the debate on the competence of the Constitutional Council is underway

the debate on the competence of the Constitutional Council is

Will the opponents of the postponement of the Senegalese presidential election be able to open the battle on the legal front? The opposition plans to challenge before the Constitutional Council the shift to December 15, 2024 voted by the majority in the Assembly. The Minister of Foreign Affairs and constitutionalist Ismaïla Madior Fall estimated on France 24 that the Constitutional Council did not have the possibility of taking up this question. A disputed statement.

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This is a technical debate, but crucial to Senegal. Part of the ongoing political crisis is playing out between the lines of the Senegalese Constitution and the jurisprudence of the Constitutional Council. This Wednesday, February 7, the Minister of Foreign Affairs Ismaïla Madior Fall, who is an associate professor of public law and political science, and a university professor, considered that the Constitutional Council could not be seized of the text of the constitutional law voted on February 5 by the majority in the National Assembly. “ The Constitutional Council is competent in Senegal to hear ordinary laws, organic laws, but not constitutional laws, indicated the head of Senegalese diplomacy to our colleagues at France 24. A constitutional judge does not control constitutional laws. It is constant jurisprudence that the constituent power is sovereign and that a constitutional law cannot be controlled, let alone censored, by the constitutional jurisdiction. “. Concretely: the appeals brought before the body are, according to him, doomed to failure.

Read alsoSenegal: the Assembly votes to postpone the presidential election after the forced evacuation of opposition deputies

Contacted by RFI, another Senegalese specialist, Sidy Alpha Ndiaye, also an associate professor of public law and professor at Cheikh Anta Diop University in Dakar, has a completely different reading of the competence of the Constitutional Council. According to him, the Council is fully competent. “ There is a case law of January 18, 2006 of the Senegalese Constitutional Councilhe explains, which says that it is possible to control a constitutional law if the constitutional law was adopted in a period of crisis (art.52 for example) or if the constitutional law touches on a matter which is considered to be intangible, in particular the duration of the mandate. » And this other jurist estimates: “ The truth of the law is to say that, since this revision law concerns an eternity clause, it can and must be the subject of an appeal. »

In 2006, recalls Sidy Alpha Ndiaye, the Constitutional Council declared itself incompetent, but had set out the criteria according to which it could have been, and in particular the non-compliance with paragraph 7 of article 103 of the Constitution : “ The republican form of the State, the method of election, the duration and number of consecutive mandates of the President of the Republic cannot be subject to revision. ” He adds : ” When we postpone the election, we fundamentally affect the duration of the mandate. »

Sidy Alpha Ndiaye, associate professor of public law and professor at the Cheikh Anta Diop University of Dakar

Laurent Correau

Is the postponement constitutional?

Was the postponement of the vote scheduled for February 25 done in compliance with constitutional law? Basically, Ismaïla Madior Fall believes that “ the decision to postpone the date of the presidential election […] until December 15, 2024 was done according to the Constitution, in scrupulous respect for the Senegalese Constitution. »

Senegalese Minister of Foreign Affairs responds to France 24

I don’t agree eitherreplies Sidy Alpha Ndiaye. The President of the Republic cannot postpone an election. It is the Constitution which provides for the conditions for postponing an election. Even the National Assembly cannot postpone an election. The presidential election in Senegal can only be postponed by the supreme electoral judge, the Constitutional Council. It is only up to the Constitutional Council to postpone an election for a few days (art. 29 of the constitution, art. 34 of the constitution of Senegal.) No other body has this prerogative ».

The minister finally indicated in the interview with France 24 that the postponement of the vote “ is not an initiative of the President of the Republic » : « The President of the Republic is not the author of this bill, he is not its initiator or inspiration. It all started with a parliamentary deliberation. This is the parliamentary group of the PDS [le Parti démocratique sénégalais, de Karim Wade, dont la candidature avait été rejetée, Ndlr]which is an opposition party, which tabled the proposal to postpone the election. »

This February 7, a collective made up of 13 of the 20 presidential candidates met. They denounce a constitutional coup by Macky Sall to postpone the election and remain in a position that he was due to leave when his mandate expires on April 2. “ After this deadline, Macky Sall will no longer be recognized as President of the Republic. He will not be able to take any action that will commit Senegal “, declared Aly Ngouille Ndiaye, candidate and former minister.