The Supreme Court of The Gambia has delivered one of the most significant constitutional judgments in recent years, ruling that former Auditor General Modou Ceesay was unlawfully removed from office but refusing to restore him to the position because, in the justices' view, bringing him back would no longer serve the public interest.
In a unanimous judgment delivered on Tuesday by Justice O.M.M. Njie and endorsed by Chief Justice Hassan B. Jallow, Justice Cherno Sulayman Jallow, Justice Awa Bah and Justice Edrisa Fafa M'Bai, the Supreme Court concluded that police officers violated the Constitution when they forcefully removed Ceesay from the National Audit Office in September 2025. Yet despite declaring those actions unconstitutional, the Court declined what it described as the "natural course of action", reinstating him as Auditor General.
Instead, the Court allowed the current Auditor General, Cherno Amadou Sowe, to remain in office, while ordering the Government to compensate Ceesay with his full salary, allowances, gratuity and pension up to the end of his statutory term, together with D4 million in vindicatory damages for the constitutional violation committed against him.
The judgment answers a constitutional question that has lingered since the events of September 2025: What happens when the Government unlawfully removes the holder of a constitutionally protected office, but circumstances have changed so significantly that restoring him could create greater institutional problems than leaving matters as they are?
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The Supreme Court's answer was clear. Although Ceesay remained the lawful holder of the office after rejecting a ministerial appointment, the Court said constitutional remedies are not automatic. Judges must consider the broader public interest before deciding what remedy best protects both the Constitution and the institutions it creates. That reasoning ultimately became the defining feature of the case.
A Constitutional Battle
The dispute began after President Adama Barrow reshuffled his Cabinet on September 10, 2025. According to facts agreed by both parties before the Court, Ceesay, who had been appointed Auditor General in November 2022, was invited to State House, where the President informed him that he intended to appoint him Minister of Trade, Industry, Regional Integration and Employment. The President also told him that he appreciated the work he had done as Auditor General. Both sides also agreed that Ceesay later requested a second meeting with the President on the same day and that the following day Cherno Amadou Sowe visited the National Audit Office seeking a formal handover.
From that point onward, however, the two sides presented different versions of what happened. Ceesay maintained that he never accepted the ministerial appointment. According to his evidence, he thanked the President for considering him, took the appointment letter and promised to reflect before making a decision. After consulting others, he returned to State House later that day and personally informed the President that he wished to decline the offer because he believed remaining Auditor General better suited his experience and professional skills.
He told the Court that even after the President urged him to reconsider, he stood by his decision.
The following morning, September 11, he signed a formal letter rejecting the ministerial appointment and sent it to the Chief of Staff. When Cherno Amadou Sowe later arrived requesting a handover, Ceesay testified that he informed him he had rejected the ministerial appointment, had never resigned as Auditor General and intended to continue performing his constitutional duties. Four days later, events took an extraordinary turn.
The Morning That Changed Everything
On Monday, September 15, 2025, Ceesay reported to work as usual at the National Audit Office. He testified that journalists had gathered outside following widespread reports that he had accepted appointment as Minister of Trade.
To clarify the situation, he convened a meeting in the conference room with members of the media. Before that day, he said, he had already instructed the Communication Unit of the National Audit Office to explain publicly that he had declined the ministerial offer. While addressing journalists, police officers entered the premises.
According to Ceesay's testimony, officers led by one Officer Jawo interrupted the meeting and insisted that he stop speaking and accompany them. When he demanded to know why they had come, Jawo allegedly told him only that he had orders.
Ceesay testified that he then walked into his office, where the officer informed him he had instructions to remove him from office immediately, demanded that he surrender his office keys and official belongings and prepare to hand over his duties. When he again asked whose orders they were acting on, he said no answer was given. Instead, a tense confrontation developed.
Staff members objected to the removal, insisting their Auditor General should not leave. What followed, according to Ceesay, was a physical escort from the building by members of the Gambia Police Force before he sought legal advice from his lawyers. That incident became the foundation of the constitutional case.
The Government Presented a Different Story
The Attorney General and the Inspector General of Police disputed almost every major allegation. Government lawyers argued that Ceesay had verbally accepted appointment as Minister of Trade during his meeting with the President.
According to the defence, he left State House promising to submit a written acceptance, thanked the President for the appointment and even requested prayers for success in his new position.
They further argued that Cherno Amadou Sowe was appointed Auditor General immediately after the President understood that Ceesay had accepted the ministerial appointment, making the succession entirely lawful.
Government witnesses also denied that either the President or the Inspector General of Police ordered Ceesay's forcible removal from office. To support that version, the defence called Alhagie Ousman Ceesay, Chief of Protocol at the Office of the President.
He testified that shortly after the meeting, President Barrow informed him that Modou Ceesay had accepted the ministerial appointment and instructed him to release both the press statement announcing Cabinet changes and Cherno Amadou Sowe's appointment as Auditor General.
The Government also relied on evidence from Wuday Ceesay, a Protocol Officer at State House. She testified that after emerging from his meeting with the President, Ceesay smiled and told her: "Sis, I have been appointed."
According to her testimony, she congratulated him and wished him well in his new position. The conflicting accounts placed before the Supreme Court a fundamental constitutional question.
Did Modou Ceesay legally relinquish the office of Auditor General by accepting a Cabinet appointment, or did he remain Auditor General because he never completed the legal steps required to leave office? The answer to that question would determine not only whether the police acted lawfully on September 15, but also whether one of the country's most important constitutional offices had been unlawfully vacated.
The Supreme Court's answer was both straightforward and nuanced. The justices concluded that Modou Ceesay did, in fact, verbally accept President Adama Barrow's offer to become Minister of Trade on September 10, 2025. But they also held that this verbal acceptance did not amount to a lawful resignation as Auditor General. That distinction ultimately determined the outcome of the case.
After reviewing the testimony of both sides, the Court found that Ceesay initially accepted the ministerial appointment but changed his mind only hours later.
Justice O.M.M. Njie, delivering the unanimous judgment of the five-member panel, carefully examined the events surrounding Ceesay's two visits to State House.
The Court noted that although Ceesay maintained he merely promised to consider the President's offer and later returned to decline it, the surrounding circumstances pointed in a different direction.
Among the factors relied upon was the testimony of State House Protocol Officer Wuday Ceesay, who told the Court that after emerging from the President's office, Modou Ceesay was smiling and told her, "Sis, I have been appointed," to which she replied, "Congratulations bro and may you be blessed with the position." The Court observed that Ceesay never denied knowing the witness, but merely said he could not remember whether she was the one who had ushered him into the President's office.
The justices also attached significance to the fact that Ceesay requested another audience with the President only a few hours after leaving State House.
The appointment letter itself required him to acknowledge acceptance in writing. In the Court's view, there was no practical reason for him to make another personal visit unless he intended to revisit a decision he had already made.
"Thus," Justice Njie wrote, "there was no need for the Plaintiff to make a return visit to office of the President and him doing so within only a few hours after having left there, in the Court's view, lends credence to the Defendant's position that he had verbally accepted the offer of appointment as a Minister but shortly afterwards changed his mind."
The Court found further support in the testimony of the Chief of Protocol, Alhagie Ousman Ceesay. He testified that President Barrow instructed him to release the announcement appointing Cherno Amadou Sowe as Auditor General only after informing him that Modou Ceesay had accepted the ministerial appointment.
Because this evidence emerged during cross-examination and was not contradicted by any competing testimony, the Court accepted it as credible. Having considered all the evidence together, the Supreme Court made one of its most significant factual findings.
"The Court therefore finds and holds," Justice Njie wrote, "that considering the totality of the evidence before us, the Plaintiff verbally accepted the offer of appointment as Minister of Trade made to him by the President but hours later changed his mind and went back to the Head of State to then decline serving in that position."
Yet that finding did not end the matter. Instead, it became the beginning of the Court's constitutional analysis.
Why a Verbal Acceptance Was Not Enough
The Supreme Court said the central legal issue was not whether Ceesay had verbally accepted the ministerial appointment.
The real question was whether that acceptance satisfied the legal requirements necessary for him to leave a constitutionally protected office.
The answer, the justices said, was no.
Justice Njie pointed to the very appointment letter offering Ceesay the ministerial portfolio.
It specifically required him to communicate his acceptance in writing. The Court found that no such written acceptance was ever produced. Instead, the only written document before the Court was a letter dated September 11, 2025, in which Ceesay formally rejected the ministerial appointment.
Accordingly, although the Court believed he had initially accepted the appointment orally, that acceptance never acquired legal effect because it was never reduced into writing as required by the offer itself. The Court then turned to an even more important constitutional question. Could a person appointed to a constitutional office automatically lose that office simply by verbally accepting another government position?
Again, the answer was no. Justice Njie observed that the Office of the Auditor General is established directly by the Constitution. Because it is a constitutional office, resignation is governed not by informal conversations or political understandings but by the Constitution itself.
The judgment referred to Section 228 of the Constitution, which requires any holder of a constitutional office to resign in writing, addressed to the authority that appointed him or her.
In the case of the Auditor General, that appointing authority is the President. The Court found no evidence that Ceesay ever submitted such a resignation. Nor did the evidence suggest that the President ever accepted a resignation. Justice Njie therefore concluded that Ceesay never legally relinquished the office of Auditor General. The Court also rejected any suggestion that he abandoned the office through his conduct. After the events of September 10, the judgment noted, Ceesay returned to work at the National Audit Office, reported for duty the following day, wrote formally declining the ministerial appointment and again reported for work on September 15 before police officers removed him. Those actions, the Court said, were entirely inconsistent with someone who had abandoned his office. Consequently, the Supreme Court held that Modou Ceesay remained the lawful Auditor General throughout. That finding made what happened on September 15 constitutionally indefensible.
The Police Removal Violated the Constitution
The Inspector General of Police neither testified personally nor called any witness to explain what happened at the National Audit Office on September 15. As a result, the Court largely relied upon Ceesay's account together with admissions made during cross-examination.
Justice Njie observed that defence counsel effectively acknowledged that police officers went to the National Audit Office, that a confrontation occurred and that Ceesay and his staff initially refused to comply with police instructions.
Taken together, the evidence persuaded the Court that police officers entered the National Audit Office under instructions to remove the Auditor General from office, seize his official keys and compel him to surrender his position.
The Court accepted Ceesay's testimony that he was ultimately escorted from the premises by police officers. Having established those facts, the constitutional conclusion followed naturally. Justice Njie ruled that because Modou Ceesay had neither resigned nor been lawfully removed under Section 158 of the Constitution, the police had no constitutional authority to evict him from office.
"The Court's conclusion," the judgment declared, "is that the actions of the officers of the 2nd Defendant in forcefully physically removing the Plaintiff from the Office of Auditor General... is in violation of the provisions of Section 158 of the Constitution."
For Ceesay's, it was a satisfactory legal victory. The country's highest court had accepted that he remained the lawful Auditor General. It found that the police acted unlawfully. It declared the removal unconstitutional. Under ordinary circumstances, that might have ended the case.
Indeed, the Supreme Court itself acknowledged that where a holder of a constitutional office has been unlawfully removed, the normal remedy is reinstatement. But this case, the justices said, was anything but ordinary.
The Court would now turn to a different question, one that would ultimately define the judgment and surprise many commentators. Even after establishing that Modou Ceesay had been unlawfully removed, should he be returned to office?
The Supreme Court's answer was no. And its reasons for refusing reinstatement would become the most significant and closely scrutinized part of the judgment. The answer lay not in whether Modou Ceesay had been wronged. The Supreme Court had already settled that question in his favour.
Instead, the justices shifted their attention to what they described as the more difficult constitutional task: deciding what remedy would best serve the Constitution under the unique circumstances of the case. Justice O.M.M. Njie began by acknowledging what many lawyers would ordinarily expect.
"Ordinarily," he wrote, "for a constitutionally protected office in relation to which a finding of unlawful removal from office is made and having due regard for the principles of separation of powers, the natural course of action is reinstatement."
That statement appeared, at first glance, to point directly toward restoring Modou Ceesay to the Office of the Auditor General. But the Court immediately qualified that principle. "However," Justice Njie continued, "it is important that each case is reviewed on its own merits and circumstances to make an appropriate decision."
That single sentence became the foundation upon which the Court built its refusal to reinstate the former Auditor General.
A Remedy Is Not Automatic
The Supreme Court stressed that winning a constitutional case does not automatically entitle a successful litigant to every remedy he seeks. Instead, constitutional remedies are discretionary.
To explain that principle, Justice Njie relied heavily on the landmark Privy Council decision in McLaughlin v Governor of the Cayman Islands, where Lord Bingham observed that although an unlawful dismissal from public office is ordinarily void, the remedies available in public law remain discretionary. Quoting Lord Bingham, the Court said:
"Since public law remedies are, for the most part, discretionary, it necessarily follows that a claimant may be disabled from obtaining the full relief he seeks whether on grounds of lack of standing, delay or his own conduct or grounds pertaining to the facts of the particular case."
The Supreme Court said the same principle applies under Section 5(3) of The Gambia's Constitution. Even after declaring that the Constitution has been violated, the Court must still decide what order best fits the circumstances before it.
Justice Njie emphasized that the Court's responsibility was not merely to correct a legal wrong but to craft a remedy that would protect constitutional governance itself.
Four Reasons the Court Refused Reinstatement
Having established that legal framework, the Supreme Court identified several factors that persuaded it not to restore Modou Ceesay to office.
The first concerned the practical reality that had developed since September 2025. By the time the judgment was delivered, Cherno Amadou Sowe had already served as Auditor General for more than nine months. The Court noted that there was no evidence suggesting he had failed to perform the constitutional responsibilities entrusted to him. Instead, he had been carrying out the functions of one of the country's most sensitive constitutional offices throughout that period.
Secondly, the Court pointed to the nature of the Office of the Auditor General itself. Although the National Audit Office enjoys constitutional independence and cannot be directed or controlled by any person or authority, Justice Njie observed that the Auditor General must nevertheless work closely with the Executive, particularly the Ministry of Finance, in carrying out the office's constitutional responsibilities. That fact, the Court noted, had been acknowledged by Modou Ceesay himself during his testimony. The justices therefore considered whether restoring him to office would permit the effective functioning of such an institution.
The third factor related directly to Modou Ceesay's own conduct. Although the Court ruled that his verbal acceptance never became legally binding because it was never confirmed in writing, the justices nevertheless concluded that his actions had contributed to the chain of events that followed. Justice Njie put the matter plainly.
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"As found earlier," he wrote, "the actions of the Plaintiff in at first verbally accepting the appointment of Minister of Trade and later changing his mind, undoubtedly contributed to the matters that led to the appointment of Cherno Amadou Sowe as Auditor General to replace him."
That finding did not excuse the constitutional violation committed against Ceesay. But it became an important consideration when deciding whether reinstatement would be appropriate.
The fourth and perhaps most decisive reason concerned the deteriorating relationship between Ceesay and the Executive. The Court said the evidence revealed an acrimonious relationship between the two sides. Because the Auditor General must inevitably engage with government ministries while maintaining constitutional independence, the justices concluded that restoring him to office would likely create continuing institutional conflict.
Justice Njie therefore reached the central conclusion of the judgment.
"Bearing in mind the contributory actions of the Plaintiff and the fact of the 3rd Defendant being in office now for over nine months, in a sensitive national office; and the acrimonious relationship between the Plaintiff and the Executive, as borne out by the evidence before the Court, it would not be an appropriate exercise of discretion to reinstate the Plaintiff to the position of Auditor General."
'Not in the Public Interest'
The Supreme Court then compared the case with its earlier decision in the Ya Kumba Jaiteh constitutional case, where it had ordered the former National Assembly member returned to Parliament.
Justice Njie explained that the two situations were fundamentally different.
Unlike Ya Kumba Jaiteh's case, he said, restoring Modou Ceesay to the Office of the Auditor General would not promote effective governance.
"The restoration of the Plaintiff herein, Modou Ceesay, to the Office of Auditor General," the Court held, "will not be conducive to sound public administration and hence not be in the public interest."
Those words became the defining message of the judgment. The Court was not saying that Modou Ceesay had acted unlawfully. Nor was it suggesting that his constitutional rights had not been violated. Indeed, the Court had already ruled precisely the opposite. Rather, it concluded that the wider public interest demanded a different solution.
Compensation Instead of Restoration
Having decided against reinstatement, the Court turned to what it regarded as a more appropriate remedy. Justice Njie said Modou Ceesay should receive every financial benefit he would have earned had he completed his full statutory term as Auditor General.
The Court ordered payment of his outstanding salary and allowances from September 15, 2025 until the date of judgment, together with interest. It further directed that he continue receiving the salary and allowances attached to the office until the end of his nine-year term or statutory retirement age, whichever comes first.
In addition, the Government was ordered to pay his gratuity and pension entitlements in full. The Court, however, concluded that financial compensation alone would not adequately vindicate the constitutional wrong committed against him. Justice Njie said forcing a constitutionally protected office holder out of his office through police action represented a grave breach of the Constitution.
Drawing on decisions of the Privy Council, including Attorney General of Trinidad and Tobago v JM and Ramanoop, the Court said constitutional violations sometimes require additional damages to recognise the seriousness of the breach, reinforce respect for constitutional rights and deter future misconduct.
Accordingly, the Supreme Court awarded Modou Ceesay D4 million in vindicatory damages against the Attorney General and the Inspector General of Police.
A Landmark Constitutional Decision
The judgment leaves behind a remarkable constitutional legacy. It establishes that holders of constitutional offices cannot be removed outside the procedures laid down in the Constitution, even where political decisions have already been announced.
It confirms that verbal acceptance of another appointment does not amount to resignation from a constitutional office where the Constitution requires resignation in writing.
At the same time, it affirms that even where constitutional rights have been violated, reinstatement is not an automatic consequence. Instead, the Supreme Court signalled that public interest, institutional stability and the practical realities surrounding constitutional governance may, in exceptional cases, outweigh the normal remedy of restoring an unlawfully removed office holder.
