A group of five law professors, emeritus, references, university luminaries, Professor Serigne Diop, Professor Abdel Kader Boye, Professor Babacar Guèye, Professor Alioune Badara Fall and Professor Alioune Sall, published an open letter to the members of the Council constitutional. They give them a lesson in law, explaining to them how to judge the appeal brought at the level of this high court by parliamentarians of the National Assembly, attacking the constitutional law which sets the postponement of the presidential election to December 15, 2024. This presidential election was initially scheduled for February 25, 2024.

These public law teachers, who sign their text with their prestigious titles and academic qualities, consider “the indisputable justiciability of constitutional law n°04/2024 before the Constitutional Council”. In less esoteric language, they explain that the Constitutional Council is competent to judge this Constitutional law. This means that the Constitutional Council should revise its constant jurisprudence according to which it cannot judge a constitutional law, especially since its missions are strictly framed by the organic law which establishes its attributions and competences.

“A hundred times the Constitutional Council will be seized to examine a constitutional law, a hundred times it will declare itself incompetent”, Professor Serigne Diop.

This high court cannot be called upon to rule in cases other than those restrictively provided for by the texts. The Constitutional Council does not have the power to rule on a constitutional revision, either from the Constitution or from any provision of the organic law. We can clearly see the first bias of the injunction contained in the course note of the eminent academics. In fact, they admit, by the very title of their text, the character and imperium of a “constitutional law”. It could not be otherwise because the text in question was adopted, by the Constituent, according to the forms of a constitutional law, that is to say by the required majority of more than 3/5 of the members of the ‘National Assembly.  Also, the text changes provisions of the Constitution and all things being equal, a legal provision which changes another naturally has the same authority or the same character. It then appears surprising to ask the Constitutional Council to assume the right or the power to examine a constitutional law.

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Other times, other problems because in the same circumstances, Professor Serigne Diop taught that “a hundred times we will seize the Constitutional Council on the grounds of assessing a constitutional law, a hundred times the Constitutional Council will declare itself incompetent! » We can remember the major debates during the reign of President Abdoulaye Wade, in this case during the adoption of the constitutional law establishing a Vice-President of the Republic in Senegal or the constitutional law establishing the Senate or even the constitutional law on the interim President of the Republic by the President of the Senate, or the constitutional law modifying the duration of the mandate of the President of the Republic. The control of constitutional laws has systematically encountered the refusal of the judge to exercise! As if by chance and for who knows what reason, the Constitutional Council would have to transform itself or deny itself to exercise in the present case!  Would we advocate a sort of rebellion of judges but a rebellion which would certainly not be based on a posture of legality or republican orthodoxy. The Constitutional Council may have been undermined in its honourability with the crazy accusations of corruption brought by a part of the political class against some of its members. However, he cannot adopt a logic of “government of judges”.

We will remember that it is this situation of recurrence of decisions of incompetence of the Constitutional Council which had pushed voices to be raised to demand the increase of the competences of the Constitutional Council or of the interpretation which it makes of them and therefore recommended transforming it into a Constitutional Court as in Benin. Thus, giving it the fullness of his powers and it would rule in all circumstances. Since its decision of March 26, 2003, the French Constitutional Council has systematically declared itself incompetent to rule on the conformity with the Constitution of a constitutional revision.

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The other argument which makes us doubtful is that the five eminent Professors argue that constitutional law cannot modify intangible or immutable provisions enshrined in the Constitution. In simpler language, there would be provisions in the Constitution that no sovereign Constituent should be able to change. Would the constituent who developed the 2016 constitution have more legitimacy or authority to no longer allow another distant future constituent of the year 3016, for example, to set new provisions according to the same rules or procedures? This constituent of 2016 had nevertheless allowed itself to modify provisions previously established by other equally legitimate constituents!

In France, they would fall under criminal law

It must be said that it was the Minister of Foreign Affairs and Senegalese Abroad, another Professor of Public Law, Ismaïla Madior Fall, who was the first to seek to bring back constitutional judges to the benches of the Faculty of Legal Sciences. He made an explanatory note entitled “understanding the postponement of the presidential election of February 24, 2024” and in which he took the liberty of answering his own question: “can the Constitutional Council censor the constitutional law?” « . He also endeavoured to show them that the decree taken by the President of the Republic on February 3, 2024, suspending the electoral process, falls into the category of government acts which benefit from constitutional non-justiciability. We can say that it is very wrong to initiate the debate to provoke the reactions examined above. If the Constitutional Council follows it in “its pleading”, it will always be said that the judges were subject to influence, pressure from government authorities.

Moreover, all these positions involve certain forms of influence, which are unacceptable, on the judges. We can also question the emotional rationality which can weigh on the judges’ deliberations. Indeed, when your former Law Professor, whom you respect, whom you can venerate, shows you the “right” path to follow to resolve a dispute, certainly, anyone can tend to be sensitive to this injunction. We have clearly seen that this is becoming a habit in Senegal, that the various law professors authorize themselves to write publicly, in the newspapers, the factum in place of the Constitutional Council or any other judge. Such positions can constitute real determinants which can strongly condition a judge. Also, the suspicion that will surround the decision that the judges make will be reinforced. Needless to say, judges are only human beings with feelings. In the United States of America, there is a caricature that “justice reflects what the judge had for breakfast”. In the spirit of further protecting judges from these forms of pressure, the Senegalese legislator should consider adopting a law like the one existing in France. Article 434-16 of the French Penal Code provides that: “The publication, before the final judicial decision, of comments tending to exert pressure with a view to influencing the statements of witnesses or the decision of the investigating or trial courts is punishable by six months’ imprisonment and a fine of €7,500. When the offense is committed through the written or audio-visual press, the specific provisions of the laws which govern these matters are applicable with regard to the determination of the persons responsible. In Senegal, this ban is only imposed on magistrates. There is no question of calling into question any right to criticize a court decision. The doctrine enriches the work of Justice through this exercise. This right to criticize and sometimes contest also remains a faculty regulated by law, although it can only be exercised after the verdict has been pronounced. Doing it before undoubtedly results in a form of discrediting Justice.

Time to choose between the plague and cholera

We can never say it enough, the court decision, whatever its scope, will not make it possible to definitively resolve the eminently political question of postponing the presidential election. It appears that the initial rendez vous of February 25, 2024 will inevitably be missed. The question is less whether Macky Sall is a democrat or is the worst dictator the earth has ever known. It is about getting Senegal out of an impasse. Public actors will then only be able to try to get used to it with a new electoral calendar. It will be necessary to accept another date for the election of the President of the Republic. The stubborn refusal to discuss to agree on the date of December 15, 2024 or another date undoubtedly presents serious risks for civil peace and institutional stability and the democratic system. Those who would like to overturn the negotiating table should know that their extremism could lead to an extreme situation of a military putsch (God forbid!). But, unfortunately, if this happens, instead of December 15, 2024, the election would be held in the best case in 2027. It is enough to observe around Senegal that all the putschist regimes which had promised short transitions have remained in power for several years and are not yet thinking of organizing elections.

By Madiambal DIAGNE / mdiagne@lequotidien.sn

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