Décision n° 6/C/2026 du Conseil constitutionnel : une précision de plume qui interroge la doctrine (par Ousmane Sané)
From the outset, let me be very clear: Article 92, paragraph 4 of the Constitution of Senegal is unequivocal — “the decisions of the Constitutional Council are not subject to appeal. They are binding on all public authorities and all administrative and judicial bodies .” This statement is therefore not, and cannot be, a challenge to Decision No. 6/C/2026 of July 9, 2026. It is a call to action from fellow legal scholars whose academic authority is beyond question—I am thinking in particular of Professors Babacar Kanté, Serigne Diop, Papa Demba Sy, and El Hadj Mbodj —and a broader invitation to legal scholars, practitioners, and citizens to take an informed look at a specific point in the reasoning behind the decision.
I also wish to strongly affirm the competence, integrity, and professionalism of the members of the Constitutional Council, each of whom I know personally. What follows is a matter of textual rigor, not suspicion.
When we examine closely the decision of the Constitutional Council and the provisions of paragraph 4 of article 82 of the Constitution, one observation is necessary: there is a divergence between recital 25 and the text of article 82.
Decision No. 6/C/2026 censures Law No. 18/2026 revising the Constitution for two cumulative reasons: financial inadmissibility based on Article 82 paragraph 2, and failure to comply with the "blocked vote" procedure provided for in Article 82 paragraph 4. It is on this second point, developed in recitals 24 to 28, that I wish to draw the attention of my peers.
Recital 24 states that "it appears from the documents submitted to the proceedings that the Government requested the blocked vote, a constitutional prerogative granted to it." Recital 27 reiterates the same characterization: the National Assembly allegedly disregarded Article 82, paragraph 4, "at the request of the Government." Up to this point, there is no ambiguity.
But in between, recital 25 – which nevertheless quotes verbatim the text of paragraph 4 of Article 82 – is worded as follows:
"If the President of the Republic so requests, the National Assembly, having been seized of the matter, shall decide by a single vote on all or part of the text under discussion, retaining only the amendments proposed or accepted by the President of the Republic."
- Recital 25, Decision No. 6/C/2026
However, the current constitutional text, as consolidated after Law No. 2024-15 of December 19, 2024, unequivocally states in Article 82, paragraph 4:
"If the Government so requests, the Assembly before which the matter is brought shall vote in a single vote on all or part of the text under discussion, retaining only the amendments proposed or accepted by the Government." - Article 82, paragraph 4 of the Constitution
Recital 25 is thus the only instance in the decision to substitute "the President of the Republic" for "the Government" in the citation of the applicable law itself—whereas the recitals immediately surrounding it (24 and 27) correctly use the term "Government." This constitutes, at the very least, an internal editorial inconsistency that deserves to be noted and explained, as this nuance is far from insignificant given the very clear distinction between Titles III and IV of our fundamental law.
Indeed, the Senegalese Constitution never conflates the President of the Republic and the Government. They are two distinct institutions, governed by two separate titles:
Article 43 reinforces this functional separation: the acts of the President of the Republic are, in principle, countersigned by the Prime Minister, with the exception of a limited list of articles (45, 46, 47, 48, 49 paragraph 1, 52, 74, 76 paragraph 2, 79, 83, 89 and 90). Article 82 is not among these exceptions.
In other words, the prerogative of the blocked vote, as written in Article 82 paragraph 4, is attributed specifically and exclusively to the Government — a collegial and united body within the meaning of Article 56 — and not to the President of the Republic acting alone, outside of any countersigned governmental act.
In light of the foregoing, I formulate, with all due deference to the authority of the Wise Men: the following question: when the Constitution provides "If the Government so requests…" and the reasoning of a decision of the Constitutional Council, in its recital 25, reformulates this same provision as "If the President of the Republic so requests…", what might happen in law if this substitution reflected - no longer a simple error of pen, but - the reality of the generating event, that is to say a request actually emanating from the Presidency and not from the Government in the organic sense of article 53?
Three consequences seem to me to require discussion by legal scholars:
1. Lack of standing of the applicant. Since the President of the Republic is not, within the meaning of Article 53, a member of the Government, a request for a blocked vote originating solely from him is not valid.
- without government authorization countersigned under the conditions of Article 43 - would encounter a problem of the prerogative's authority. The National Assembly could not then be accused of having "disregarded" Article 82, paragraph 4, by refusing to comply with a request submitted by an authority not covered by that text.
2° A weakening of the second basis for censure. If the triggering event identified in recitals 27 and 28 was based, in the reality of the case, on a presidential rather than a governmental initiative, the second of the two substantial defects that justified the declaration of unconstitutionality of Law No. 18/2026 would lose its textual basis.
3° A salutary reminder of editorial rigor. Whether the discrepancy stems, as seems most likely, from a simple typo in recital 25, or whether it reflects a more substantial ambiguity, it is up to legal scholars – and particularly to academics of public law – to objectify the question rather than leave it unanswered.
However, for the sake of completeness, it should be noted that the documents submitted to the file—official correspondence, amendment reports, bailiff's reports, and recordings of the plenary session of June 29—and recitals 24 and 27 all point to the Government having requested a blocked vote. Everything therefore suggests that recital 25 constitutes a clerical error in drafting without any bearing on the operative part of the decision, as the correct characterization of the facts is found elsewhere in the same reasoning.
But a decision of this magnitude - which censures a constitutional revision law and closes, at this stage, a major institutional project - would benefit from having this discrepancy clarified, if only for legal certainty and the clarity of the nascent constitutional jurisprudence in matters of review of revision laws.
In short, I repeat: this is in no way intended to call into question the authority of a decision which, according to Article 92, paragraph 4 of the Constitution, is binding on everyone. Rather, it is an invitation to my dear friends—Professors Babacar Kanté, Serigne Diop, Papa Demba Sy, and El Hadj Mbodj, as well as the entire constitutional legal community—to examine this specific section of the reasoning, between paragraphs 24 and 28, in light of the structure of Titles III and IV of our Constitution.
I also invite academics, legal practitioners, and citizens to take a rigorous and constructive look at these facts, each from their own perspective. It is in this way, and only in this way, that a solid constitutional law and a body of jurisprudence whose scientific authority equals its legal authority can be built.
Ousmane Sané Balama, Lawyer-Planter , Sanekunda, Djibélor
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