As soon as the results of the presidential election of February 24, 2019, were known, that is to say as soon as the re-election of President Macky Sall was recorded, the debate had resurfaced on his possible new candidacy in 2024. This debate began during the 2016 referendum for the revision of the Constitution. At that time, everyone agreed on the possibility offered, from the point of view of the Law, to President Macky Sall to be able to run if he wished, in 2019 and 2024. Moreover, eloquent statements remain in the archives.
We could certainly guess that Macky Sall was going to run again in 2019, but very few must have been already thinking about 2024. The assurances given by the person concerned could preclude consideration of this prospect. Macky Sallrepeated over and over that he had wanted, with the new Constitution, not only to permanently block the number of presidential mandates to two (and that the rule would apply to him), but also to reduce to five years the mandate he had obtained from voters in 2012 for a period of seven years. President Macky Sall was so enthusiastic about this strict presidential term limit, and he put his money where his mouth was. The original text of the draft constitutional reform included a specific provision that the current mandate (2012-2019) would be taken into account by the new revised Constitution and that President Sall even wanted to reduce his term from seven to five years. One can easily realise that in addition to President Sall‘s personal conviction, the tumult caused by the candidacy of Mr. Abdoulaye Wade in 2012 could be a deterrent or that the euphoria of his election had not yet dissipated. Only, the Head of State seemed to lose sight of an immutable principle in law which would like that a new law, other than a more lenient criminal law, could not be retroactive, that is to say apply and govern legal situations that preceded it.
As far as it was concerned, the Constitutional Council, called upon to examine the draft law on constitutional revision, before it was submitted to the referendum vote, had ruled that the proposed transitional provision constituted a real legal heresy and could prove to be a serious threat to the legal order. Thus, in its decision No. 1-C-2016 of 12 February 2016, still available on its website, the Constitutional Council stressed: « Considering that Article 6 of the draft which aims to redraft Article 27 of the Constitution, decreases the term of office of the President of the Republic from 7 to 5 years; Considering, furthermore, that a paragraph 2 is inserted in the said Article 27 which, in order to settle a question of transitional law, provides that the new provision on the duration of the term of office of the President of the Republic applies to the current mandate; Whereas the rule set out in paragraph 2, intended to establish a situation whose effects are limited in time and by nature temporary, will cease, once its purpose has been achieved, to form part of the legal order; Considering that, as such, it is incompatible with the permanent nature attached to Article 27 which the constituent power intends to make inviolable by placing it in the category of provisions not subject to review; Considering that this paragraph, which is very personal in nature, is irreconcilable with the general nature of the rules by which the Constitution organises the institutions of the Republic and protects the fundamental rights and individual freedoms of citizens; Considering that constitutional rules adopted in the required form are binding on everyone and, in particular, on the public authorities, which cannot paralyse their application by provisions which, by reason of their individual character, thereby infringe the Constitution by this alone; Considering that legal certainty and the stability of institutions, inseparable from the rule of law, the respect and consolidation of which are proclaimed in the preamble to the Constitution of 22 January 2001, constitute objectives with constitutional value which any revision must take into consideration, in order to be in conformity with the spirit of the Constitution; Considering that, in order to safeguard legal certainty and preserve the stability of the institutions, the law applicable to a situation must be known at the time when it arises; Considering that this right includes not only written constitutional rules, but also the practice accompanying them and precedents which enlighten public authorities on how to interpret them; Considering that at the time when the current mandate was conferred, the Constitution fixed the term of office of the President of the Republic at seven years; Considering, with regard to the modalities of applications in time of the revision laws affecting the duration of the current mandate of the President of the Republic, that precedents have succeeded one another consistently for twenty-five years; Considering that it follows from these precedents (…) that the mandate in force at the time of the entry into force of the revision law, which is essentially intangible, is beyond the scope of the new law; Considering that these precedents that have marked the constitutional history of Senegal are also observed in other States sharing the same legal tradition; Whereas neither legal certainty nor the stability of the institutions would be guaranteed if, on the occasion of changes in the majority, as a result of a political play or in particular according to circumstances, the duration of current mandates, duly fixed at the time when they were conferred, could, whatever the objective pursued, be reduced or prolonged.’ It is on the strength of this argument that the Constitutional Council had decided that « the transitional provision must be deleted; it is not in conformity with the spirit of the Constitution or with constitutional practice, since the new law cannot apply to the current mandate.« . The transitional provision will therefore be deleted from the text rewritten by the Constitutional Council and which will be submitted to the referendum vote.
It can be seen that by this decision, the Constitutional Council had gone against the wishes of President Macky Sall. It is then against his will that he will draw a mandate of seven years. The same situation was experienced with President Abdoulaye Wade from 2000 to 2007 and with Jacques Chirac (France) from 1995 to 2002. We had perceived this legal situation, even before the adoption of the referendum law revising the Constitution, which was adopted by 62.5% of the votes on March 20, 2016. In a text dated February 16, 2016, I announced: « Macky Sall, seven years or resignation after five years. » We stressed that the adoption of the constitutional revision would reset the clock of mandates to zero and that Macky Sall would be obliged to draw a seven-year term because the mandate obtained in 2012 could not be shortened, let alone be taken into account if the Senegalese people adopted the proposed revision. Better, it seems important to remember that on this same question, I had been asked by the Jeune Afrique magazine, to do an editorial and I indicated, on February 19, 2016, in an article entitled: « Macky Sall, the story of a promise impossible to keep, » that the Constitutional Council of Senegal cannot satisfy the desires or whims of President Sall. The paper also revealed the wrath of President Sall in May 2015, when, during a trip to Guadeloupe, I drew his attention to the inevitability that his will could not prosper before the Constitutional Council. I emphasised this issue in another column dated March 14, 2016, entitled « Beyond Our Persons. » Today, no serious jurist dares to argue otherwise. A new candidacy of President Sall in 2024 will have to obtain the anointing of the Constitutional Council as well as his opponents, including Ousmane Sonkoand Barthélemy Dias, certainly disillusioned, explained aptly at the time of the referendum of 2016. Now, they allow themselves to threaten to prevent a possible candidacy of Macky Sall! That will be another story. It remains to be seen whether Macky Sall himself will want to try the bet. In any case, many of his close ones urge him to do so.
Mbaye Ndiaye, the Swallow That Will Make Spring
It will be up to the citizen Macky Sall to determine personally to be a candidate or not. Will he have the will or the ambition? His companions do not seem to want to give him a choice. The director of the Structures of his party, the Alliance for the Republic (Apr), Mbaye Ndiaye, put his feet in the dish in the edition of Le Quotidien of November 11, 2022. The next day, November 12, 2022, crowds of militants gathered at the headquarters of the APR for the launch of the operations of party card sales had only one slogan, that of the candidacy of Macky Sall in 2024. Other circles such as the National Women’s Movement of the APR or some other officials speaking on their own behalf, designated him as their flag bearer for the next presidential election. Macky Sall seems to be the best chance of success for the APR and the Benno bokk yaakaar Coalition (Bby) for this electoral rendezvous.
In fact, on August 8, 2022, in a column, we evaluated « Macky Sall’s Chances for 2024 » to say that if by chance he was not a candidate, there would be a slew of applications within the Apr itself and from other entities of Bby. The risk would be the fragmentation of their electoral pool and that, as a result, it would be difficult or impossible for a candidate from the camp of the outgoing power to qualify for a second round. Macky Sall thus appears as the lifeline of the Apr and Bby, but the fact remains that he had promised, more than once, not to serve more than two terms at the head of his country.The dilemma is stubborn. Will he let his side sink to preserve his personal comfort or to fulfil a solemn commitment?What authority or ability does he retain to bring his camp to achieve unity around a candidate who could ensure victory?It should be noted that he did not manage to avoid dissension, quarrels and fierce positioning wars during the investitures in local or legislative elections. During the electoral jousts of January and July 2022, candidates from Bby, in many constituencies, suffered setbacks mainly because of the overt hostility of their comrades on the same political side.Moreover, will Macky Sall let Senegal run the major risk of falling into the hands of an adventurer like Ousmane Sonkowho lies, outrages, insults and denigrates as his political credo and who already publicly threatens to settle scores with police, gendarmes, magistrates, other officials or any other citizen who is not from his political camp? It is not certain that all these beautiful people will obediently allow themselves to be sacrificed in such an unfair way. In addition, last week, we stressed in these columns: « If in 2024 Ousmane Sonko has the chance to become President of Senegal, it will inevitably be a self-humiliation for his people who will be ashamed to see the sexual anatomical or images of the intimate anatomy of the first citizen on the smartphones of his compatriots. He will be « a naked president. » God forbids!
Many opponents also fear this possibility of an Ousmane Sonko in power and would perhaps be better satisfied with a Macky Sall for another five-year term which should be the ultimate. It would be easier to let him « heat up » the place for five years, rather than see an autocrat install who should stay longer. Indeed, some destinies of presidencies will not be able to survive until 2034.
By Madiambal DIAGNE / mdiagne@lequotidien.sn
- Translation by Ndey T. SOSSEH / Serigne S. DIAGNE