By Sarjo Barrow, Esq.
This is a summary of my longer case commentary, “A Void Removal, an Occupied Chair,” which discusses the Supreme Court’s decision in Modou Ceesay v. Attorney General & Others. If you are interested, you can read the full commentary for free.
In September 2025, the Auditor General of The Gambia was escorted out of his office by police. Nine months later, the Supreme Court ruled that his removal was unlawful, null, and void. Legally, he had never left. Yet, paradoxically, the Court also held that he could not return: someone else would keep the job, and he would receive compensation instead.
Although I disagree with the Court’s remedy on factual and precedent grounds, I encourage everyone to read the judgment carefully. It is rich, and with humility, we can all learn. I did. It revealed something even the advocates missed: If the Executive had followed the proper process for vacating a constitutional office, it would not have sent the police. Section 228(1) requires that a resignation from a constitutional office be in writing.
The Court reaffirmed that constitutional officers may leave only as specifically enumerated in the law or by written resignation. Having declared the removal void, the Court acknowledged that the “natural course of action is reinstatement”—as it had in Jaiteh, where reinstatement was treated as the rule for unlawful removal from constitutional office. However, in Ceesay, the Court leaned on the Privy Council case McLaughlin, emphasizing that remedies in public law are discretionary. This reframed Jaiteh’s rule as a rebuttable presumption: a void removal creates a strong expectation of reinstatement, but that expectation can be displaced by the particular facts of the case.
In principle, this could make Jaiteh and Ceesay look consistent, as both apply the same presumption, and the outcome depends on whether that presumption is rebutted. But in reality, the Court found the presumption rebutted in Ceesay on facts nearly identical to Jaiteh, where it had not. Instead of explaining why the outcome should differ, Ceesay exposes a real inconsistency. The reasons for refusing reinstatement in Ceesay would have applied equally to Jaiteh, yet only one officeholder was restored. This shift puts other independent offices at risk and makes the remedy for future unlawful removals uncertain.
First, some good news. An Auditor General can leave only by retiring, being lawfully removed for cause, or resigning in writing. This principle should apply to other independent agencies to avoid panic. Mr. Ceesay did none of these. He was offered a ministry, agreed briefly, then refused in writing the next morning. An oral agreement could not transfer him; only a signed resignation could remove him. He was still the Auditor General when the police arrived, and forcing him out violates the Constitution. On liability, this is a real win for the rule of law.
The fundamental issue is the remedy. The Court relied on the Privy Council’s decision in McLaughlin, which established that remedies are discretionary, and a void removal does not automatically require reinstatement. Absolutely correct. Yet McLaughlin also holds that a wrongly dismissed officeholder “remains in office” until tenure ends by resignation or lawful dismissal, a position relevant to Mr. Ceesay. The reasons in McLaughlin for denying restoration, like an abolished office or unclear staffing, do not apply here. Thus, while discretion exists, the reasons used against Mr. Ceesay contradict both McLaughlin and the Court’s precedent in Jaiteh.
The Court gave three main reasons for refusing reinstatement, but each falls apart on closer examination. Not every unlawful removal requires reinstatement, but the stated reasons were weak and undermined Jaiteh. A better approach would have been to limit the holding to this case. Since the remedy is discretionary, the Court could have declared reinstatement the default, except that Mr. Ceesay did not seek it, preserving the deterrent effect. Alternatively, the Court could have treated the judgment as regularizing the office from that date, as the Commonwealth recognizes in exceptional cases.
The first reason was his conduct: the Court said his hesitation about the ministry caused the situation. But by its own findings, everything he did was lawful. He was free to decline, as the offer letter stated. Changing your mind about a job you can refuse is not misconduct; it is a constitutional right.
The second reason was the successor’s nine months in office. But Mr. Ceesay sued within three weeks; those months reflected the Court’s delay, not his, yet they counted against him. Nor could he freeze the status quo because the Court stated in Jaiteh that no injunction can lie against the government.
This brings us to the central contradiction. In Jaiteh, the same Court faced almost identical facts: an officeholder was unlawfully removed, and a replacement had already served for eleven months—longer than in Ceesay. In Jaiteh, the Court restored the rightful holder and cautioned that treating constitutional officers as serving “at the pleasure” of the appointing authority would seriously violate the Constitution. Yet six years later, in Ceesay, the Court did the opposite, relying on reasoning it had previously criticized—making the decision difficult to reconcile.
The third reason was the broken relationship between the auditor and the Executive. But that hostility was caused by the unlawful removal itself. If a government can avoid reinstatement by creating conflict, the protection becomes meaningless. An Auditor General’s independence is meant to withstand a tense relationship with the branch he audits; that friction is part of the job, not a reason for disqualification.
One question remains: if Mr. Ceesay never left, how does the current officeholder have a lawful claim to the position? The Court did not address this. The de facto officer doctrine, well established in common law (State v. Carroll, 38 Conn. 449 (1871); Fawdry v. Murfitt ([2002] EWCA Civ 643), would have protected the successor’s actions while making clear his title still needed a lawful basis. The Court left the office in limbo, with one rightful holder on paper and another in the chair. An open question remains whether a subsequent government has a license to fire him on day one.
Why should a non-lawyer care? Because of the message it sends. Reinstatement discourages unlawful removal, but a payout taken from taxpayers, rather than from the officials who broke the law, does not. Now, a government that finds an auditor inconvenient faces a price list instead of a real barrier.
None of this diminishes what the Court got right. Forcing an auditor back into a hostile relationship has real drawbacks. Still, a constitutional guarantee that vanishes when inconvenient is not much of a guarantee. The Court declared Mr. Ceesay the rightful Auditor General and sent him home with a check. The Constitution says he never left, but the judgment allows someone else to stay. This unresolved issue remains for a future court to address. A hallmark for constitutional jurisprudence not limited to The Gambia.
