By: Cecilia E.L. Mendy
The Supreme Court has declared the removal of former Auditor General Modou Ceesay from office “unconstitutional,” ruling that the action violated Section 158 of the Constitution and the National Audit Act.
Delivering the judgment on Tuesday, Justice O.M.M. Njie, on behalf of the Supreme Court panel, held that the removal of Ceesay by officers of the Gambia Police Force was unlawful because it failed to comply with the constitutional procedure governing the removal of an Auditor General.
The court says the constitution requires that an Auditor General can only be removed through prescribed procedures involving a medical board in cases of incapacity or a tribunal established to investigate allegations of misconduct or incompetence.
Despite finding the removal unconstitutional, the court declined to order Ceesay’s reinstatement.
Instead, it ruled that the incumbent Auditor General, Cherno Amadou Sowe, should remain in office, stating that reinstating Ceesay would not be in the public interest.
The court noted that evidence before it indicated that Ceesay’s relationship with the executive had deteriorated and observed that although the Auditor General’s office was constitutionally independent, it required a functional working relationship with the executive.
The Supreme Court ordered that Ceesay be paid his full salary and allowances for the remainder of his nine-year tenure, together with his salary for the month preceding the judgment.
It directed that the payments be made within 60 days.
The court also awarded Ceesay D4 million in damages for the violation of his constitutional right to security of tenure.
The Attorney General and the Inspector General of Police were ordered to pay the damages within 60 days.
In addition, the court directed all parties to file affidavits within seven days detailing Ceesay’s age, salary history, allowances, pension benefits and gratuity to facilitate the calculation of his full financial entitlements.
In its judgment, the Supreme Court reaffirmed the constitutional protection afforded to holders of independent public offices, emphasizing that the president cannot remove an Auditor General without complying with the procedures prescribed by the constitution and the law.
The ruling affirmed the independence of the Office of the Auditor General while maintaining that reinstatement was not the appropriate remedy in the circumstances of the case.