In an in-depth analysis note, the legal consultant and president of the Justice Without Borders association, El Amath Thiam, dissects the controversial reform of articles L.29 and L.30 of the Senegalese electoral code.

While the text promises progress towards greater proportionality and the restoration of civic rights, it also raises questions about its neutrality and political aims. From the elimination of automatic disqualifications to the omission of opinion offenses, and the five-year limit on ineligibility, the expert scrutinizes the constitutional implications of a reform for which the Constitutional Council will be the ultimate arbiter.

Here is the full text of his document, entitled: "Between justice and politics: the challenges of reforming articles L.29 and L.30 of the Electoral Code in light of constitutional requirements".

“In Senegal, electoral consensus is the essential foundation of democratic stability and institutional credibility. Democracy is not limited to the regular organization of elections; it also rests on the legitimacy of electoral rules and their acceptance by all actors.”

Thus, prior consultation is a legal requirement, not merely a political option. It is enshrined in Senegal's international commitments, notably Article 2 of the 2001 ECOWAS Protocol and the African Charter on Democracy, Elections and Governance, which emphasize inclusion and dialogue in any electoral reform. African jurisprudence reinforces this requirement by rejecting unilateral reforms that could undermine the democratic balance.

Domestically, the experience of the 1992 Electoral Code illustrates the effectiveness of inclusive dialogue, having enabled the adoption of a stable and consensual framework. Consensus thus appears as a genuine tool for preventing crises and consolidating political trust.

It is within this framework that the reform of Articles L.29 and L.30 of the Electoral Code must be analyzed. While it opens up prospects for modernization, it also raises significant constitutional issues, as evidenced by the referral to the Constitutional Council in 2021, revealing the legal sensitivity of these provisions. The Constitutional Council, seized by several members of the 14th legislature, including Mamadou Lamine Diallo, Diéthié Fall, Moustapha Guirassy, and Ousmane Sonko (decision no. 3/C/2021, cases no. 3 and 4/C/2021), already demonstrates the legal sensitivity of these provisions, which are currently being amended.

A reform that strikes a balance: between the requirement of proportionality and the restoration of political rights

"The proposed reform does not call into question the principle of ineligibility. Rather, it aims to redefine its scope, refocusing it on the most serious offenses against probity, public morality, or public order."

In this context, the repeal of Article L.30 of the Electoral Code represents a significant step forward. This provision automatically excluded from the electoral rolls anyone convicted of a fine exceeding 200,000 CFA francs, thus establishing a particularly rigid and sometimes disproportionate restriction on civic rights. Its removal marks a rebalancing in favor of protecting fundamental rights.

Furthermore, limiting the duration of ineligibility to five (5) years from the expiry of the sentence puts an end to situations of prolonged, or even indefinite, exclusion that are incompatible with the requirements of proportionality.

The question of applying the principle of retroactive application of more lenient laws to electoral matters deserves particular attention. Traditionally confined to criminal law, this principle could be applied when new provisions are more favorable to citizens. In this regard, the Constitutional Council, in its decision no. 1/C/2025 of April 23, 2025, concerning the amnesty law, upheld the retroactive application of legislative measures restoring civic rights, deeming them constitutional.

Therefore, the immediate application of the time limit to subsequent situations appears legally sound. What about the fate of current ineligibility situations? In practice, this development would promote the civic rehabilitation of previously excluded citizens, thus contributing to a more inclusive democracy, unless the Constitutional Court issues a different opinion.

A controversial reform: between suspicions of political agenda and the weakening of normative neutrality

"Despite its contributions, the reform raises serious questions about its neutrality. One of the main grievances lies in the omission of certain offences against public property and against persons, classified as opinion offences: offense against the head of state, dissemination of false news, public insults, defamation or attacks on the security of the state.

This exclusion raises questions about a possible differentiated application of criminal law according to categories of litigants, a phenomenon that can be described as asymmetric penalization.

Furthermore, the risk of misuse of legislative power cannot be dismissed. If the reform appeared to pursue particular interests, the Constitutional Council could consider it a violation of the requirement of the general interest. In this regard, constitutional case law consistently reiterates that the legislature cannot intervene to neutralize the effects of a final court decision (Decision No. 11-93 of June 23, 1993).

The reform also introduces a structural change: the shift from automatic electoral disqualification to criminal disqualification pronounced by the judge, including mandatory additional penalties which are added to the main penalties provided for in Article 34 of the Penal Code.

This demonstrates the increasing judicialization of ineligibility. By removing the automatic nature of ineligibility, the legislature aims to transfer responsibility for it to the criminal court (through the additional penalties outlined in Article 34 of the Penal Code). This shifts the system from automatic "electoral disqualification" to "criminal disqualification" determined by a judge.

The court's practice reveals, in fact, a certain reluctance on the part of judges to impose these sentences in cases with political connotations or a political nature. For example, the cases of Karim Wade, Khalifa Sall, Barthélémy Dias, and Ousmane Sonko illustrate a previous practice based primarily on the automatic disqualification from voting under Article L.30 of the Electoral Code, rather than on criminal penalties.

Furthermore, a normative inconsistency remains: the five (5) year period stipulated by the reform contrasts with the potentially ten (10) year period for criminal disqualification (Article 34, paragraph 2 of the Penal Code). Harmonization therefore appears necessary to ensure consistency in the structure of the two legal systems.

The inviolability of judicial decisions and the neutralization of their civic effects.

“A fundamental distinction must be made between a criminal conviction and its consequences for civic rights. This clarification is essential to avoid any confusion in the public debate. Does the reform aim to neutralize past court decisions? The answer is no. The text does not affect the conviction itself, but only addresses the resulting electoral consequences.”

The proposed reform in no way calls into question final judicial decisions. In accordance with the principles of the rule of law, namely, legally established guilt remains unassailable, the sentence pronounced and carried out retains its full force, and the criminal record retains its record.

The legislature has no power to erase or revise a court decision. However, it is its responsibility to determine the legal effects attached to that conviction. Thus, the reform does not aim to annul convictions, but to reconfigure their electoral consequences. An offense no longer covered by the new Article L.29 could no longer justify exclusion from the electoral lists.

This is therefore neither a disguised amnesty nor a challenge to judicial authority, but a rebalancing between criminal sanctions and the exercise of political rights.

The Constitutional Council as arbiter: a decisive control in the service of the rule of law

“The Constitutional Court, once perceived as ‘self-limited by Kelsenian interpretation,’ has become more pragmatic and bold, having already demonstrated the full extent of its powers in electoral matters and, in addition, its considerable power of interpretation stemming from the principles set forth in its decision No. 1/C/2024 of February 15, 2024 (paragraph 19). The Council strongly reiterates that ‘it must always be able to exercise its regulatory power […] in the name of the general interest, public order, peace, the stability of institutions, and the principle of the necessary continuity of their operation.’”

It will therefore be up to him to determine whether the reform strengthens democratic vitality or whether it weakens the normative balance of the Electoral Code, a true crossroads between constitutional law, criminal law and administrative law.

It will be up to the Constitutional Court to determine whether the reform strengthens democracy or undermines the balance of the Electoral Code. Case law reminds us that a law must pursue an objective of general interest, without any abuse of power.

The reform of Articles L.29 and L.30 presents an opportunity for modernization and better protection of fundamental rights. However, its success will depend on its ability to transcend political considerations in order to preserve the neutrality of the law and respect for judicial authority.

Ultimately, only an approach based on genuine consensus will ensure a legitimate and accepted reform.

Last but not least, democracy rests above all on the trust of the actors in the common rules, beyond the texts themselves.