In a seminal judgment clarifying the constitutional protections for independent oversight offices, The Gambia’s Supreme Court has ruled that the police-led forceful removal of former Auditor General Modou Ceesay was unconstitutional.
The apex court declared the actions of the Inspector General of Police and state authorities a clear violation of Section 158 of the 1997 Constitution, which strictly limits the removal of the Auditor General. While declining reinstatement, the Court ordered full financial remedies and vindicatory damages, underscoring the judiciary’s role in enforcing constitutional boundaries on executive power.
Delivered on 7 July 2026 by a full bench in Modou Ceesay v Attorney General & Others (SC Civil Suit No. 002/2025), the unanimous decision, authored by Justice O.M.M. Njie, JSC, with concurrence from Chief Justice Hassan B. Jallow and Justices C.S. Jallow, A. Bah, and E.F. Mbai, stands as a landmark pronouncement on tenure security for constitutional office holders.
Core Constitutional Issues at the Heart of the Ruling
The Supreme Court anchored its decision on several interlocking provisions of the Constitution that establish both the independence and the protected tenure of the Auditor General.
Exclusive Jurisdiction and Enforcement Powers
The Court first affirmed its authority under Section 127(1)(a) to interpret and enforce constitutional provisions (outside fundamental rights chapters). It invoked Section 5(1)(b), which allows any person alleging a constitutional violation to seek a declaration, and Section 5(2)–(3), empowering the Court to issue appropriate orders and directions to give effect to such declarations. These provisions framed the entire proceedings as a pure constitutional interpretation matter.
Protected Tenure under Section 158
The cornerstone of the judgment was Section 158. Subsection (4) provides that the Auditor General vacates office only upon reaching compulsory retirement age or upon lawful termination by the President. Subsection (5) is more restrictive: removal is permitted solely for “inability to perform the functions of his or her office (whether from infirmity of mind or body or from any other cause) or for misbehavior or incompetence.”
The Court emphatically held that none of these grounds existed in Ceesay’s case. No allegation of incapacity, misbehavior, or incompetence was made. Instead, police officers physically evicted him from his office on 15 September 2025 on executive instructions — an action the Court ruled amounted to an unconstitutional shortcut.
Formal Requirements for Resignation — Section 228
A central constitutional issue was whether Ceesay had relinquished his office by allegedly accepting a ministerial appointment. The Court ruled he had not.
Section 228(1) mandates that resignation from any constitutional office must be “in writing under his or her hand addressed to the person or authority by whom he or she was appointed.” The President appoints the Auditor General under Section 158(2) after consultation with the Public Service Commission. Since Ceesay never submitted a written resignation to the President, he remained the lawful holder of the office.
The Court further rejected the notion of implied relinquishment through verbal acceptance or absence. Evidence showed Ceesay reported for duty the day after the State House announcement and continued asserting his position.
Independence of the Office
The ruling reinforced the broader constitutional architecture protecting the National Audit Office. Section 160 outlines the Auditor General’s functions in ensuring accountability of public funds. The National Audit Office Act 2015 (Sections 3(2) and 4) further entrenches operational independence from direction or control by any person or authority. The Court noted that using police force to effect removal fundamentally undermines this independence.
Separation of Powers and Judicial Remedies
The judgment extensively discussed the limits of executive action and the judiciary’s corrective role. Citing Privy Council precedents, including McLaughlin v Governor of the Cayman Islands, the Court affirmed that an unlawful removal is null and void. However, under Section 5(3), remedies remain discretionary and must take into account the public interest, the separation of powers, and practical realities.
In this case, the Court weighed the de facto occupation of the office by Cherno Amadou Sowe for nearly ten months, Ceesay’s contributory conduct (initial verbal acceptance), and potential disruption to the sensitive national function of auditing public accounts. It therefore declined reinstatement but crafted alternative remedies to vindicate the constitutional violation.
The Factual Matrix and Constitutional Application
The Court resolved conflicting evidence by finding that Ceesay had verbally accepted but later declined the ministerial offer, and that a formal written acceptance — required by the appointment letter — was never given. His subsequent formal rejection letter and continued performance of duties meant he never vacated the Auditor General position under constitutional rules.
The forceful entry by police, the confrontation in the presence of media and staff, and the physical escort out of the premises were deemed direct violations of Section 158(5). The absence of testimony from the Inspector General or the commanding officer strengthened the Plaintiff’s account.
Remedies Ordered
To give full effect to its constitutional declaration, the Court ordered:
- Payment of all arrears of salary and allowances from 15 September 2025 to judgment date, with 10% interest.
- Full emoluments for the remainder of Ceesay’s nine-year term (or until retirement age), as provided under Section 15(1) of the National Audit Office Act.
- All gratuity and pension entitlements.
- D4 million in vindicatory damages against the Attorney General and Inspector General of Police to mark the gravity of the breach and deter future violations.
The Court described the damages as necessary because monetary emoluments alone would not sufficiently vindicate the infringement of a constitutional office protected by explicit tenure safeguards.
Significance of the Judgment
This decision represents the Supreme Court’s strongest articulation yet of the inviolability of constitutional tenure protections for independent offices. It establishes clear precedents that:
- Verbal or informal arrangements cannot override written constitutional requirements for resignation or removal.
- Police power cannot be deployed to bypass statutory and constitutional procedures.
- Courts will scrutinize executive actions affecting Chapter VIII institutions (Finance and Audit) with strict fidelity to the text.
- Remedies for constitutional violations must balance the vindication of rights with institutional functionality and the public interest.
By invoking Sections 5, 158, 228, and related provisions in a cohesive framework, the judgment strengthens the rule of law and the doctrine of constitutional supremacy in The Gambia. It serves as a bulwark against arbitrary interference in institutions designed to promote transparency and accountability.
