Law No. 11/2026 on electoral ineligibility: between a declared victory and profound legal weaknesses

Legal and political analysis By Amy CISSÉ -- Political scientist & Lawyer by training |

Communications Consultant

Dakar, May 12, 2026

Preliminary note: This analysis does not take sides with any political camp. It examines the legal texts in force, the constitutional mechanisms, and the strategies at play. Its aim is to provide citizens, decision-makers, and political actors with the tools to understand a situation that is as complex as it is crucial for the democratic future of Senegal.

Summary

The National Assembly of Senegal adopted on second reading, on May 9, 2026, draft law no. 11/2026 amending the Electoral Code, notably by rewriting Article L29 and repealing Article L30. This text, presented as a reform modernizing the conditions of ineligibility, in reality crystallizes an institutional power struggle with major electoral stakes for the 2029 presidential election. Analysis of the texts

The constitutional provisions, the rules of procedure of the National Assembly, and the general principles of law reveal significant procedural and substantive weaknesses, some of which could be enough to neutralize the most anticipated effect of this reform. This analysis outlines the mechanisms, risks, and corrective measures for each of the stakeholders.

1. The context: a mathematical calculation, not an ideology

To understand the urgency with which this law was passed, one must start with the texts and dates, not the political positions.

Ousmane Sonko, Prime Minister and leader of the PASTEF party, was definitively convicted on January 4, 2024, by the Supreme Court of Senegal for defamation against former minister Mame Mbaye Niang. The sentence handed down: six months' imprisonment, suspended, and 200 million CFA francs in damages (judgment upheld, appeal rejected on July 1, 2025).

Pursuant to the former Article L30 of the Electoral Code (Law No. 2021-35 of July 23, 2021), any conviction resulting in a fine exceeding 200,000 CFA francs automatically disqualifies someone from holding office for five years. This disqualification therefore runs from January 4, 2024, to January 4, 2029.

Article 29 of the Senegalese Constitution stipulates that candidacies for the presidential election must be filed with the registry of the Constitutional Council between sixty and seventy-five days before the first round of voting. Article 31 of the same Constitution sets the date for the election to be held between thirty and forty-five days before the expiration of the presidential term.

With Bassirou Diomaye Faye's term expiring on March 24, 2029, the election will be held between February 7 and 22, 2029. The window for submitting candidacies will therefore be approximately between November 9 and December 24, 2028.

The facts are simple: Sonko's ineligibility expires on January 4, 2029, eleven days after the closing of the candidacy filing period. Without legislative amendments, he is constitutionally unable to submit his candidacy for the 2029 presidential election. This, and nowhere else, is the reason for the urgency.

1. What the law says before and after

The state of the law prior to

Article L29 of the Electoral Code in its original version (Law No. 2021-35) provided for automatic and permanent ineligibility for any person sentenced to more than three months' imprisonment without suspension, or to more than six months' imprisonment with suspension. This sanction applied automatically, without the need for a criminal court ruling; this is known as an automatic ancillary penalty.

Article L30 supplemented this system by stipulating a five-year ineligibility period for anyone convicted of a fine exceeding 200,000 CFA francs. It was this provision, applied to Sonko's conviction, for which he was ordered to pay 200 million CFA francs in damages, that led to his ineligibility and the exclusion of his candidacy in 2024.

What changes under Law No. 11/2026

The new system adopted on May 9, 2026, in its version resulting from the second reading, comprises three main elements.

Firstly, Article L29 is entirely rewritten to restrict exclusions to crimes and certain serious offenses punishable by more than one month of imprisonment: theft, fraud, breach of trust, embezzlement of public funds, corruption, and money laundering. Defamation is no longer included.

Secondly, Article L30 is simply repealed. The threshold of 200,000 CFA francs disappears from positive law.

Thirdly, and this is the most sensitive provision, Article 2 of the law stipulates that the new rules apply to situations that existed before its entry into force, which is known in law as a retroactive clause. It is on this point that the most profound weaknesses lie.

1. The chessboard of constitutional deadlines

The mechanics of time limits are at the heart of this institutional clash. Here is a precise map of them, based on articles 72, 74 and 75 of the Constitution.

From the date of the final adoption of a law, the President of the Republic has six clear days to refer the matter to the Constitutional Council on the grounds of unconstitutionality. The promulgation period, eight clear days, begins to run upon the expiration of this appeal period. If the President neither promulgates nor refers the matter to the Council, promulgation becomes automatic and is carried out by the President of the National Assembly.

Following the first vote on April 28, 2026, the deadline for referral had expired on May 4. The promulgation period ran until May 13. It was within this window, on May 7, that the President of the Republic requested the second reading, suspending the promulgation countdown with approximately six days remaining.

Following the second reading on May 9, 2026, these six days have resumed. The President therefore has a new window to refer the matter to the Constitutional Council, open until around May 16, 2026, and a promulgation period running until approximately May 25. After this deadline, the President of the National Assembly could promulgate the law automatically.

1. The central flaw: retroactivity in the face of a final conviction

This is where the analysis reveals its most decisive dimension.

The retroactivity clause introduced by Article 2 of Law No. 11/2026 is presented as an application of the principle of retroactivity of the more lenient criminal law, known as the principle of mitior lex, enshrined in Article 15§1 of the International Covenant on Civil and Political Rights: "If, subsequent to the offence, the law provides for the application of a lighter penalty, the offender shall benefit from it."

This principle is well established in criminal law. However, its application to the present case encounters a fundamental limit that the texts clearly state: the more lenient criminal law applies to acts committed before its entry into force, provided that these acts have not been definitively judged.

Sonko's conviction has been final since January 4, 2024, confirmed by the rejection of the appeal on July 1, 2025. The principle of mitior lex, in its textual formulation, does not apply to convictions that have already become res judicata.

The only exception recognized by law concerns the removal of the offense itself: "The sentence ceases to be enforceable when it has been pronounced for an act that no longer constitutes a criminal offense." However, Law No. 11/2026 does not abolish the offense of defamation; it merely modifies its electoral consequences. Therefore, this exception does not apply.

Article 2 of the law does not, therefore, technically constitute a mitigation of the law in the legal sense. It creates an explicit retroactive effect of legislation on the electoral consequences of a final conviction. This construction is legally questionable on two grounds: firstly, with regard to the principle of legal certainty, which in principle prohibits modifying definitively established legal situations; and secondly, with regard to the principle of equality of candidates, which requires that eligibility rules be stable and predictable.

The Senegalese Constitutional Council did indeed validate, in its decision no. 1/C/2025 of April 23

In 2025, the law would retroactively implement legislative measures restoring civic rights within the framework of an amnesty law. However, an amnesty law erases the conviction itself, which Law No. 11/2026 does not, leaving the conviction intact and merely modifying its electoral effects. The transposition of this precedent is not automatic.

1. Strengths, weaknesses, and strategies: what each player should do

The President of the Republic

The President currently holds the most powerful lever: the decision to refer the matter to the Constitutional Council in the coming days, and on what grounds.

If he appeals to the Constitutional Council solely on Article 2, arguing that it violates the principles of legal certainty and equality of candidates, he will likely obtain the censure of that single provision. The law is promulgated, but without retroactive effect. Sonko remains ineligible for 2029. The President has not appeared as an opponent of a general reform of ineligibilities, but rather as a guarantor of the Constitution.

If he does not refer the matter to the Constitutional Council and promulgates the law as is, he will transfer the battle to the Constitutional Council in 2028, when Sonko files his candidacy. The outcome remains uncertain, but the weaknesses in Article 2 that we have identified could lead the Council to reject this candidacy, even under the new law.

His mistake in this case was not having referred the matter to the Council during the first deadline, before May 4, 2026. The request for a second reading, whether strategic or not, allowed him to recover a window that he had let slip away.

PASTEF and its MPs

The PASTEF parliamentary group enjoys a comfortable majority and undeniable legislative legitimacy. However, Law No. 11/2026, as adopted, contains two major weaknesses that a competent opponent could exploit.

The first is substantial: Article 2 cannot, as the law stands, produce the expected effect on a final conviction, unless the Constitutional Council decides to extend the precedent of its 2025 decision, which is not a given.

The second is strategic: by not removing the offense of defamation itself from the Penal Code, the promoters of the law left intact the only way that would have definitively solved the problem, regardless of any debate on retroactivity.

The correction to be made is twofold: on the one hand, to introduce a new bill removing defamation as a cause of ineligibility directly from the Penal Code, this route activates the exception of removal of the offense, the only exception recognized by the texts for final convictions; on the other hand, to ensure that any future legislative procedure scrupulously respects the deadlines and forms of the Rules of Procedure, in order to deprive the adversary of any procedural means.

Ousmane Sonko

The Prime Minister has no direct legal leverage in this process. He cannot refer the matter to the Constitutional Council, nor can he influence the promulgation. His position depends entirely on the decisions of other actors.

His only legally reliable solution remains the removal of the offense of defamation as a cause of ineligibility, a more ambitious legislative approach, more exposed to constitutional control, but the only one capable of removing the obstacle created by the finality of his conviction.

1. The institutional lesson

This legal saga illustrates a fundamental truth of constitutional law: passing a law is not enough to achieve a political objective. The procedure, the precision of the text, and the anticipation of constitutional review are as crucial as the vote itself.

In established democracies, electoral laws are traditionally drafted by consensus among political forces, precisely to shield them from constitutional challenges. The haste with which this reform was carried out has had the opposite effect: a law has been adopted, but it is legally fragile on several levels.

For both sides, the real battle is not the one on May 9, 2026. If the law is enacted as is, it will be fought before the Constitutional Council in November or December 2028, when Sonko submits his candidacy. Until then, each side has the necessary time to correct its mistakes or make new ones.

In this institutional power struggle, the least rigorous will lose.

In short, for those who want the essentials

Five points summarize the situation:

1. Without a new law, Sonko cannot run in 2029: his ineligibility expires eleven days after the close of candidate registration. The problem is mathematical, not political.
2. Law No. 11/2026 changes the rules of ineligibility and includes a retroactive clause (Article 2) intended to apply immediately to his situation.
3. This clause is legally questionable. The principle of retroactive application of more lenient criminal law does not apply to final convictions under current legislation. The law has a flaw at the very heart of what mattered most.
4. The President of the Republic has until around May 16, 2026, the option of referring this loophole to the Constitutional Council. If the Council strikes down Article 2, the law will pass but without retroactive effect, and Sonko will remain ineligible for the 2029 elections.
5. The safest path for PASTEF remains the removal of the offense of defamation as a cause of ineligibility in the Penal Code, a separate law, more difficult to pass constitutionally, but the only one that definitively solves the problem.

Legal sources (versions in force on 9 May 2026): Senegalese Constitution, Constitutional Law No. 2024-15 of 19 December 2024 · Electoral Code, Law No. 2021-35 of 23 July 2021 · Rules of Procedure of the National Assembly, Organic Law No. 2025-11 of 18 August 2025 · Organic Law No. 2016-23 of 14 July 2016 relating to the Constitutional Council · ICCPR, Article 15 · Decisions of the Constitutional Council No. 1/C/2024 of 15 February 2024 and No. 1/C/2025 of 23 April 2025.

Verifiable texts are available at: conseilconstitutionnel.sn · vie-publique.sn · primature.sn · assemblee.sn

Amy Cissé (MyaQueen)