In the wake of the unconstitutional removal of the Auditor General (AG) by the President, Halifa Sallah wrote an open letter highlighting the security of tenure of the AG in the Constitution which the President cannot abrogate. In response, Barrow ally and GMC leader Mai Ahmad Fatty wrote a rejoinder to disagree with Halifa Sallah, stating that indeed the removal of the AG was legal. Fatty relied on the principle of Estoppel, a legal principle in contract and administrative law to defend his position.
Having gone through his rejoinder, it is clear that Fatty was indeed misapplying the principle of Estoppel in this case hence misleading both the President and the public. For the interest of the public, when leading voices like Mai Ahmad Fatty’s sought to mislead the public, it is necessary that such false narrative is countered.
Let me say upfront therefore that the principle of Estoppel or Estoppel obligations cannot override the Constitution in any way. The basic premise of Mai Ahmad Fatty’s argument that just because the Auditor General Modou Ceesay accepted the ministerial offer, therefore the principle of Estoppel applies is to say Modou Ceesay’s words are superior to the 1997 Constitution. In the first place, Fatty has provided no tangible evidence that Ceesay accepted the offer. Only Dr. Ismaila Ceesay stated that, but Ceesay himself has denied accepting the offer verbally or in writing.
To the question of Estoppel…
Estoppel is a key equitable principle in contract law that prevents a person or party including a government agency from going back on their word, representation, or conduct when the other party has reasonably relied on it to their detriment. It operates to ensure fairness and prevent unjust outcomes in contractual relationships, even when there is no formal consideration or binding contract for a specific promise.
In administrative law, Estoppel refers to a situation where a public authority is barred from denying or contradicting a statement, representation, commitment, or an established course of conduct. The principle protects a private individual or entity who had reasonably relied on the public authority’s promise from suffering harm or disadvantage as a result.
In administrative law therefore, Estoppel often overlaps with the doctrine of legitimate expectation, which protects individuals from sudden or unfair changes in government policy or practice. Legitimate expectation is when a person expects a certain treatment or benefit based on past conduct, policies, or assurances. In this case, the principle of Estoppel states that the government is legally barred from denying that expectation if reliance and detriment are proven.
For example, when a local council consistently grants a particular type of permit and then suddenly refuses without notice or justification, affected citizens may claim Estoppel and legitimate expectations.
But Estoppel has limitations on public authorities. Unlike private parties, public bodies have certain unique protections. For example, courts are cautious in applying Estoppel against the government because of public interest considerations. One of these limitations is to prevent illegality, that is, Estoppel cannot compel a public authority to do something unlawful.
For that reason, it is established in law that Estoppel obligations cannot override the Constitution. In other words, Estoppel obligations cannot compel a public authority to act contrary to constitutional provisions. The Constitution is the supreme law of the land, and all other legal principles, including Estoppel, must operate within its boundaries.
The appointment and removal of the Auditor General is a constitutional matter which overrides the offer, redeployment, and promotion by the President on one hand, and on the other hand overrides the verbal or written acceptance by AG Modou Ceesay. Both the President and Modou Ceesay cannot and should not violate the Constitution regardless of what they offered or accepted.
Constitutional obligations exist to serve the entire public, not just individual parties. The rule of law requires that all government actions comply with the Constitution, not just administrative fairness. Courts have consistently held that you cannot use Estoppel to “legalize” something that was unlawful from the start. Even Parliament or government policy decisions are subject to constitutional limits. None can hide behind Estoppel to expand their powers beyond constitutional authority.
Considering the foregoing, Mai Ahmad Fatty is merely misapplying the principle of Estoppel hence misleading both the President and the public. Regardless of whether Modou Ceesay wrote or verbally expressed acceptance of the offer of appointment as minister, the fundamental issue here is the supremacy of the Constitution.
As Halifa Sallah noted in his open letter, echoed by several legal and administrative experts, CSOs and all concerned persons and entities, the 1997 Constitution provided clear grounds for the appointment and removal of the AG. Therefore, the words of the AG cannot be a reason to justify the President to remove the AG outside of the constitutional requirements. To claim such means to state that the AG’s words supersede the 1997 Constitution.
I would urge Mai Ahmad Fatty to withdraw his misguided rejoinder, and henceforth uphold and submit to lawfulness, faith, and morality as he proclaims. I urge him to be a pillar of defense for public interest and not to be an enabler of abuse of power, poor leadership, unconstitutionality, and corruption in the Gambia.
For The Gambia, Our Homeland
