Dear Editor,
Today’s judgment of the Supreme Court in the matter concerning the former Auditor General, Modou Ceesay, will undoubtedly become one of the most significant constitutional decisions in our democratic history.
The Court deserves recognition for affirming a principle that lies at the heart of every constitutional democracy: no President is above the Constitution. By unanimously declaring that the removal of the Auditor General was unconstitutional, unlawful, null and void, the Supreme Court reaffirmed that the security of tenure enjoyed by independent constitutional office holders is not a privilege granted by the Executive but a protection guaranteed by the Constitution itself.
That declaration is a victory not merely for Modou Ceesay. It is a victory for constitutionalism, the rule of law, and every Gambian who believes that public institutions must remain independent of political interference.
Yet constitutional adjudication does not end with identifying a wrong. It must also ask a second and equally important question: How should that wrong be remedied?
This is where today’s judgment invites serious constitutional reflection.
The Supreme Court held that the removal of the Auditor General was unlawful and had no constitutional foundation. At the same time, however, it declined to restore the constitutional position that existed before that unlawful act. Instead, it allowed the appointment of the current Auditor General to remain while awarding compensation to the former office holder.
This raises a constitutional question that deserves thoughtful national discussion.
If an action is declared null and void because it violates the Constitution, can the legal consequences flowing from that unconstitutional act continue to stand? If the Constitution was violated in removing an independent office holder, should the Court not restore the constitutional order rather than merely compensate the victim?
These are not political questions. They are constitutional ones.
Courts around the world frequently balance competing constitutional values. They consider legality alongside public interest, institutional stability, and the practical consequences of their decisions. That judicial discretion is an important feature of constitutional justice.
However, the exercise of that discretion must always strengthen, not weaken, the supremacy of the Constitution.
One aspect of the judgment deserves particular reflection. The Court observed that reinstatement would not be in the public interest because the relationship between the Executive and the former Auditor General had irretrievably broken down.
Respectfully, this reasoning presents an important constitutional concern.
Independent constitutional offices were deliberately created to function even when their relationship with the Executive is strained. Their very purpose is to hold governments accountable without fear or favour. If an unlawful removal itself creates hostility between an office holder and the Executive, care must be taken to ensure that such hostility does not become a reason to deny the full constitutional remedy. Otherwise, future governments may conclude that constitutional violations can ultimately be cured through compensation rather than by restoring the rule of law.
The Constitution must never create incentives for unconstitutional conduct.
This discussion is not about personalities. It is not about whether one individual should occupy public office. It is about preserving the institutional integrity of constitutional offices for generations to come.
The Office of the Auditor General belongs neither to the President nor to its occupant. It belongs to the people of The Gambia. Its independence exists to protect taxpayers, safeguard public finances, and ensure accountability in government. Every constitutional interpretation concerning that office must therefore strengthen its independence rather than merely acknowledge it.
The strength of a Supreme Court is not measured by whether every citizen agrees with its judgments. Reasonable lawyers will always disagree. Its authority is measured by the coherence of its constitutional reasoning, the consistency of its principles, and its unwavering commitment to protecting the Constitution even when doing so is inconvenient.
No apex court is infallible. The greatest constitutional courts in the world have, on numerous occasions, revisited earlier decisions when later reflection demonstrated that constitutional principles required a different approach. Their willingness to correct constitutional doctrine has strengthened rather than diminished public confidence in the judiciary.
Finality is essential in litigation. But constitutional legitimacy is built on something greater than finality. It is built on fidelity to the Constitution itself.
This moment therefore presents an opportunity, not for confrontation between the Judiciary and the public, but for deeper constitutional dialogue.
The Supreme Court has courageously reaffirmed that the Executive acted unlawfully. That important declaration deserves universal commendation.
The next challenge for our constitutional democracy is to continue developing a remedial jurisprudence that ensures constitutional violations are not only identified, but fully corrected whenever justice and the Constitution require it.
As I have consistently argued, strong democracies are not built by strong individuals. They are built by strong institutions.
The future of The Gambia depends on institutions that are independent enough to restrain executive power, courageous enough to defend the Constitution, and principled enough to ensure that constitutional wrongs are never allowed to become constitutional precedents.
That is how public confidence in the Judiciary is preserved.
That is how constitutional democracy matures.
And that is how the Constitution remains the supreme law of the Republic, not only in declaration, but in practical effect.
Amadou Jaiteh
Leader of PROGRESS
