It is exclusively up to the Constitutional Council to decide on the advisability of postponing the presidential election. More than ever, he must restore the authority attached to his decisions to save Senegalese democracy.
The National Assembly of Senegal in its session of February 5, 2024 adopted, in a very conflictual atmosphere, constitutional law No. 04/2024 derogating from the provisions of article 31 of the Constitution. This vote follows the repeal by the President of the Republic of Decree No. 2023-2283 of November 29, 2023 convening the electoral body. These two acts call into question the foundations of our Republic and the long Senegalese democratic tradition.
They also violate the Fundamental Charter which denies the President of the Republic and the National Assembly any prerogative to interrupt the electoral process already underway. Only the Constitutional Council, in circumstances limited by Articles 29 and 34 of the Constitution, holds this power.
The aforementioned constitutional law, due to the incidental effect of lengthening the duration of the last mandate of the outgoing President by the artifice of a postponement of the electoral vote, certainly incurs censorship to the extent that it violates the provisions intangible elements of the Fundamental Charter which remain beyond the reach of any modification. It therefore distances itself from the nature of the constitutional reforms traditionally promoted by the original or derived constituent power. In other times, other morals!
When the nomenclature of eternity clauses expands as the content has been noted following the constitutional reform of 2016, it inevitably restricts the classic domain of invocability of the jurisprudence on the injusticiability of laws constitutional arguments before the Constitutional Council brandished like an antiphon by the self-proclaimed censors of constitutional doctrine. Acting as mentioned above the illicit extension of the term of the current mandate of the outgoing President with the rescheduling of the next presidential election to December 15, 2024, the constitutional law violates the intangibility clause in relation to the duration of the mandate.
However, the same Constitutional Council had finished convincing the most skeptical that it would not shirk its mission of controlling the constitutionality of laws, even if they were constitutional, if the circumstances of the case so required. Recital 3 of decision No. 3/C/2005 of January 18, 2006 issued by the Constitutional Council clearly and definitively settles the question of the justiciability of certain categories of constitutional laws:
“Considering that the constituent power is sovereign; that subject, on the one hand, to the limitations resulting from articles 39, 40 and 52 of the constitutional text relating to the periods during which a revision of the Constitution cannot be initiated or continued and, on the other hand, to respect for the prescriptions of paragraph 7 of article 103 by virtue of which the republican form of the State cannot be subject to revision, it may repeal, modify or supplement provisions of constitutional value in the form it considers appropriate and introduce explicitly or implicitly into the text of the Constitution new provisions which, in the case to which they apply, derogate from rules or principles of constitutional value, whether this derogation is transitional or definitive.
This reminder could not be more explicit in the sense that the second reservation developed by the Constitutional Council concerns precisely the current situation of the postponement of the election which has the effect of extending the duration of the president’s mandate and which, consequently, affects a non-revisable matter provided for in paragraph 7 of article 103.
Beyond the departure from the intangibility of the duration of the mandate, the new wording of article 31 of the Constitution postulated by the constitutional law calls into question the impersonal and general character attached to a constitutional norm. A constitutional provision must be neutral and permanent. Here again, the initiators of the constitutional reform seem to have lacked foresight to the extent that the Constitutional Council, in its decision 1/C/2016 of February 12, 2016, had demonstrated a certain mastery of formal legislation to avoid constitutional norms some improvisations during their drafting: “Considering (20) further that it is inserted in the said article 27, a paragraph 2 which, to settle a question of transitional law, provides that the new provision on the duration of the mandate of the President of the Republic applies to the current mandate; Considering (21) that the rule set out in paragraph 2, intended to fix a situation whose effects are limited in time and essentially temporary, will cease, once its object has been achieved, to be part of the legal order; Considering (22) that as such, it is incompatible with the permanent character attached to Article 27 which the constituent power intends to make inviolable by placing it in the category of provisions not subject to revision; Considering (23) that this paragraph, which has a very marked personal character, is irreconcilable with the general nature of the rules by which the Constitution organizes the Institutions of the Republic and protects the fundamental rights as well as the individual freedoms of citizens; Considering (24), in fact, that the constitutional rules adopted in the required manner are binding on everyone and, in particular, on the public authorities, who cannot paralyze their application by provisions which, due to their individual character, disregard, for this reason alone, the Constitution (…).”
The justiciability of Law No. 04/2024 derogating from the provisions of Article 31 of the Constitution before the Constitutional Council is therefore not subject to any dispute.
There is therefore no doubt that the hope of a way out of the crisis rests with the Constitutional Council, whose prerogatives have been usurped by the political powers. In reality, it is exclusively up to the Constitutional Council to decide on the advisability of postponing the presidential election under Articles 29 and 34 of the Constitution.
More than ever, the Constitutional Council must restore the authority attached to its decisions by article 92 of the Constitution and be part of history to save Senegalese democracy, preserve stability and peace.
– Abdel-El Kader Boye, Professor of exceptional class, Former Dean of the Faculty of Legal and Political Sciences, Former Rector of the Cheikh Anta DIOP University of Dakar.
– Serigne Diop, Full Professor of exceptional class, Associate Professor of Public Law and Political Science, Former Minister of Justice, Former Mediator of the Republic, Former Head of Department of Public Law at UCAD.
– Babacar Gueye, Full Professor of exceptional class, Associate Professor of Public Law and Political Science, Former Head of the Department of Public Law at UCAD.
– Alioune Sall, Full Professor of exceptional class, Associate Professor of Public Law and Political Science, Member of the UN International Law Commission, Former judge of the ECJOWAS, Former Head of Department of Public Law at UCAD.
Jeggan Grey-Johnson
Advocacy Manager
Open Society- Africa
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