Senegal is under tension after Macky Sall announced, on Saturday February 3, the postponement of the presidential election initially scheduled for February 25. The National Assembly has since set the election for December 15. If this date were confirmed following the appeals filed before the Constitutional Council and the Supreme Court by several candidates, the Head of State, who however reaffirmed his commitment not to run again, would see his mandate extended by more than nine months. The opposition called on Wednesday February 7 to form a broad front to push it back.
The Community of West African States (ECOWAS), which says it is following the situation “with concern”, had the day before encouraged “the political class to urgently take the necessary measures to restore the electoral calendar” and asked ” law enforcement agencies to exercise the utmost restraint, to protect the fundamental rights of all citizens.” The United States, an important partner of the country, questioned “the vote of the National Assembly [which] cannot be considered legitimate given the conditions in which it took place.” Paris, for its part, called on “the authorities to remove uncertainties around the electoral calendar so that the elections can be held as soon as possible and in compliance with the rules of Senegalese democracy. »
The professor and researcher at the Faculty of Law of Cheikh-Anta-Diop University (UCAD) in Dakar, El Hadji Omar Diop, deciphers this institutional crisis which is bringing Senegal “into the era of constitutional abnormality”.
The President of the National Assembly exercises the police force of the Assembly. If one or more deputies disrupt the session, he can call them to order and, if the disturbances persist, he can request the police and have them expelled. On the other hand, in terms of the democratic spirit, what happened is inelegant to say the least. Democracy is taking a big hit. A law of this importance requires debate and contradictions.
Normally, only the Constitutional Council is empowered to suspend the electoral process and in very specific cases such as the incapacity or death of a candidate. The National Assembly can pass laws that modify the Constitution, but without affecting either the number of presidential mandates or their duration. The adoption of a “proposed constitutional law derogating from the provisions of article 31 of the Constitution”, because it has the direct consequence of extending the mandate of Macky Sall, is therefore a clear violation of the law fundamental. And the violation of the legal framework of a Republic is the source of all the abuses observed in developing countries which are experimenting with democracy.
I do not think so. The current situation results from a divergence that is too slight to justify blocking the electoral process because all the country’s institutions are functioning normally. We are therefore in a purely political logic, with an institutional crisis which was artificially created after the camp of one of the candidates [Karim Wade] accused two judges of corruption because their champion was not selected. We mobilize the law for political ends.
Knowing that no police or judicial investigation has been carried out and that no blatant evidence has been provided, these two judges are being thrown into the public eye. What is serious is that this presumption of guilt is being used to disrupt the electoral process. By discrediting these magistrates, the entire institution is weakened. The very one who must ensure the sincerity of the vote and proclaim the results. It is strategy that takes precedence over law and it is extremely dangerous. Where will it stop?
The Council rules with seven judges, but the minimum quorum is four, so nothing prevents the institution from doing its work.
The Constitution of Senegal is very clear in its article 92 paragraph 4: “The decisions of the Constitutional Council are not subject to any appeal. They are binding on public authorities and all administrative and jurisdictional authorities. » Parliament therefore has no prerogative to investigate the decisions of the Constitutional Council or another jurisdiction.
We can clearly see that the crux of the problem lies in the validation of sponsorships. These powers must be entrusted to the Autonomous National Electoral Commission (CENA). As a control and supervision structure, CENA can receive all sponsorships and verify them. Thus, all disputes will be able to be resolved before the constitutional judge who will be protected in his role and given credibility.
The head of state can make the decision to leave office the day after April 2. In this case, it is the President of the National Assembly who ensures the vacancy of power and calls a new vote within two to three months. Otherwise, we are in a de facto extension of his mandate.
If the Constitutional Council validates the appeal against the postponement of the presidential election, the initial electoral process with the date of February 25 must resume. Otherwise, a new voting date will have to be set. But there is a very strong risk that the Council will declare itself incompetent, because the bill passed by Parliament amends the Constitution. In this case, the electoral process will continue, but with a postponement.
This situation would strengthen Macky Sall’s position. However, in a democracy, respect for the republican calendar is a sacrosanct principle. The normal term of the mandate makes it possible to replenish the legitimacy of the authorities holding political mandates. Their limitation in number and duration is one of the conditions of differentiation between democracy and other forms of political regimes. If you touch this pillar, the entire building is weakened. We have entered the era of constitutional abnormality. We touch on the heart of Senegal’s democratic model.
