“When Constitutional Invalidity Does Not Produce Constitutional Restoration”- Abdoulie Fatty

Lawyer Abdoulie Fatty, Secretary General Gambia Bar Association

Constitutional Title, Constitutional Consequence and Judicial Remedy in Modou Ceesay v Attorney General

By Abdoulie Fatty

Independent constitutional institutions exist for a purpose fundamentally different from that of the Executive. They are not created to govern. They are created to ensure that those who govern remain accountable to the Constitution and the law. Their independence is therefore not a privilege enjoyed by those who hold office. It is a constitutional safeguard established for the benefit of the public.

That safeguard matters most when constitutional duty requires disagreement with political power. The independence of the Auditor General is valuable not because conflict with the Executive is expected in every case, but because the Constitution recognises that there will be occasions when faithful performance of the office demands precisely that. Security of tenure is therefore not an incidental feature of the office. It is one of the constitutional mechanisms through which institutional independence is preserved.

Against that constitutional background, the Supreme Court’s judgment in Modou Ceesay v Attorney General assumes significance extending well beyond the dispute between the parties. It addresses questions that may one day arise in relation to every constitutionally protected office whose legitimacy depends upon independence from executive influence.

In the interests of transparency, I should disclose that I appeared before the Supreme Court as amicus curiae in these proceedings. During my oral submissions, I relied, among other authorities, upon the decision of the Ghana Supreme Court in Centre for Democratic Development (CDD-Ghana) & Others v Attorney-General (May 2023), which articulates with considerable clarity the constitutional role of the Auditor General within a democratic state. My purpose here, however, is not to revisit arguments advanced before the Court. Those ended when judgment was delivered. These reflections are offered in the spirit of constitutional dialogue, recognising that respectful engagement with judicial decisions is one of the ways constitutional jurisprudence develops.

The Supreme Court’s judgment deserves recognition for several important reasons.

It rejected the State’s central contention that Mr. ModouCeesay vacated the office of Auditor General merely by accepting a ministerial appointment. It held that there had been neither a lawful acceptance of that appointment nor a lawful resignation from office. It further declared that his forcible removal from the National Audit Office was unconstitutional. Those conclusions reaffirm an essential constitutional principle: the holder of an independent constitutional office cannot be displaced except in the manner prescribed by the Constitution and the law.

I respectfully agree with those conclusions. My reflections, and perhaps where I depart respectfully,begins after that the Court made that determination. 

The office of Auditor General occupies a distinctive position within our constitutional architecture. It is not an ordinary public office. It exists to scrutinise the management of public resources, examine executive expenditure and report independently to the National Assembly. In CDD, the Ghana Supreme Court described the office as one of the Constitution’s principal accountability institutions. I cited that decision because it captures a constitutional principle that resonates equally within our own constitutional order. Institutions created to hold Government accountable must themselves remain institutionally independent of Government.

Our Constitution reflects precisely that philosophy.

Like the Judiciary, the Independent Electoral Commission, the Ombudsman and the office of Auditor General enjoys constitutional protection because theireffectiveness depends upon public confidence in their independence. The National Human Rights Commission (NHRC) is created by the National Assembly and its Chairperson and Commissioners also have security of tenure for exactly that reason. These safeguards belong to the institution rather than the individual. They exist because constitutional democracy requires certain offices to remain insulated from political control if they are to perform their functions credibly.

The constitutional framework governing the tenure of the Auditor General reflects that objective.

Section 228 of the Constitution prescribes the manner in which the holder of a constitutional office resigns. The Supreme Court correctly concluded that no resignation complying with that provision occurred.

The National Audit Office Act 2015 reinforces that constitutional framework.

Section 16(3) regulates voluntary resignation by requiring the Auditor General to give thirty days’ noticebefore the office is vacated. Parliament thereby ensured that even a voluntary departure from such a constitutionally significant office occurs within an orderly legal framework.

Section 16(4) addresses an altogether different situation. It governs involuntary removal by the President on specified statutory grounds, including inability to perform the functions of office by reason of infirmity of mind or body or other sufficient cause, and misconduct or misbehaviour. In doing so, it complements the Constitution by regulating the circumstances in which tenure may lawfully be brought to an end against the office holder’s will.

Read together, section 228 of the Constitution and sections 16(3) and 16(4) of the National Audit Office Act reveal a coherent legislative design. Parliament distinguished carefully between voluntary resignation and involuntary removal, prescribing separate legal regimes for each. What the statutory framework does not contemplate is a third route by which constitutional tenure may simply dissolve because the Executive concludes that the office holder has accepted another appointment.

That, however, was the foundation of the State’s case.

It argued neither resignation in accordance with section 228 and section 16(3), nor removal pursuant to section 16(4). Instead, it contended that an alleged acceptance of ministerial office, unsupported by a written resignation and unaccompanied by the statutory removal process, itself created a constitutional vacancy.

The Supreme Court rejected that proposition and rightlyso.

Once that conclusion had been reached, however, another constitutional question inevitably emerged.

If there was neither a lawful resignation nor a lawful removal, where, in law, did the vacancy arise?

The answer to that question is, in my respectful view, the constitutional fulcrum upon which the remainder of the case turns.

A constitutional vacancy is a legal fact. It is not an executive assumption.

The answer to that question requires one to return to the Constitution itself.

Section 158 provides, in language that is both concise and deliberate, that “there shall be an Auditor General.” At first reading, the provision appears merely to establish the office. In reality, it does considerably more. It embodies the constitutional assumption that, at any given time, there exists one lawful holder of that office. The Constitution does not contemplate competing constitutional titles. Nor does it permit a vacancy to arise simply because another appointment has been announced or another individual has assumed the functions of the office.

Every appointment to the office of Auditor General therefore rests upon one anterior constitutional fact.

There must exist a lawful vacancy. Appointments do not create vacancies. They presuppose them.

That proposition informed my submissions before the Supreme Court as amicus curiae, and it remains central to my understanding of the judgment. Once the Court concluded that Mr. Ceesay had neither lawfully resigned nor been lawfully removed, the existence of a constitutional vacancy necessarily became the next question. If constitutional tenure had not lawfully come to an end, upon what legal foundation did the subsequent appointment rest?

It is at this point that the distinction between constitutional title and constitutional remedy assumes importance.

Those concepts are related but fundamentally different.

Constitutional title asks who, in law, is entitled to occupy a constitutionally protected office.

Constitutional remedy asks what relief a court should grant after answering that question.

The existence of judicial discretion in relation to remedy cannot, in my respectful view, displace the Court’s prior obligation to determine the legal consequences flowing from its findings on constitutional title.

The Supreme Court has itself previously demonstrated the importance of ensuring that constitutional remedies remain coherent with constitutional findings. In Gambia Participates & Others v Clerk of the National Assembly & Others (2020), having concluded that the inclusion of D54.4 million in the Appropriation Act had been procured through a process that contravened the Constitution, the Court declined to invalidate the Act in its entirety. Instead, it severed only the offending provision, holding that where the unconstitutional component could be conveniently separated without defeating the purpose of the legislation, the appropriate constitutional response was to remove only that part which offended the Constitution. In doing so, the Court fashioned a remedy that corresponded precisely to the constitutional defect it had identified.

It is here that the distinction between de jure and de facto office holding becomes indispensable.

A de jure office holder is one whose entitlement to office rests upon law. His title derives from the Constitution and the governing legal framework, that is, the National Audit Office Act.

A de facto office holder occupies the office under the appearance of lawful authority. The common law recognises the validity of his official acts, not because his legal title is necessarily unimpeachable, but because public administration cannot be permitted to descend into uncertainty whenever defects in appointment are subsequently discovered.

The doctrine is therefore one of necessity for the essence of continuity of government. It exists to protect the public.

It protects innocent third parties who rely upon official acts performed under apparent lawful authority.

It preserves continuity in the machinery of government.

Without it, every decision, every audit, every administrative act and every public function would remain vulnerable whenever a court later identified a defect in the office holder’s appointment.

For that reason, the doctrine performs an indispensable constitutional function. Its purpose, however, is limited. It validates official acts. It does not, however, determine constitutional title. Nor does it extinguish the legal rights of the person whom the Constitution continues to recognise as the lawful holder of the office.

That distinction is not merely theoretical. It has already found expression in Gambian constitutional jurisprudence.

The Supreme Court’s decision in Ya Kumba Jaiteh v Clerk of the National Assembly provides, in my respectful view, an illuminating illustration of the relationship between de jure title and de facto occupation.

The comparison is instructive, not because the two cases concern identical constitutional offices or necessarily require identical remedies. Rather, it lies in the Court’s treatment of continuing constitutional title after concluding that the lawful office holder had been unconstitutionally excluded from office.

Following the President’s purported revocation of Ms. YaKumba Jaiteh’s nomination to the National Assembly, she was excluded from Parliament while Mr. FodayGassama occupied the seat and participated fully in the proceedings of the Assembly. During that period, he debated Bills, voted on legislation and discharged all the practical functions of a nominated National Assembly Member.

When the Supreme Court ultimately decided the matter, the Court declared the President’s revocation unconstitutional. It further held that Mr. Gassama’snomination was null and void ab initio (from the onset), directed that he cease holding himself out as a nominated member of the National Assembly and restored Ms. Jaiteh to her seat.

Although the Court did not expressly employ the terminology of de jure and de facto office holding, its reasoning unmistakably reflected those principles.

Throughout the period of her exclusion, Ms. Jaiteh remained, in law, the de jure nominated member of the National Assembly. Mr. Gassama functioned as the de facto member.

The significance of Ya Kumba Jaiteh lies not merely in the Court’s declaration that the President acted unconstitutionally. It lies equally in the legal consequences that the Court attached to that declaration.

Having recognised Ms. Jaiteh’s continuing constitutional title, the Court restored that title by restoring her to office.

At the same time, it did not invalidate the proceedings of the National Assembly during the period in which Mr. Gassama participated. The legislation enacted with his participation remained undisturbed, thereby preserving continuity, legal certainty and the orderly functioning of Parliament.

In other words, the Supreme Court gave full effect to both doctrines simultaneously.

It vindicated constitutional title by restoring the de jure office holder. It protected continuity of government by preserving the legal validity of acts performed by the de facto office holder. That, in my respectful view, represents a coherent application of the common law doctrine.

The de facto doctrine was not permitted to defeat constitutional title. It merely prevented disruption to public administration.

It is precisely at this point that Modou Ceesay raises a constitutional question deserving further reflection.

In both cases, the Supreme Court concluded that the claimant had been unlawfully excluded from a constitutionally protected office.

In both cases, another individual occupied that office and discharged its functions during the intervening period.

In both cases, the circumstances engaged the de facto doctrine to preserve continuity in public administration.

Yet the legal consequences appear materially different.

In Ya Kumba Jaiteh, recognition of the claimant’s continuing de jure title culminated in the restoration of the lawful office holder, while the de facto doctrine operated only to preserve the validity of official acts performed during the period of unconstitutional exclusion.

In Modou Ceesay, however, the Court likewise recognised Mr. Ceesay as the lawful (de jure) Auditor General and declared his removal unconstitutional. Nevertheless, that recognition did not culminate in the restoration of the lawful office holder, nor did the judgment expressly determine the constitutional status of the subsequent appointment in the manner adopted in Ya Kumba. In Ya Kumba Jaiteh, the Supreme Court declared that the nomination of Foday Gassama was unconstitutional, null and void because the seat he was nominated to fill was never constitutionally vacant in the first place.  

I readily accept that the two cases concern different constitutional offices and that differences in institutional function may justify different remedies. That, however, is not the comparison I seek to make. My concern is narrower.

Ya Kumba Jaiteh demonstrates a coherent application of the distinction between de jure title and de facto occupation. The lawful office holder recovered the office. The de facto office holder’s official acts remained legally effective in the interests of continuity and legal certainty.

It is that constitutional sequence which, in my respectful view, appears materially different in Modou Ceesay.

The question, therefore, is not whether the de facto doctrine applies. Plainly, it does.

The question is whether, once the Court recognised that Mr. Ceesay remained the lawful holder of the office throughout, the Constitution required a fuller examination of the legal consequences flowing from that continuing constitutional title.

That, in my respectful opinion, is where the jurisprudential significance of the two decisions truly lies.

The constitutional questions arising from Modou Ceesay extend beyond the circumstances of the individual case. They invite reflection upon a broader constitutional principle concerning the relationship between the Executive and institutions established to hold executive power accountable.

The Auditor General is one of the Constitution’s principal accountability institutions. The office exists not to assist the Executive but to scrutinise it. Its constitutional duty is to ensure that public funds are collected, managed and expended in accordance with the Constitution and the law. That responsibility inevitably requires the office holder to reach conclusions that may, from time to time, be unwelcome to Government.

The same constitutional philosophy underlies several other independent institutions created by the Constitution.

Judges determine disputes involving the Executive.

The Independent Electoral Commission supervises elections in which the Executive has a direct political interest.

The Ombudsman investigates maladministration by public authorities.

The National Human Rights Commission examines allegations of human rights abuses and violations by those entrusted public power.

Each of these bodies performs functions that require institutional independence from those whose conduct they are constitutionally and statutorily required to examine.

Their security of tenure therefore serves an institutional rather than a personal purpose. It protects the office and not necessarily the office holder.

It follows that constitutional safeguards must be understood not merely as protection against overt executive interference but also against circumstances capable of creating a reasonable perception that institutional independence has been compromised. It is from that perspective that this litigation raises a broader constitutional concern.

I have reservations, as a matter of constitutional principle, about the practice of offering political office to holders of independent constitutional institutions while they remain in constitutional tenure.

This observation should not be misunderstood.

I do not suggest that the mere offer of political office is, without more, unconstitutional.

Nor do I question the motive of such appointments.  My concern is institutional. The Constitution seeks not merely to preserve actual independence but also public confidence in that independence.

Constitutional design therefore avoids placing either the Executive or an independent office holder in circumstances capable of creating a reasonable perception that faithful discharge of constitutional responsibility may later become a pathway to political office.

The issue is not whether a particular office holder would compromise his or her independence. The issue is that constitutional safeguards should avoid creating that question in the first place. That understanding finds support beyond our own constitutional order.

The Lima Declaration of Guidelines on Auditing Precepts and the Mexico Declaration on Supreme Audit Institution Independence both proceed upon the premise that effective public auditing requires institutional independence from the Executive.

The same philosophy is reflected in successive resolutions of the United Nations General Assembly, which have repeatedly recognised the importance of independent Supreme Audit Institutions in promoting accountability, transparency and good governance.Although these instruments are not directly binding, they illuminate a constitutional value shared across modern constitutional democracies. Institutions established to scrutinise Government must themselves remain institutionally separate from Government.

That constitutional philosophy also explains why I respectfully find one aspect of the Supreme Court’s remedial reasoning difficult.

The Court referred to the deterioration in the relationship between Mr. Ceesay and the Executive as one of the factors relevant to the remedy ultimately granted. I understand why that consideration was thought relevant.I nevertheless struggle with the constitutional implications of that approach.

According to the Court’s own findings, the President approached Mr. Ceesay because he was impressed by the manner in which he had discharged his constitutional responsibilities as Auditor General. There was, at that stage, no suggestion of friction between them.

The relationship deteriorated only after Mr. Ceesay rejected the ministerial appointment, maintained that he remained the lawful holder of a constitutionally protected office and resisted efforts to remove him.

The deterioration in the relationship was therefore not the cause of the constitutional dispute. It was one of its consequences. That distinction is constitutionally significant. Independent constitutional office holders are not protected because they are expected to enjoy harmonious relations with the Executive. Quite the contrary.

The Constitution protects them precisely because it anticipates occasions when the faithful discharge of constitutional duty may strain those relationships.Disagreement with Government is not a constitutional aberration. It is often the inevitable consequence of institutional independence.

It therefore sits uneasily with the constitutional purpose of security of tenure if a relationship that deteriorates as a consequence of an office holder insisting upon his constitutional rights later becomes a consideration limiting the constitutional consequences of vindicating those very rights.

There is one final aspect of the judgment upon which I respectfully differ.

The Supreme Court declared the actions of the Police in removing Mr. Ceesay from the National Audit Office unconstitutional, null and void. I respectfully agree.Once the Court concluded that Mr. Ceesay had neither resigned nor been lawfully removed, that conclusion followed almost inevitably.

My concern, however, lies one constitutional step earlier.

The Police did not determine that Mr. Ceesay had ceased to be Auditor General. They did not determine that a constitutional vacancy existed. They did not appoint another substantive Auditor General. They merely implemented a constitutional decision taken elsewhere. That distinction matters.

The Constitution is concerned not merely with who executes public power. It is equally concerned with who authorises it. The constitutional violation therefore did not begin with the actions of the Police. It began with the Executive’s conclusion that a constitutional vacancy existed notwithstanding the absence of either a lawful resignation or a lawful removal.

The subsequent appointment of Cherno Amadou Sowe.The attempted assumption of office. The deployment of the Police. The exclusion of Mr. Ceesay from the National Audit Office. These were successive stages of a single constitutional sequence.

Once the Court rejected the constitutional premise upon which that sequence rested, I respectfully find it difficult to separate the implementation of the decision from the decision itself.

The Police executed the decision. They did not make it.Constitutional scrutiny must therefore begin with the decision that authorised their intervention rather than ending with the intervention itself. It is against that broader constitutional background that the question of judicial remedy ultimately falls to be considered.

For in the end, the constitution is not tested when it protects those whose rights are undisputed; it is tested when a court has declared those rights to exist and must decide what the law requires to give them practical meaning and effect.