Rédaction Africa Links 24 with pierre Dieme
Published on 2024-03-11 23:28:58
After an initial interruption, the process leading to the election of the future President of the Republic was relaunched by the signing of decrees No. 2024-690 and 2024-691 on March 6, 2024, setting the date of the presidential election for Sunday, March 24, 2024, and convening the electoral body. While the electoral campaign has started well, political parties have deployed on the ground, and the international community congratulates the Senegalese people for their democratic maturity, a supposedly democratic Front working for an “inclusive election” (FDPEI) – led by the Senegalese Democratic Party (PDS) and some candidates dubbed “disenfranchised candidates” – is multiplying its efforts to sabotage the process in hopes of hypothetically participating in the election. To achieve this, the Front had promised to file an annulment appeal accompanied by a request for a suspension of execution aimed at suspending the implementation of the decrees. This is exactly what they have done! It is worth noting from the outset that the petitioners do not have the status of candidates in the presidential election. Their candidacies were invalidated by the only jurisdiction authorized to do so: the Constitutional Council. In our humble opinion, it is difficult to see how their approach could succeed.
**On the appeal for excess of power**
The Supreme Court has jurisdiction to hear appeals for annulment of administrative acts taken by executive authorities under certain conditions. In this contribution, we will focus less on reviewing all the conditions that lead to the annulment of an administrative act and more on demonstrating the fragility of the appeal filed.
**1. The attacked act must have the character of a unilateral administrative act**
Administrative bodies can adopt non-administrative acts alongside their administrative acts. Similarly, non-administrative bodies can adopt administrative acts alongside their non-administrative acts. Only administrative acts, regardless of their authors, can be subject to an annulment appeal (REP). Among the non-administrative acts taken by executive authorities are private law acts, government acts, etc. Regarding “government acts,” it is important to note that they benefit from judicial immunity, meaning they cannot be censored before the administrative judge. They are said to be non-justiciable. The judge for excess of power has already ruled that the decree convening the electoral body and the one fixing the election date are government acts. In its ruling of March 17, 2016, Ousmane Sonko v. State of Senegal, the Supreme Court stated: “In this case, the petitioner seeks the annulment, on the one hand, of the decree fixing the date of the referendum and convening the electoral body, an act that falls within the constitutional powers of the President of the Republic, and on the other hand, of the decree organizing the referendum, which is an act carried out by the government in preparation for the consultative referendum, and finally, of the decree publishing the draft constitutional revision law, which is an act of the executive in its relations with national sovereignty; [q] these decrees thus constitute government acts not subject to appeal for excess of power.”
From this perspective, this jurisprudence clearly undermines the Front’s efforts. One could reasonably compare the legal regime of government acts to that of constitutional laws. The Constitutional Council refuses to censor them, regardless of their content, because the Constituent is sovereign, subject to the temporal, procedural, and material limits set by the Constitution. One could have stopped there, but let’s go further.
**2. The attacked act must cause harm**
For a unilateral act taken by the administration to be considered an administrative act, it must cause harm, meaning that it modifies the legal framework. In other words, the act must infringe on the rights of the administrators. This is why notes, instructions, interpretive circulars, internal measures, preparatory acts, and informative acts cannot be the subject of an annulment appeal. How do these decrees harm these non-selected candidates? It is important to remember that only the Constitutional Council has the authority to determine the list of candidates. They have done so. Karim Wade and the other plaintiffs are not part of it. De facto and de jure, they have the same status regarding this election as any other Senegalese. They are voters, nothing more and nothing less! Under these conditions, if the decrees were annulled, their voting rights – the only right they have in this case – would be affected. It would also be the case for the millions of Senegalese waiting for March 24 to exercise their constitutional right. Having no other right to preserve by annulling the decrees, it cannot be said that these decrees have harmed them or others. What non-candidate citizen would feel disadvantaged because the electoral body was convened or the election date was set?
It is for these reasons that these two types of decrees could legitimately be considered as “government acts”. In contrast, the decree issued by President Macky Sall to revoke the first decree convening the electoral body followed a different logic. This decree had infringed on the voting rights of Senegalese by depriving them of the opportunity to choose a President for the next five years. It had caused harm. One could say that it was indeed an administrative act that the Supreme Court could have annulled. But the Constitutional Council took care of that.
**3. The condition of the right to act**
Another condition that could thwart the Front’s efforts is that to bring an action, one must have the “right to act” and an “interest to act.” There is a saying, “no interest, no action”! There is no need to dwell on the quality. To justify an interest in acting, the action taken must be intended to obtain an advantage or to protect oneself from harm. How would the annulment of the decrees be advantageous for non-candidates? Would it have the consequence of giving them a chance to participate in the election on an equal footing with the other selected candidates? The answer is no! The Constitutional Council clearly stated that except in cases of the death of a selected candidate (article 29 of the Constitution), the inclusion of other candidates on the list is impossible. Furthermore, what harm are they seeking to avoid by seeking to suspend or annul the decrees? One could say there is none. It is not so much the decrees in question that deprived them of the right to participate in the election as candidates, but rather the decision of the Constitutional Council. The petitioners do not have an interest in acting as a consequence.
**On the request for suspension of execution**
An appeal for excess of power (REP) can be accompanied by a request for suspension of execution to suspend the implementation of the administrative act. In this case, it concerns the decrees. However, there are conditions to be met (art. 84 of the organic law on the Supreme Court). There must be a need for urgency to justify the suspension of execution and a serious doubt about the legality of the attacked act. Let’s keep it simple, considering the previous developments. Even if there was urgency and a serious doubt about the legality of the decrees, they would have needed to be administrative acts for the administrative judge to grant a suspension of execution.
**The appeal touches on the relationship between the Constitutional Council and the Supreme Court**
According to Article 92 of the Constitution, the decisions of the Constitutional Council are binding on all public authorities (Executive, Legislative, and Judiciary) as well as administrative and judicial authorities. The high jurisdiction has already established the list of candidates without Karim Wade and the other petitioners. It even had, by replacing the President of the Republic, to set the election date and convene the electoral body. It has also arrogated itself full jurisdiction over national elections (legislative and presidential). In this regard, it controls all administrative acts related to national elections. This should logically render the Supreme Court incompetent – at least it could declare itself incompetent, within the framework of a constructive “dialogue of judges” after the Council has affirmed its “full competence” by controlling a decree nullifying another decree convening the electoral body – to avoid any misunderstanding between the two courts. The Court and its authorities must comply with the decisions of the Constitutional Council as it is part of the judicial power. However, the Council has implicitly validated the disputed decrees through its latest “autonomous decision” made public in a press release dated March 7, 2024. How could it (the Supreme Court) order the suspension of execution or annul the decrees without violating Article 92 of the Constitution?
**Ibra Faye, Doctor of Public Law**
Read the original article(French) on Dakar Matin
