Compulsory Acquisition Act require the state to effect adequate and prompt compensation in such cases. According to local media reports, the provision has generally been respected, but there have been cases where the government ignored court injunctions and tore down private property.
In April 2017, the GOTG expropriated the Alliance for Patriotic Reorientation and Construction’s (APRC) political bureau in Kanifing South on the grounds that the previous administration had unlawfully seized the property and failed to pay rent for the building for many years. The building had never legally belonged to the APRC.
In January 2014, the Government of The Gambia terminated the petroleum exploration, development and production licenses awarded to three oil companies – African Petroleum, Buried Hill, and Oranto. A statement from the Office of the President said the companies concerned had failed to meet their licensing obligations. The statement said the government would not allow companies “to acquire licenses only to keep them for speculation.” However, in November 2014, the government announced that it had reinstated the license of African Petroleum after a commitment by the company to drill its first well by September 1, 2016. In 2015, African Petroleum discontinued two ICSID claims against the Government of The Gambia after its licenses were reinstated.
In April 2011, the Gambian government announced it had taken control of all Libyan assets in the country, which included a number of hotels and an amusement park in reaction to the crisis in Libya. In May of the same year, a high court judge ruled that the Gambian government could take control of the Libyan assets until a United Nations-backed political force emerged from the crisis. There were no further statements on the status of the properties, even after the Transitional National Council assumed power in Libya.
In February 2008, the Government of The Gambia announced it had cancelled the license it granted to an Australian mining company in December 2005 to extract and process heavy mineral sands containing zircon, ilmenite, and rutile. The decision to cancel the company’s mining license came nearly a month after the government gave it a 24-hour ultimatum to provide information about the type and quantity of minerals it had mined and the international value of tonnage already exported. The deadline was later extended for two weeks and after it elapsed, the authorities arrested the company manager, who was charged with economic crimes. The trial did not continue after the manager jumped bail and left the country. The company filed a $31 million claim against the Government of the Gambia in ICSID in 2009. In January 2014, The Gambia’s Special Criminal Court delivered a judgment in the government’s case against the company and its manager, and ordered it to pay USD 200 million. According to the judgement if the company defaults, it will forfeit all of its machines and other assets to the state. In July 2015, the ICSID found in favor of the company and awarded it $23 million in damages, including legal costs. The Jammeh government did not comply with the ruling, maintaining its history of delaying or not complying with compensation rulings.
In the above cases, claimants alleged a lack of due process and compensation.
ICSID Convention and New York Convention
The Gambia is a member of the International Center for the Settlement of Investment Disputes (ICSID), but there is no specific legislation providing for enforcement of ICSID awards. There are no known cases of foreign courts rendering judgments affecting the government.
The Gambia is not a signatory to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.
Investor-State Dispute Settlement
The Gambia is a signatory to the 1975 ECOWAS Treaty that was revised in 1993 toward the establishment of a Community Investment Code to harmonize investment rules. In cases of investor-state and state-state disputes, the parties can refer their cases to a national court or tribunal or, in the case of disagreement, to the ECOWAS Court of Justice.
The Gambia does not have a BIT or FTA with the United States.
Over the past 10 years, there has been only one trade dispute involving a U.S. person or other foreign investor. In June 2013, the government announced a ban on the importation of frozen poultry parts, which constituted the largest U.S. export to The Gambia, worth over USD 7 million a year. The ban was lifted in November 2013, but a statement issued by the Ministry of Trade imposed a new condition that all shipments of poultry products entering the country required Societe Generale de Surveillance (SGS) certification that they are hormone-free. This trade issue was resolved in early 2014. Later that year, in October, the government banned the importation of beef offal (liver and kidney) due to concerns over the manner in which it was handled and sold to the public. There was no distinction in the origins of these products but a significant amount of these imports come from the United States. The ban was lifted in December 2014.
Local courts do recognize and enforce foreign arbitral awards issued against the government. However, due to executive interference in previous years, local courts were not able to enforce foreign arbitral awards issued against the government. The current government is expected to recognize and enforce foreign arbitral awards issued against it.
The GOTG has taken extrajudicial action against foreign investors in the past. The last major dispute with foreign investors was with the Swiss group Alimenta over the assets of The Gambia Groundnut Corporation in 1998. This groundnut processing plant at Denton Bridge is the biggest industrial complex in the country, and its hostile takeover by the government in 1999 sparked a protracted legal battle. The government eventually settled out of court and paid Alimenta USD 11.2 million compensation; Alimenta discontinued the claim it had filed with ICSID.
International Commercial Arbitration and Foreign Courts
The Gambia is a member of the International Center for the Settlement of Investment Disputes (ICSID), but there is no specific legislation providing for enforcement of ICSID awards. However, there is an Alternative Dispute Resolution (ADR) mechanism as a means for settling disputes between private parties. The law creating the ADR mechanism was enacted in 2005 and the ADR Secretariat became fully operational in 2008.
Arbitration is governed by the Alternative Dispute Resolution Act of 2005, and is generally based on the UNCITRAL Model Law, with some provisions adapted from the UNCITRAL Rules. The Gambian Chamber of Commerce and Industry (GCCI) is currently engaged in setting up a Dispute Resolution Center.
Local courts recognize, and can enforce foreign arbitral awards; however executive directives and interference prevented them from enforcing those awards in the past. Reforms by the current political administration are expected to make it easier for these local courts to enforce foreign arbitral awards if the need arises.
Information on the percentage of cases that were ruled in the favor of SOEs is not available. There have been reports of complaints about the court processes which, during former President Jammeh’s regime, tended to overwhelmingly rule in favor of the GOTG.
Bankruptcy is covered by the Bankruptcy and Insolvency Act of 1992. Creditors, equity shareholders, and holders of other financial contracts may file for both liquidation and reorganization. Bankruptcy is not criminalized in The Gambia.