The Constitutional Council has annulled the law adopted on 5 February 2024. Initiated by the MPs, it concerned the postponement of the presidential election initially set for 25 February 2024, to 15 December 2024. The political situation had reached a crisis point. On 31 January 2024, a parliamentary committee of enquiry into serious allegations of corruption by members of the Constitutional Council was set up. The following day, 1 February 2024, it was revealed that a candidate whose name appeared on the list retained by the Constitutional Council had been disqualified. On 2 February 2024, the Parliamentary Group of the Senegalese Democratic Party (Pds), supported by the parliamentary majority of Benno bokk yaakaar (Bby), tabled a bill to postpone the presidential election. The National Assembly decided to examine the text under emergency procedure. Using this situation as a pretext, President Macky Sall issued a decree on 3 February 2024 suspending the electoral process. The intention was to give free rein, at the very least, to the legislative procedure that had been set in motion. The Constitutional Council also declared that the decree abrogating the convocation of the electoral body had no legal basis.

The Constitutional Council’s blinkers

I amused myself by pointing out that Senegal is a fine banana dictatorship where judges can hand down a verdict repudiating both the National Assembly and the President of the Republic, and go home to sleep in peace. Better still, President Macky Sall, without objection or murmur, issued a press release in which he took note of the decision and undertook to implement it in full. This is undoubtedly another step on the infinite road to strengthening the rule of law. The fact remains, however, that while citizens bow to the decision, they are still entitled to exercise their right of objection or criticism. It is in this sense that we can remain sceptical in many respects. In fact, the Constitutional Council emphasises in particular « that, with regard to the spirit and the letter of the Constitution and the organic law relating to the Constitutional Council, the Constitutional Council must always be in a position to exercise its regulatory power and fulfil its missions in the name of the general interest, public order, peace, the stability of the institutions and the principle of the necessary continuity of its operations ».

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In the name of this principle, the Constitutional Council must exercise control over its own activities. In other words, the Constitutional Council, insofar as it recognises its legitimate right to control the acts of other institutions, cannot ignore its own turpitude. The Constitutional Council must be obliged to give its opinion and explain itself on the case of Rose Wardini, whose dual nationality was discovered and made public, with clear evidence; the same evidence provided to disqualify Karim Meïssa Wade. It should be noted, however, that before the Constitutional Council’s verdict, Wade had provided proof that he had renounced his French nationality. Was it to divert their gaze from this failure that the constitutional judges refrained from specifying, in their decision of 15 February 2024, with which list of competing candidates the presidential election should be held? This is by no means superfluous.

In any case, the list of candidates, published on 21 January 2024, has not yet been amended, and the Constitutional Council should take all the necessary steps to try to avoid any further damage to its selection process, which could bring its work into disrepute. If it does, it will have covered itself in ridicule. The President of the Republic has a duty to formally consult the Constitutional Council on this question of the list of candidates, with a view to removing any ambiguity.

A successor to be elected before 2 April 2024

Incidentally, the Constitutional Council has set a very clear marker, namely that the term of office of the President of the Republic may not exceed 2 April 2024, and that it is therefore up to the President to take the necessary steps to hold the final election of his successor before this deadline. President Macky Sall does not seem to be in any doubt about his firm decision to leave office on 2 April 2024. But there are voices in his camp, no doubt not yet weaned off on power, urging him to take his time, even if it means leaving it to an interim President, in this case the President of the National Assembly, to organise the election. This would certainly not be in President Sall’s interest. It would be a cop-out on his part. His image is already damaged enough without adding a bad wrinkle that will make him appear to be the only President of the Republic of Senegal to have to hand over power to an interim successor. We say it with a heavy heart, Macky Sall has done enough in this country not to deserve such an admission of failure.

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He will have to hand over power with the same dignity with which he inherited it. The trick of working to postpone the election is not fooling anyone. Some would like to reshuffle the deck in order to surreptitiously submit new candidatures. Any excuse will do, such as the Muslim Ramadan and Catholic Lent. You would think that all activities would cease during this period. In other countries as populated by believers as Senegal, these periods of religious worship do not prevent elections from being held.

Macky Sall does not have much room for manoeuvre. All he has to do is get on with organising the presidential election. The various administrations in charge of the electoral process were already prepared for an election on 25 February 2024. The suspension of the electoral process, on the very day that the electoral campaign began, was not due to any lack of preparation on the part of the Administration. In other words, all that is required to restart the process is to readjust the timetable for electoral operations.

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The Constitutional Council took care not to put the President of the Republic and his Administration in a corset, by not setting them an election date. It could have explained why. This is a good position to take for a number of reasons. The principle of the separation of powers and its corollary, the prohibition of injunctions against the Administration, cannot authorise the Judiciary to do so. The Administration alone knows its means of action and the time it needs to hold an election. Therefore, the Constitutional Council cannot assess the material, human or logistical resources in place of the competent authorities. The fact remains, once again, that the Constitutional Council has clearly ruled that the current term of office cannot be extended in any way. The Administration must organise itself to find the means and mechanisms to ensure that the newly elected President of the Republic is installed on 2 April 2024. The Constitutional Council has remained within its role, which is to say that it wanted to give the Administration « a reasonable deadline ». More than ever, the President of the Republic must make the Constitutional Council his privileged interlocutor and work with this institution, in complete confidence, on all issues relating to the conduct of the electoral process.

Macky Sall should invoke Article 52 of the Constitution

To satisfy this overriding requirement, the President of the Republic cannot fail to place it within a legal framework. The legal deadlines set for electoral operations will inevitably need to be affected. For all that, the new electoral process will have to be circumscribed within a legal framework, while he can no longer materially resort to a legislative procedure to change, for example, the length of the electoral campaign or the deadlines for examining electoral disputes. The only option left to him is to resort to article 52 of the Constitution, which gives him « exceptional powers », such as legislative powers, with the exception of a revision of the Constitution. « When the institutions of the Republic, the independence of the Nation, the integrity of national territory or the fulfilment of international commitments are threatened in a serious and immediate manner, and the regular functioning of the public authorities or institutions is interrupted, the President of the Republic shall have exceptional powers.

He may, after having informed the Nation by means of a message, take any measure designed to re-establish the regular functioning of public powers and institutions, and to ensure the protection of the Nation. He may not, by virtue of exceptional powers, carry out a constitutional revision » (article 52 of the Constitution of the Republic of Senegal).

This new procedure would undoubtedly make it possible, after discussion with the candidates, to reduce the length of the electoral campaign for the first round, for example, as well as that of a possible second round. In this way, the election could even be held on a working day, which the Head of State could declare a paid public holiday. Otherwise, laws passed under the urgent procedure will still need to comply with the procedure and deadlines for promulgation, not to mention any parliamentary obstructions or other delaying tactics. Recourse to the mechanism of arrogating « exceptional powers » remains an option conferred on the President of the Republic by the Constitution.  Admittedly, the mechanism may seem cavalier, not too democratic and would not delight a democrat, but it remains legal and legitimate. The same applies in France when the government invokes the provisions of Article 49-3 of the Constitution to force through legislation. It is all very well to cry anti-democracy or the confiscation of parliamentary debate, but laws adopted on the basis of this mechanism will be no less valid and will be of equal dignity and invested with the legitimacy and authority of the law of the Republic. There remains a gentler route, that of legislative empowerment, derived from article 77 of the Constitution. But in this case, more days will inevitably be lost.

By Madiambal DIAGNE / mdiagne@lequotidien.sn

  • Translation by Ndey T. SOSSEH / Serigne S. DIAGNE