Réintégration de Sonko à l'Assemblée : "Juge Dème" explique pourquoi le Conseil constitutionnel ne peut se déclarer incompétent
Following Ousmane Sonko's reinstatement to the National Assembly and his installation as its Speaker, opposition members of parliament filed an appeal with the Constitutional Council. In their petition, they denounce a violation of the Constitution and the principle of the separation of powers. However, many believe the Council could declare itself incompetent. This view is not shared by Ibrahima Hamidou Dème, commonly known as Judge Dème, President of the ETIC movement. He has given his opinion in the text below.
"The referral to the Constitutional Council by opposition MPs regarding the reinstatement of Mr. Ousmane Sonko to the National Assembly raises a crucial preliminary question: that of the jurisdiction of the constitutional court.
This question is essential because it directly affects the credibility of the institution as well as its fidelity to the conception of its mission as it has itself enshrined in its recent jurisprudence.
For a long time, the Senegalese Constitutional Council has been criticized for its tendency to adopt a restrictive interpretation of its powers. Faced with certain institutional crises, it has often been accused of favoring a formalistic approach of declaring itself incompetent rather than fully exercising its role as guardian of the supremacy of the Constitution.
However, this perception was profoundly disrupted by the historic decision made on February 15, 2024 regarding the postponement of the presidential election.
With this decision, the Constitutional Council not only struck down an initiative that seriously threatened the constitutional order, but it also undertook a particularly ambitious redefinition of its own mission. It then forcefully affirmed that "In light of the spirit and the letter of the Constitution and the law relating to the Constitutional Council, the Council must always be able to exercise its regulatory power in order to preserve the general interest, public order, peace, the stability of institutions, and the continuity of their operation."
Beyond the solution adopted in this case, it is this principle enshrined in its recital 19 that deserves our full attention today.
By this solemn affirmation, the Council clearly claimed a role in regulating the functioning of institutions, thus breaking with an excessively restrictive jurisprudence of its own competence.
This development was already perceptible in recital 7 of the same decision, where the Council stated:
"While it is true that the Supreme Court judges abuses of power by executive authorities, the Constitutional Council, which judges the regularity of national elections, has full jurisdiction in electoral matters (...)."
This motivation was perceived by many observers as a genuine reversal of jurisprudence, or even as a particularly bold extension of the powers of the Council, justified by the need to preserve the integrity of the electoral process and institutional stability.
Therefore, it would be difficult to understand why the jurisdiction which recognized itself as competent to assess administrative acts contributing to the regularity of a national election would today declare itself incompetent to examine a question directly affecting the status of a member of parliament and the constitutional regime of incompatibilities between governmental and parliamentary functions.
In any modern state governed by the rule of law, case law also constitutes a source of law. When a supreme court interprets the Constitution, defines the scope of its powers, or specifies the principles that govern its intervention, this interpretation becomes a normative reference intended to guide future decisions.
Case law is certainly not immutable. Every jurisdiction can evolve its doctrine. Reversals in case law exist in all legal systems. However, they remain exceptional and must be expressly justified. They cannot be dictated by the political circumstances of the moment or by the identity of the individuals involved.
That is why the question posed today to the Constitutional Council is first and foremost a question of consistency.
Was the principle affirmed on February 15, 2024 a general principle intended to guide the action of the constitutional judge in the long term, or was it merely a circumstantial solution intended to respond to a particular political crisis?
The answer to this question is crucial.
If the Council truly intended to uphold its role as regulator of the functioning of public authorities, it will be difficult for it to ignore a dispute that directly concerns the organization of institutions, the status of parliamentarians, and the application of constitutional rules relating to the exercise of the elective mandate.
Article 92 of the Constitution states that: "The Constitutional Council has jurisdiction over the constitutionality of laws."
However, the dispute specifically concerns the interpretation and application of legislative and regulatory provisions relating to the parliamentary mandate, which must necessarily be assessed in light of the Constitution.
The question concerns the interpretation of rules that directly contribute to the institutional balance intended by the Constitution. It relates to the relationship between the executive and legislative branches. It raises questions about the rules governing conflicts of interest and the conditions for exercising a parliamentary mandate.
In other words, it specifically concerns the regular functioning of the institutions of the Republic.
However, it is precisely in this area that the Constitutional Council claimed a particular responsibility in 2024.
Therefore, a declaration of incompetence would give the impression that the principle enshrined in 2024 was only applicable in certain circumstances and that it could be disregarded when the political stakes become different.
Such an approach would undermine the very authority of constitutional jurisprudence."
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