2024-02-14 16:27:14
Eleven days after the announcement by the Head of State, Macky Sall, of the postponement of the presidential election which was to be held on February 25, and while the shock wave created by this unprecedented decision in the history of Senegal continues to shake the local political class, the upcoming decision of the Constitutional Council could change the situation.
This court must rule on the constitutionality of the law passed on February 5 by the National Assembly, ratifying the postponement to December 15 of the presidential election and extending the mandate of President Macky Sall until his successor comes to power. A capital decision which will be taken by an institution in turmoil, because two of its seven judges are accused of having been corrupt during the examination of presidential candidacy files.
What is the role of the Constitutional Council in the current crisis?
This jurisdiction was seized by opposition deputies on February 8, three days after the National Assembly adopted a bill on the postponement of the presidential election. Such a decision is unprecedented in the history of the country, where presidential deadlines have until now always been respected, and it was taken in exceptional circumstances. It was voted on almost unanimously by the deputies present (105 votes for, one against), and for good reason: the sixty opposition deputies who protested against the text had just been taken out of the hemicycle by the forces of the order.
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The Constitutional Council must now study the constitutionality of the law, a crucial decision awaited by the entire political class. According to several sources, it could be announced quickly, but nothing is forcing the body in this direction. According to the texts, the Council has one month to decide, in this case until March 7, a deadline reduced to eight days if the government declares it urgent.
Whatever its decision, the Constitutional Council will find itself in an uncomfortable position. When he announced his wish to see the vote postponed by several months, Macky Sall in fact justified the need for a postponement by “a dispute between the National Assembly and the Constitutional Council, in open conflict against the backdrop of an alleged case of corruption of judges”adding that Senegal cannot “allow yourself a new crisis”. The high court therefore finds itself both judge and accused.
What do we blame him for?
Supposed to be the guardian of rights and freedoms, the Constitutional Council is required to be impartial, but two of its seven judges are accused of having been corrupt. The Senegalese Democratic Party (PDS) affirms that Amadou Ba, the prime minister, majority candidate for the presidential election, has “used his power to manipulate the election and eliminate candidates”dont Karim Wade. “The PDS deputies believe that judges Cheikh Tidiane Coulibaly and Cheikh Ndiaye should have recused themselves because of their dubious connections and their conflict of interest”writes the opposition party in a press release dated January 21.
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The day before, the Constitutional Council had rejected the candidacy of the son of former president Abdoulaye Wade (2000-2012) because of his dual Franco-Senegalese nationality, still in effect at the time of submitting his file. The PDS then initiated the creation of a parliamentary commission of inquiry in order to “correct all the failures of the Constitutional Council and establish conditions guaranteeing the holding of an inclusive presidential election”which was established with the support of the majority.
This is the first time in the country’s history that members of the Constitutional Council have been accused of corruption. However, this key jurisdiction has been in turmoil in the past. In May 1993, its vice-president Babacar Sèye was assassinated a few days after the legislative elections by a commando suspected of being affiliated with the PDS, then in opposition. Two months earlier, its president Kéba Mbaye had resigned even before the proclamation of the results of the presidential election, won by Abdou Diouf, to denounce the conditions in which the vote was held. “Despite these events, the electoral process was completed”indicates constitutional law professor Babacar Gueye.
Who are the judges involved?
The first judge targeted by suspicion of corruption is Cheikh Ndiaye. He disputes these accusations and filed a complaint on January 29 for defamation and contempt of court. “Based on suspicion, two senior magistrates were dragged through the mud even though their status protects them, they are not subject to ordinary courts”recalls Ousmane Chimère Diouf, president of the Union of Magistrates of Senegal, who stepped up to the plate after the creation of the parliamentary commission of inquiry which, according to him, “undermines the principle of the separation of powers” and is “a dangerous precedent for the independence of justice”.
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The other is Cheikh Ahmed Tidiane Coulibaly. He is the last of the judges to have joined the jurisdiction, in November 2023. The president of the Constitutional Council, Mamadou Badio Camara, then welcomed “professional, moral and human qualities” why magistrate “He is known and recognized for his probity and his integrity,” assures Babacar Gueye. He is the brother of former minister Abdou Latif Coulibaly. This loyal collaborator of Macky Sall since 2012 made his disapproval of the postponement of the election known by resigning from his position as secretary general of the government on the same day of its announcement by Macky Sall.
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The seven judges who make up the Constitutional Council are supposed to be apolitical but are appointed by the president, by decree, for a non-renewable six-year term. According to Professor Gueye, Mamadou Badio Camara is reputed to have “excellent relations with the President of the Republic”. “We can imagine that Macky Sall will not appoint people who are opposed to him”estimates the academic.
What will be the consequences of his decision?
While Senegal has plunged into a political crisis, no one knows exactly what the consequences of the decision of the Constitutional Council, which can validate the law postponing the election or, on the contrary, revoke it, will be. Indeed, Macky Sall has not committed to following the jurisdiction. “When the decision is made, I will be able to say what I will do”he told the Associated Press on February 9, in the only interview he has given since his February 3 speech.
Several majority officials assert that the members of the Council do not have the authority to control a constitutional law. “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”, declared on France 24 the Minister of Foreign Affairs, Ismaïla Madior Fall, who is an associate professor of public law. In summary, he believes that all appeals brought before the body by the deputies are doomed to failure.
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An analysis that several constitutionalists and law professors refute, who assure on the contrary that the Constitutional Council is competent in this specific case, because the law affects an intangible provision of the Constitution. “The republican form, the duration of the mandate of the President of the Republic and the number of his mandates cannot be subject to revision”, explains Babacar Gueye, who cites article 103 paragraph 7 of the Constitution. However, the law proposes to maintain Macky Sall in power until his successor is elected, which prolongs in fact his mandate, supposed to end on April 2.
“The Constitutional Council is competent and it must censor this lawargues law professor Sidy Alpha Ndiaye. If he rejects the appeal of the deputies and validates the law of postponement of the election, this means that any revision which affects the number of mandates or their duration would be possible. This would undermine the rule of law and democracy. »
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