A constitutional victory without a constitutional remedy, what the Ceesay ruling really means

By Bakary S Sonko

The Supreme Court’s judgment in Modou Ceesay v the Government of The Gambia will be read, correctly, as a rebuke of executive overreach. The Court found that the manner of Mr Ceesay’s removal from the office of Auditor General violated his constitutional rights, a vindication for a public officer who was physically escorted out of the National Audit Office by police after refusing a ministerial appointment he says he never accepted. It is also a vindication, at least in principle, for the doctrine of institutional independence that Sections 158 to 160 of the 1997 Constitution and the National Audit Office Act of 2015 were designed to protect.

But the remainder of the ruling deserves as much scrutiny as the headline finding. The Court declined to reinstate Mr Ceesay. Instead, it ordered that he continue drawing his salary and allowances until his scheduled retirement in 2035, alongside a one-off award of D4 million in damages, payable within 60 days. Read together, these three elements which are finding of unconstitutionality, a refusal to restore the office, and a decade-long pay-without-portfolio arrangement, produce an outcome that is legally coherent but institutionally uneasy.

Courts across common-law jurisdictions have long distinguished between declaring a wrong and undoing it. Reinstatement to a position of public trust is an equitable remedy, and equitable remedies are discretionary; a court can find a dismissal unlawful while still concluding that forcing an estranged official back into a sensitive oversight post would be unworkable, given the breakdown in relations with the Executive and the practical reality that a successor has been in place for months. Seen this way, the Gambian Supreme Court has done what many constitutional courts do when reinstatement is impractical: it substituted a financial remedy for the practical one.

The difficulty is that the Auditor General is not an ordinary civil servant whose personal compensation is the only thing at stake. The office exists to audit government spending independently of the president who appoints and, evidently, can also effectively remove its holder. By declining to return Mr Ceesay to that chair, even after ruling his removal unconstitutional, the Court has, in effect, allowed the practical outcome the Executive sought (a vacated Audit Office, a compliant successor in place) to stand, while compensating the individual harmed. The institution does not get its independence restored; the man does get his salary.

The order that Mr Ceesay continue receiving his full salary and allowances until 2035, roughly a decade from now is the most unusual feature of the ruling and the one likely to generate the most public debate. It is, functionally, a form of paid non-employment: compensation calibrated not to the harm already suffered but to the entire remaining span of a public career. Whatever the Court’s reasoning, the arrangement invites two uncomfortable questions. First, what does Mr Ceesay owe the state, if anything, in exchange for a decade of salary, is he barred from other public office, free to pursue private work, or expected to remain nominally at the disposal of government? Second, what precedent does this set for future disputes between the Executive and holders of protected offices? If the practical remedy for an unconstitutional removal is a payout rather than restoration, the deterrent effect on future overreach may be weaker than the judgment’s rhetoric suggests. A future government weighing whether to sideline an inconvenient watchdog now has a rough price tag for doing so.

The additional D4 million in damages, payable within 60 days, is presumably meant to address the manner of the removal, the public, forcible nature of his extraction from the Audit Office, rather than lost income, which the salary order already covers. Taken together, the financial package is generous by the standards of Gambian public litigation, and the 60-day payment window signals that the Court intends the state to treat this as an urgent obligation rather than a symbolic one. Whether the Ministry of Finance meets that deadline will itself be a test of how seriously the Executive accepts the judgment, given its litigation posture throughout, which included arguing that Mr Ceesay had vacated his post voluntarily.

The National Audit Office Act of 2015 was written precisely to prevent a scenario like this one: a president reassigning an inconvenient Auditor General mid-audit, particularly one reportedly resistant to pressure over audits touching the Gambia Revenue Authority, land allocations, and a large disputed government payment. The Supreme Court’s finding of unconstitutionality affirms that the law means what it says. But law without an enforceable structural remedy risks becoming aspirational. Civil society groups and the Gambia Bar Association had called for Mr Ceesay’s reinstatement specifically because they understood that compensation alone does not restore institutional independence, it merely prices the violation.

For Gambia’s broader system of public accountability, the practical lesson of this case may be sobering: the courts will hold the Executive to account after the fact, but they will not necessarily force it to undo what it has already done. That is a meaningful check, but not a complete one. The next Auditor General, and the one after that, will now do their jobs knowing that institutional independence, however well protected on paper, can still be circumvented in practice, and provided the government is prepared to pay for it.

The author is a Gambian researcher and consultant on African governance, International Management and public accountability.