A reflection on constitutional vacancy, the protection of independent constitutional offices, and the consequences of unconstitutional executive action.
By Abdoulie Fatty
The Supreme Court’s decision in Modou Ceesay v Attorney General will, rightly so, be remembered as one of the more important constitutional decisions delivered under the current dispensation. Not because it answered every question before it, but because it answered some while leaving others open. That is not a criticism of the judgment. It is often the nature of constitutional adjudication.
Much of the public discussion has understandably focused on whether Mr. Modou Ceesay ought to have been reinstated as Auditor General. In my respectful view, however, the judgment raises a more fundamental constitutional question. It is that question, rather than the debate over reinstatement, which is likely to shape future constitutional litigation.
I had the privilege of appearing before the Supreme Court in this matter for the amicus curiae. These observations are offered in that same spirit. They are not intended to challenge the Court’s authority or to revisit the dispute between the parties. They are simply an attempt to reflect on the constitutional implications of an important judgment.
There is much in the decision that deserves recognition.
The Court reaffirmed that the office of Auditor General cannot be vacated except in accordance with the Constitution and the National Audit Office Act. By rejecting the State’s contention that Mr. Ceesay had voluntarily vacated office without complying with those constitutional and statutory requirements, the Court reaffirmed a principle that lies at the heart of constitutional government: executive action cannot substitute for constitutional process.
That conclusion is important.
It reinforces the constitutional protection afforded to independent offices whose holders are deliberately insulated from executive control. Security of tenure is not a personal privilege. It is a constitutional guarantee designed to preserve institutional independence. The Constitution protects offices, not personalities.
That protection is no less important for the Auditor General than it is for Judges, the Ombudsman, the Chairperson and Commissioners of the Independent Electoral Commission, members of the National Human Rights Commission and every other office whose independence depends upon constitutional or statutory security of tenure.
It is against that background that, in my view, the more difficult constitutional questions begin.
The Court accepted that Mr. Ceesay formally rejected the President’s offer of ministerial appointment in writing, in accordance with the terms of the offer itself. Equally significant, the State produced no evidence that he resigned from the office of Auditor General. Those findings were central to the Court’s conclusion that the constitutional and statutory requirements for vacating the office had not been satisfied.
If that is so, what follows?
That, it seems to me, is the real constitutional question.
The first issue is whether a constitutionally recognised vacancy ever arose.
The Constitution cannot, at the same time, recognise the continued legal tenure of the holder of a constitutionally protected office while also recognising a vacancy in that same office, unless the Constitution itself provides for such a result. It is this constitutional tension which, in my respectful opinion, lies at the heart of the remedial questions raised by this judgment.
The authority to appoint a successor to a constitutional office presupposes the existence of a vacancy recognised by the Constitution. Such a vacancy cannot arise simply because the Executive assumes that it exists or because another person subsequently assumes the functions of the office. It must arise in the manner prescribed by the Constitution itself.
If, as the Court accepted, Mr. Ceesay formally rejected the ministerial appointment, did not resign from office and did not otherwise relinquish that office in accordance with the Constitution and the National Audit Office Act, it is legitimate to ask whether the constitutional precondition for appointing a successor had ever come into existence.
That observation is not directed at the present Auditor General. It is not about his integrity, competence or performance. Constitutional legitimacy does not depend upon the qualities of the individual appointed. It depends upon whether constitutional power has been exercised in the manner prescribed by the Constitution.
There is another aspect of the judgment that, with respect, deserves closer attention.
The Court regarded the deterioration in the relationship between Mr. Ceesay and the Executive as one of the factors relevant to the remedy it ultimately adopted. That is an understandable consideration. Constitutional issues cannot ignore practical realities or the public interest.
The chronology accepted by the Court, however, is important.
It is a fact that Mr. Ceesay was invited to the Office of the President because the President considered him to be performing exceptionally well as Auditor General and wished to appoint him to Cabinet. There was therefore no suggestion that relations between Mr. Ceesay and the Executive had broken down irreparably before that meeting.
The relationship deteriorated only after Mr. Ceesay declined the ministerial appointment, maintained that he wished to continue serving as Auditor General and was thereafter removed from office. It was that removal which the Court ultimately held to be unconstitutional.
That sequence of events gives rise to a question which, in my respectful opinion, deserves further consideration.
If the deterioration in relations followed the very actions subsequently declared unconstitutional, should that consequence itself become relevant in determining the constitutional remedy?
Put another way, should circumstances produced by an unconstitutional act influence the legal consequences flowing from that very illegal act?
I do not pretend that the answer is straightforward. But the question, it seems to me, is unavoidable in constitutional terms.
The judgment also invites comparison with the Supreme Court’s earlier decision in Ya Kumba Jaiteh v The Clerk of the National Assembly. In that case, the declaration of constitutional invalidity restored the constitutional position that existed before the impugned act. In Modou Ceesay, the Court adopted a different remedial approach.
Whether that difference is explained by the particular facts of the two cases, or whether it reflects an evolving approach to constitutional remedies, is something that future cases may have occasion to clarify. Constitutional law has always developed incrementally. Today’s unanswered question often becomes tomorrow’s settled principle.
Across the Commonwealth, courts have recognised that declaring executive conduct unconstitutional is only part of the judicial task. The more difficult question is often what legal consequences should follow from that declaration. Different jurisdictions have answered that question differently, balancing constitutional principle, institutional stability and the public interest in different ways. It is within that broader constitutional conversation that, in my respectful view, Modou Ceesay should be understood.
Here, the intersection between institutional independence and insulation from interference, on the one hand, and pubic interest in ensuring that is achieved within the constitutional governance system, on the other hand, is another valid consideration. Public interest requires that the security of tenure of constitutional and independent statutory offices are thoroughly protected. This ensures citizens have faith and confidence in the system.
Constitutional supremacy is not vindicated merely because a court declares executive action unlawful. It is equally concerned with the consequences that follow from that declaration. Judicial remedies therefore do more than vindicate the rights of successful litigants. They preserve public confidence that constitutional guarantees are capable of practical enforcement. In that sense, the question of remedy is often as constitutionally significant as the question of liability itself.
These reflections are offered respectfully. They are intended to continue the constitutional conversation. Courts determine disputes. Lawyers and scholars examine the constitutional principles that emerge from those decisions. Both perform different functions, but both ultimately serve the Constitution.
Whether one agrees or disagrees with the remedy adopted by the Court is, in the end, less important than the constitutional questions the judgment has brought into focus.
When does a constitutionally protected office become vacant?
What legal consequences follow where a court concludes that the constitutional requirements for vacating that office were never satisfied?
Can circumstances arising from an unconstitutional act properly influence the remedy granted for that very constitutional violation?
Those questions are unlikely to remain confined to the office of Auditor General. Tomorrow they may arise in relation to a Judge, the Ombudsman, the Independent Electoral Commission, the National Human Rights Commission or any other institution whose independence depends upon constitutional security of tenure.
This case is over. The constitutional questions it raises are not.
Whether future courts reaffirm, distinguish or refine the remedial approach adopted in Modou Ceesay is a matter for another day. What seems clear is that the issues raised by this judgment about constitutional vacancy, security of tenure and the consequences of unconstitutional executive action will remain part of our constitutional discourse for years to come.
For me, that is the judgment’s enduring significance.
