Charges and convictions are piling up, but Ousmane Sonko’s lawyers assure him: nothing prevents the anti-system opponent, invested on July 13 by his party The African Patriots of Senegal for work, ethics and brotherhood (Pastef), to participate in the presidential election of February 2024. “There will be no election in this country, or else it will be in indescribable chaos if by legal tricks President Macky Sall wanted to prevent my candidacy” , he himself warned in early July in an interview on the France 24 channel.
But can Ousmane Sonko really compete, when his roster has been disbanded and he’s incarcerated? Le Monde tries to answer by returning to the three legal proceedings that weigh on the opponent. On hunger strike, the latter was hospitalized on Sunday August 6, according to his entourage.
This sentence alone, handed down in May, could have resulted in the removal of Ousmane Sonko from the electoral lists, but his lawyers appealed to the Supreme Court a few days after the judgment. “The appeal in cassation being suspensive, its condemnation does not, for the moment, have any effect on its eligibility”, explains Yaya Niang, professor and researcher in public law at Gaston-Berger University in Saint-Louis. For Ousmane Sonko to be removed from the electoral lists, the Court would have to reject the defense request.
But that’s not all. In Senegal, deregistration can only occur during the revision period of the electoral register. For the 2024 presidential election, this overhaul ended in early May. In the event of rejection by the Supreme Court of Ousmane Sonko’s appeal in cassation, the leader of Pastef would be obliged to rely on the Constitutional Council.
This is what happened to the former mayor of Dakar, Khalifa Sall, convicted in August 2018 of “forgery and use of forgery” and “fraud relating to public funds”. His candidacy for the 2019 presidential election had been invalidated by the Constitutional Council several months after the closing of the revision of the electoral register and ten days after the failure of his cassation appeal. The body had considered in its decision that a sentence “implying his removal from the lists”, struck him with “electoral incapacity”.
Accused of rape by Adji Sarr, a former employee of the Sweet Beauty massage parlor in Dakar, Ousmane Sonko was convicted in June of “corruption of youth”. He was not present at his trial and therefore cannot appeal this conviction which, again, could make him ineligible.
According to the Senegalese Code of Criminal Procedure, the judgment of conviction can only be “annihilated” if the convict in absentia is arrested or surrenders himself prisoner. In this case, the case must be retried, not in the Court of Appeal, but in the same chamber where it was examined in first instance. “An overturned conviction has no effect on eligibility,” recalls Yaya Niang.
Ousmane Sonko was indeed arrested on July 28 and, on August 3, he notified from prison his “non-acquiescence in the judgment”. But the situation is particularly tangled: the public prosecutor Abdou Karim Diop believes that the reasons for the opponent’s imprisonment have “no connection with the procedure” linked to the Adji Sarr case. In other words, it cannot be retried.
“The prosecution put us in an incomprehensible situation. How can a person be put in the bonds of detention and still be deemed to be in absentia? asks Me El Amath Thiam, specialist in business litigation. At a press conference on Monday, August 7, the Minister of Justice Ismaila Madior Fall repeated that the judgment in this rape trial “is not executed”. Faced with this imbroglio, the question of the eligibility of Ousmane Sonko may have to be decided again by the constitutional judges when deciding on the candidacies for the presidential election.
After being arrested and detained in Dakar, the opponent was charged with nine counts, including “call for insurrection, association of criminals, attack on state security, association of criminals in connection with a terrorist enterprise” and “conspiracy against state authority”. The investigation is still in progress. Ousmane Sonko is therefore still presumed innocent of the charges against him and his eligibility is not in question. No timetable has been set for a trial in this case. It is therefore unlikely that a court decision will be made by February 2024, the date of the presidential election.