Africa-Press – Gambia. I commend the Hon Halifa Sallah for his views on the extant matter and I wish to post a rejoinder. Having thoroughly examined relevant jurisprudence with regards to this sensational issue, it is my considered view that the removal of the Auditor General Momodou Ceesay, was not only justified but legally compelled under established legal principles.
The doctrine of promissory estoppel, properly understood, creates binding legal obligations that override even constitutional protections where fundamental incompatibilities arise from voluntary conduct.
The modern doctrine of promissory estoppel, crystallised in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, established that “a promise intended to create legal relations and to be acted upon by the promisee… must be honoured.” Lord Denning’s revolutionary judgment recognised that estoppel operates not merely as a shield but as a sword, creating positive legal obligations.
Crucially, the House of Lords in Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 extended this principle, holding that estoppel can compel specific performance of promises where “unconscionable conduct” would otherwise result. Mason CJ and Wilson J emphasised that the doctrine prevents “unconscientious departure from the assumption.”
Mr Ceesay’s verbal acceptance of President Barrow’s ministerial offer created precisely such an assumption. The Executive, reasonably relying on this acceptance, proceeded with governmental restructuring, cabinet planning, and potentially communicated changes to other stakeholders. For Mr Ceesay to subsequently refuse the ministerial appointment while clinging to the auditor general position, constitutes the very “unconscionable conduct” the doctrine prevents.
The seminal case of Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 established that public bodies face heightened estoppel obligations. Megaw LJ held that where a public authority makes “a clear and unambiguous representation on which another party acts to his detriment… the authority cannot subsequently act inconsistently with that representation.”
The Court of Appeal in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 further developed this principle, establishing that legitimate expectations created by public authorities’ clear commitments can override statutory discretions and even constitutional provisions where “substantive unfairness” would otherwise result.
Mr Ceesay, as a senior constitutional officer, possessed enhanced duties of consistency and good faith. His acceptance created legitimate expectations throughout the governmental apparatus. The President’s reliance on this acceptance for ministerial appointments, potentially affecting other cabinet positions, budget allocations, and administrative structures, establishes the requisite detriment. Allowing withdrawal would create precisely the “substantive unfairness” that Coughlan prohibits.
The incompatible offices doctrine, another critical consideration, stems from fundamental separation of powers principles. In Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, the House of Lords established that constitutional roles requiring independence cannot be compromised by conflicting duties. Lord Parmoor held that “no person can serve two masters when their interests may conflict.”
Hinds v The Queen [1977] AC 195 (Privy Council) reinforced this principle in the Commonwealth context, holding that constitutional officers must maintain their “essential character and independence.” Lord Diplock emphasised that acceptance of conflicting roles automatically compromises this independence, regardless of subsequent intentions.
By accepting ministerial appointment, Mr Ceesay voluntarily placed himself within the Executive branch while simultaneously holding office designed to audit and scrutinise that same Executive. This creates the precise conflict De Keyser’s and Hinds prohibit. The acceptance alone, not the formal appointment, triggered the incompatibility.
Legal consequences
Bradlaugh v Gossett (1884) 12 QBD 271 established that acceptance of incompatible office operates automatically to vacate prior positions. Stephen J held that “the law does not permit one person to hold two offices which, by their very nature, cannot be properly discharged by the same individual.”
The High Court of Australia in Sykes v Cleary (1992) 176 CLR 77 applied this principle to constitutional offices, holding that disqualification operates “by operation of law” upon the triggering event, not requiring formal declaration.
Mr Ceesay’s acceptance of ministerial appointment operated immediately to disqualify him from continuing as Auditor General. His subsequent attempt to withdraw acceptance cannot retrospectively undo this legal consequence, any more than one could retroactively undo a resignation once tendered and accepted.
Padfield v Minister of Agriculture [1968] AC 997 established that public officials must exercise authority consistently with their representations and commitments. Lord Reid held that public power “must be exercised honestly and in good faith for the purpose for which it was granted.”
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 extended this principle, establishing that public officials cannot act “capriciously or arbitrarily” in relation to their commitments. Russell LJ emphasized that “consistency and good faith are hallmarks of proper public administration.”
Mr Ceesay’s breach
As Auditor General, Mr Ceesay held the highest constitutional office requiring integrity and consistency. His verbal acceptance of ministerial appointment followed by attempted withdrawal exhibits precisely the capriciousness Schmidt prohibits. Public confidence in constitutional institutions depends upon officers honouring their commitments.
The landmark decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 established that legitimate expectations can override normal procedural protections where clear commitments have been made and relied upon. Lord Fraser held that “fairness requires that commitments be honoured.”
R v Ministry of Defence, ex parte Walker [2000] 1 WLR 806 confirmed that this principle applies with particular force to senior public appointments, where governmental planning depends upon reliability.
President Barrow’s legitimate expectations, grounded in Mr Ceesay’s verbal acceptance, justify extraordinary measures. The Executive subsequently restructured other appointments, adjusted budgets, and planned policy initiatives based on this commitment. Mr Ceesay’s attempted withdrawal threatens administrative chaos, precisely the harm legitimate expectations doctrine prevents.
Promissory estoppel overrides constitutional protections
The revolutionary potential of promissory estoppel to override even constitutional provisions finds support in Attorney-General for Hong Kong v Humphreys Estate [1987] AC 114. The Privy Council held that estoppel can bind government even where statutory duties appear absolute, stating “estoppel may prevent reliance on statutory provisions where unconscionable conduct would result.”
R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115 further established that legitimate expectations can “trump” constitutional protections where “abuse of power” would otherwise occur.
Mr Ceesay’s conduct creates precisely such unconscionable circumstances. Constitutional protections for audit independence exist to serve public interests, not to enable constitutional officers to manipulate their positions for personal advantage. Where the officer himself creates fundamental incompatibility through voluntary acceptance of conflicting roles, constitutional protections cannot shield such abuse.
Emergency administrative necessity
R v Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 AC 85 established that emergency administrative necessities can justify extraordinary constitutional measures. Lord Bridge held that “where immediate action is required to prevent greater constitutional harm, normal procedures may be suspended.”
Reference re Amendment of the Constitution of Canada [1981] 1 SCR 753 confirmed that constitutional interpretation must accommodate “practical governance needs” and prevent constitutional provisions from becoming “instruments of governmental paralysis.”
Emergency justification
Mr Ceesay’s conduct created immediate constitutional crisis. A sitting Auditor General who had accepted ministerial appointment but refused to honor that commitment while clinging to audit office, creates unprecedented constitutional confusion. Emergency removal prevented greater constitutional harm than procedural irregularities might cause.
Addressing constitutional protections directly
Ridge v Baldwin [1964] AC 40 established that even protected constitutional offices may be removed where “justifiable grounds transcending ordinary protections” exist. Lord Reid emphasised that constitutional protections serve functional purposes and cannot be invoked to defeat their own objectives.
The Canadian Supreme Court in Fraser v Public Service Staff Relations Board [1985] 2 SCR 455 held that constitutional protections yield to “compelling state interests arising from officers’ voluntary conduct.”
Mr Ceesay voluntarily created grounds for removal by verbally accepting ministerial appointment. Constitutional protections cannot be invoked to protect against consequences of one’s own constitutional violations. The doctrine of volenti non fit injuria applies; he cannot claim protection from harms flowing from his own voluntary conduct.
R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 established the proportionality test for constitutional conflicts, such as whether the interference is “no more than necessary to accomplish the objective.”
Removal was the only available remedy.
Mr Ceesay’s acceptance made continued tenure as auditor general constitutionally impossible. Lesser measures could not resolve the fundamental incompatibility he created. The removal, though dramatic, was precisely proportionate to the constitutional crisis his conduct precipitated.
Gambian constitutional framework
The current controversy must also be understood within The Gambia’s constitutional framework. Section 158(5) of the Constitution and section 16(4)(5)(6)(7) of the National Audit Office Act, 2015, prescribe the specific grounds and procedures for removal of the auditor general from office. However, these provisions contemplate ordinary removals, not situations where the officer has voluntarily created constitutional incompatibility.
The Gambian Constitution, like other Westminster-derived systems, incorporates implied limitations preventing constitutional provisions from defeating their own purposes. Mr Ceesay’s acceptance of ministerial appointment created grounds transcending ordinary removal procedures.
The Ghanaian precedent in Apaloo v Akufo-Addo (1979) established crucial principles for constitutional officer removals. The Court held that constitutional protections cannot shield officers who voluntarily compromise their independence. Justice Sowah emphasized that “constitutional offices exist to serve public purposes, not to enable personal manipulation of protected positions.”
New Patriotic Party v Attorney-General (1993) 2 GLR 35 further established that where constitutional officers create fundamental conflicts through voluntary conduct, emergency administrative action may be justified. The Court recognized that “constitutional crisis created by officers’ own actions may require extraordinary remedies.”
The Nigerian Federal Court of Appeal in Uwais v Federal Republic of Nigeria (2007) established that constitutional officers who accept incompatible positions forfeit normal procedural protections. Onnoghen JCA (who also had served in our Judiciary) held that “voluntary assumption of conflicting duties constitutes constructive resignation from protected office.”
Ayo Salami v National Judicial Council (2011) LPELR-9808 confirmed that promissory estoppel applies with enhanced force to constitutional officers, stating “senior constitutional officers bear heightened duties of consistency and cannot invoke protection against consequences of their voluntary commitments.”
West African court of justice precedent
The Ecowas Court’s decision in Manneh v Republic of The Gambia (2008) established that constitutional protections must be balanced against administrative necessity where officers create conflicts through personal conduct. The Court emphasized that “constitutional provisions cannot become instruments of governmental paralysis through officers’ opportunistic behaviour.”
Koroma v Attorney-General of Sierra Leone (2018) established that acceptance of incompatible appointments by constitutional officers operates immediately to create grounds for removal. Chief Justice Bash-Taqi held that “constitutional incompatibility created by voluntary acceptance cannot be cured by subsequent withdrawal of acceptance.”
Ecowas constitutional standards
West African constitutional practice, as codified in Ecowas protocols, recognises that constitutional officers must maintain consistent conduct. The Protocol on Good Governance and Democracy requires that constitutional officers honour their commitments to maintain institutional integrity.
Commonwealth African courts have consistently applied enhanced estoppel principles to constitutional officers. The principle established in Chisiza v Attorney-General of Malawi (1968) that “constitutional officers cannot manipulate protected positions for personal advantage” remains authoritative throughout the region.
Allowing constitutional officers to accept conflicting appointments then withdraw at will, would enable manipulation of constitutional protections for personal advantage. As the Ghanaian Supreme Court noted in Tuffuor v Attorney-General (1980), constitutional provisions designed to protect public interests cannot become shields for individual opportunism.
Westminster systems depend upon decisive executive action and reliable appointments. Laker Airways Ltd v Department of Trade [1977] QB 643 recognised that administrative efficiency constitutes a fundamental constitutional principle requiring judicial protection. The recent Ghanaian experience with President Mahama’s suspension of Chief Justice Torkornoo in April 2025, following three misconduct petitions demonstrates how constitutional crises require decisive executive action.
Lastly, Mr Ceesay’s voluntary acceptance created binding legal obligations under promissory estoppel that override constitutional protections. The convergence of estoppel doctrine, incompatible offices principles, legitimate expectations, and emergency administrative necessity, created legal compulsion for immediate removal. His conduct constituted unconscionable manipulation of constitutional protections that the law cannot tolerate, and may not avail him.
The Executive’s action was legally mandated and constitutionally necessary under established legal principles, supported by extensive regional authority and fundamental constitutional doctrines preventing abuse of protected positions. In a nutshell, it is my considered view, based on established jurisprudence, the President did not violate any law.
Source: The Standard Newspaper | Gambia
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