Democratic Backsliding in Senegal: A Legal Analysis of the Postponement of Presidential Elections

“President-Macky-Sall” Photo Cred: ANCL_RADC

Editor’s Note: This article was originally published on the ANCL_RADC blog.

On Saturday February 3, President Sall of Senegal, through a televised address to the Nation, announced he had repealed the decree convening the electoral body issued in November 2023. 

This decisive action signified the indefinite postponement of the presidential elections initially scheduled for February 25, 2024. This article seeks to analyse the arguments put forward to justify such an action and to question its constitutionality as well as its impact on democracy in Senegal. 

Why the postponement of the Presidential elections?

In his address to the nation on February 3, 2024, President Sall advanced two main reasons for his decision.  The first, reason was the institutional crisis between the legislative and the judicial power stemming from a contentious decision by the Constitutional Council regarding the candidacy of Mr. Karim Wade, son of the former President Wade and leader of the Parti Democratique Senegalais (PDS). Mr. Karim Wade's exclusion from the presidential elections was due to allegations of dual citizenship, which contravened Article 28 of the Constitution.

That provision states that "[a]ny candidate to the Presidency of the Republic must be exclusively of Senegalese nationality’’. Another candidate, Mr. Thierno Alassane Sall, filed a petition before the constitutional jurisdiction, arguing that Mr. Karim Wade's candidacy should be declared inadmissible based on the exclusive nationality requirement. Mr. Karim Wade presented a certificate from the Consul at the Embassy of France in Doha, affirming his declaration of loss of French nationality on October 26, 2023.

He also provided a copy of the decree dated January 16, 2024, published in the Official Journal of the French Republic on January 17, 2024, indicating the termination of his allegiance to France. In its decision n. 2/E/2024 issued on 20 January 2024, the Constitutional Council deemed the attestation insufficient to establish the loss of French nationality and emphasised that the decree's effect is not retroactive. The material date for consideration was December 21, 2023, the candidacy deposit date. On that day, Mr. Wade made a false sworn statement regarding the loss of French nationality, as the decree's publication on January 16, 2024, marked its effective date.

In response, Mr. Wade and his political party publicly accused two members of the constitutional jurisdiction of corruption and bias in favor of the incumbent president’s candidate, Prime Minister Amadou Ba. The PDS, being one of the minority parties in the National Assembly, called for the establishment of a Parliamentary Commission of Inquiry, as provided for by the National Assembly's internal rules, to examine the corruption allegations against two judges.

Surprisingly, this initiative received support from the ruling party, arguing that it provides an opportunity to clarify and protect their candidate against corruption allegations. However, other opposition parties viewed it as a strategy by the ruling party to support the postponement of what appears to be a challenging election for them. Consequently, a Parliamentary Commission of Inquiry was established through a resolution of the National Assembly. 

The Constitutional Council responded by issuing a public statement denouncing the serious and unfounded allegations of corruption against its members. It emphasised the crucial principle of the separation of powers, stating that the National Assembly lacks the authority to conduct investigations into the constitutional jurisdiction.

The Union of Senegalese Magistrates (UMS) vehemently condemned the establishment of a Parliamentary Commission of Inquiry tasked with investigating magistrates who are members of the Constitutional Council. The UMS viewed this approach as a violation of the principle of the separation of powers and a perilous precedent for the independence of the judiciary.

Against this backdrop, President Macky Sall considered that an institutional crisis existed and invoked Article 42 of the Constitution, which designates the President as the "guardian of the constitution" and the "guarantor of the regular functioning of the institutions”.

According to him, his constitutional role under that provision made it obligatory for him to intervene to resolve the perceived institutional crisis, while fully respecting the principle of the separation of powers. Therefore, the act of issuing the decree suspending the electoral process and calling for a national dialogue had a basis in law.

Meanwhile, Parliament proposed a constitutional amendment to postpone the elections until December 15, 2024, effectively extending the presidential mandate by nine months. The amendment was approved on February 5, 2024, by the majority, following the expulsion (by the police) of parliamentarians who had opposed the proposal.

It is contended here that, using an institutional crisis between the judiciary and Parliament as justification for postponing presidential elections seems opportunistic. This crisis stems from allegations of corruption, yet there has been no conclusive investigation confirming judicial corruption. Can a President make such a critical decision based solely on suspicions of corruption raised by a candidate who was dismissed by the constitutional court?

Furthermore, can it be considered an institutional crisis if the institutions continue to function regularly? In the current context, both the National Assembly and the Constitutional Council appear to be functioning exceptionally well: the National Assembly continues to conduct its ordinary sessions, and the Constitutional Council fully exercises its prerogatives.

The second reason provided by President Sall is the issue of an attempted fraud by a candidate already validated by the Constitutional Council. Indeed, following the exclusion of Karim Wade from the presidential race due to his delayed renunciation of French nationality, candidate Rose Wardini faced criticism.

While the Constitutional Council validated her eligibility, a screenshot from the official French administration website indicated that she was still registered on the French electoral lists. This situation, according to President Sall, raises concerns about the diligence and credibility of the judges' assessments. That reason can also be considered opportunistic. Indeed, there was no need to turn this situation into a political drama since the first paragraph of Article 34 of the Constitution provides a solution.

The candidate could indeed be invited to withdraw from the race, or if the prosecutor initiates legal proceedings against her within the framework of ongoing prosecutions, she could be definitively disqualified. In both scenarios, the next course of action would be for the Constitutional Council to amend its list of candidates, while maintaining the scheduled date for elections as provided for in the Constitution.

‘…using an institutional crisis between the judiciary and Parliament as justification for postponing presidential elections seems opportunistic.’

 The constitutionality of the postponement

Two decisions have been made that led to the postponement of the presidential elections: a decree issued by the President and a constitutional amendment adopted by Parliament. Regarding the decree, it was aimed at revoking the initial decree issued in November 2023, which had convened the electoral body for the presidential elections. This raises the question whether the President has the authority to take such an action.

While Article 31 of the Constitution grants the President the power to convene the electoral body by decree, it remains silent on the authority to revoke such a decree once the electoral body has been officially convened. One potential justification could be the principle of parallelism of forms, which suggests that if the constitution grants the power to convene the electoral body by decree, it implicitly grants the power to revoke it.

However, this argument does not seem to be supported. In law, it is not always the case that issuing a decree automatically grants the latitude to repeal it. For instance, a decree appointing a member of the Constitutional Council cannot be revoked by the President to prematurely end the judge's term of office.

The repeal of the decree convening the electoral body has significant legal consequences, including the interruption of the electoral process and the annulment of the presidential elections. Furthermore, the President seems to base his decision on Article 42 of the Constitution, which designates him as the guardian of the constitution and the guarantor of the regular functioning of institutions. However, that provision merely outlines the President's duties without explicitly granting him the power to annul presidential elections.

Turning to the constitutional amendment approved by Parliament in February, its constitutionality is also questionable. The majority approved an amendment postponing the presidential elections to December 15, 2024, and extending the President's mandate by nine months.

This raises two key questions: (I) Does Parliament have the authority to postpone presidential elections? (II) Does Parliament have the power to extend the presidential mandate? While Article 29 of the Constitution allows the Constitutional Council to postpone elections in the event of a candidate's death, no other provision addresses the postponement of presidential elections.

Additionally, any attempt to extend or shorten the President's mandate through a constitutional amendment would likely violate the eternity clause, which prohibits amendments related to the duration of the mandate, term limits, and the republican form of the State.

Opposition leaders have challenged these actions in the Constitutional Council and the Supreme Court. Part 2 of this blog post will analyse the outcome of these judicial challenges.