Le Conseil constitutionnel : de l'audace à l'esquive (Juge DEME)
On February 15, 2024, the Senegalese Constitutional Council surprised everyone with its boldness. Faced with a major institutional crisis, it fully assumed its mission as guardian of the supremacy of the Constitution and regulator of the functioning of institutions.
On June 17, 2026, having received an appeal against the decision of the Bureau of the National Assembly to reinstate Mr. Ousmane Sonko as a deputy, the same institution seems to have taken the opposite path.
The Council did not rule on the merits of the dispute. It declared itself incompetent.
At first glance, this might seem like a purely technical decision. In reality, it raises a far more fundamental question: what is the Constitutional Council's current understanding of its role and its own jurisprudence? This debate deserves to be held.
The applicants did not base the Council's jurisdiction solely on Article 92, paragraph 3 of the Constitution, concerning its role as the judge of the regularity of national elections. They also invoked Article 2 of the organic law relating to the Constitutional Council, as well as two major decisions of Senegalese constitutional jurisprudence: Decisions No. 08/2017 of July 26, 2017, and No. 1/C/2024 of February 15, 2024.
Their reasoning was twofold. Firstly, the Council is the judge of the regularity of the election of members of parliament. Secondly, it is the guardian of the Constitution and the regulator of the functioning of the institutions.
But it is precisely on this second basis that the Council's silence is striking.
The decision of June 17, 2026, addresses exclusively the argument based on electoral jurisdiction. It reiterates that the electoral judge's role ends with the final proclamation of the results and that the contested decision was issued well after the November 2024 legislative elections. This argument is legally sound, but insufficient.
Because the appeal did not only raise an electoral difficulty. It also, and above all, raised a constitutional problem directly affecting the functioning of the institutions of the Republic.
The reinstatement decision of May 24, 2026, called into question several fundamental principles: the separation of powers, the rules governing parliamentary and ministerial incompatibilities, and respect for the internal legality of the National Assembly with regard to its own rules of procedure. In other words, the debate concerned the conformity of an institutional act with the requirements of the Constitution, that is to say, an area where the institutional regulatory function of the Constitutional Council finds its very purpose.
How, in such a context, can the Constitutional Council disregard its own paragraph 19, its landmark decision of February 15, 2024, concerning the postponement of the presidential election, in which it 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 functioning”? With this solemn affirmation, the Council was to definitively break with a jurisprudence of incompetence by establishing a dynamic conception of its mission as guardian of constitutional order, enabling it to intervene whenever a major institutional crisis threatened the normal functioning of public authorities.
Paradoxically, the Council chose to sidestep this fundamental question. It preferred to shift the debate to the legal nature of the contested act in order to conclude that it lacked jurisdiction.
This approach reflects a strategy of avoidance: resolving the matter through a procedural solution rather than a substantive response. This tactic is not new in the history of constitutional litigation. When the Constitutional Court did not wish to rule on a sensitive issue, the plea of lack of jurisdiction offered a convenient escape route. The result is that the constitutional question remains unresolved.
Even more surprising is the position defended by Mr. Ousmane Sonko in his response memorandum. He maintains that the Constitutional Council "cannot be called upon to rule on cases other than those expressly and exhaustively provided for by the Constitution and the organic law."
Such a position is bound to raise eyebrows. His defense of the legality of his reinstatement falls within the bounds of normal debate. But supporting a restrictive interpretation of the Constitutional Council's powers is far more problematic.
For many years, those currently in power, along with the opposition, law professors, and members of civil society, denounced the Constitutional Council's repeated declarations of incompetence when these declarations prevented effective oversight of actions that could undermine the Constitution and its institutions. They called for a more courageous constitutional judge, one more protective of liberties and more attentive to preserving the rule of law. It would be paradoxical, to say the least, if those who yesterday fought against the culture of incompetence were today to become the architects of its revival.
For this is indeed the real issue at stake in this case. The question was not simply whether or not Mr. Ousmane Sonko could regain his parliamentary seat. The question was above all whether the Constitutional Council intended to continue the jurisprudential evolution initiated on February 15, 2024, or whether it would choose to revert to a formalistic and restrictive interpretation of its powers.
The decision of June 17, 2026 unfortunately provides a worrying answer with the return of a jurisprudence of incompetence.
Ultimately, this case raises a simple question: when a serious constitutional difficulty arises in the functioning of institutions, who should be aware of it if the Constitutional Council itself refuses to take it up?
By declaring itself incompetent, the Council not only closed a legal debate, but also abandoned its jurisprudential ambitions and left a major constitutional question unanswered.
That is why the decision of June 17, 2026 will be remembered less as a decision relating to the parliamentary situation of Mr. Ousmane Sonko than as a moment of truth for Senegalese constitutional justice.
On February 15, 2024, the Council took a giant step forward by broadening the scope of its mission. On June 17, 2026, it narrowed it by taking two steps backward.
Each person will appreciate which of these two approaches best serves the authority of justice and the supremacy of the Constitution.
Ibrahima Hamidou Deme,
President of the ETIC party
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