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Exploring the Legal and Political Consequences of the Postponement of Senegal’s Presidential Election

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Introduction

Two of the basic tenets of democracy are free and fair elections, which entails that elections be regular and fixed according to the law, and citizen’s participation, which involves citizen’s voting for a candidate of their choice, peaceful protests, and holding the candidates they have voted for to account. Where elections are irregular and left to the caprices of a few, they cannot be said to be free, and where citizens cannot exercise the right to choose their leaders, the aim of that society being democratic has been defeated. The world was greeted with the news that President Macky Sall of Senegal had signed a decree to abolish the electoral decree that fixed the date for the Senegalese presidential elections for February 2024, effectively throwing the country into a Constitutional and Electoral crisis. Senegal has always had the reputation of being a stable democracy in a region plagued with military coups and illegitimate tenure elongation. In the 1960s to 1980s, when coups were happening across Africa, Senegal avoided it all and remained the only country in West Africa with no military coup to date. Unlike its neighbours, Senegal has had a long history of democracy since its independence. It is a beacon of uninterrupted democratic transition from one person to the other through elections. Its Constitution proclaims the unassailability of national sovereignty, expressed through transparent and democratic procedures and consultations. All these are in danger with the indefinite suspension of the Presidential election and subsequent extension of the tenure of President Macky Sall by the National Assembly.

Political Context

To put the democratic system of Senegal in context, there are over seventy political parties. Senegal, a multi-party democracy, operates a semi-presidential system of government where the president is the head of state, and the prime minister is the head of government and is appointed by the president. Senegal operates a unicameral legislature, although it has fluctuated between bicameral and unicameral legislatures. However, it has retained a unicameral parliament since 2012.  Before the restoration of the 5-year term of office for President in 2016, Former President Wade had, through the National Assembly, changed the term of office from 5 years to 7-years in 2008.  The National Assembly is also elected for a term of five years. Senegal’s Electoral Management body is its Ministry of Interior, which has a Directorate for Elections charged with conducting National and Local elections and referendums. The Autonomous National Electoral Commission (CENA) also monitors the polls. 

In 2012, Macky Sall contested against the incumbent President Abdoulaye Wade; the first ballot did not throw up a winner, and to get a clear win, Sall entered into a coalition with other opposition parties, and one of the grounds for support was that he would return the term of office for President to the five years which the 2001 Constitutional had stated and which President Wade had illegally extended to seven years. In 2016, a referendum was held, and the Senegalese people wholly voted for a five-year term for President with a limit to two terms. President Sall was re-elected in 2019. He immediately started arguing for a second term in office, arguing that since the Constitution was amended in 2016, it effectively covered the term from 2019 to 2024. In July 2023, he laid to rest the suspicion that he would be contesting for an unconstitutional third term in office. 

After releasing the final list of candidates screened to contest the President Elections, where a leading opposition figure, Ousmane Sonko, and a son of former President Wade,  Karim Wade, were left out of the list,  two members of the Judicial Constitutional Council charged with the legal duty of screening the candidates were accused of corruption. As this controversy was ongoing, the world woke up on 5 February with President Sall calling off the Presidential election slated for 25 February 2024 and the Parliament extending his tenure, which was meant to end in April 2024, by six months while fixing Presidential elections for 15 December 2024. The President’s and the legislature’s actions have thrown Senegal into a Constitutional crisis.

Exploring the Legal and Political Consequences of the Postponement of Senegal’s Presidential Election
Source: bbc.com/news/world-africa-38496786

Legal Context

To understand the effect of the President and National Assembly’s actions and how they pose a danger to democracy in Senegal, we need to understand the powers granted to them by the Constitution. Article 91 of the Constitution of Senegal gives the Constitutional Council the powers to regulate national elections and proclaim the results, including fixing the dates for them. The actions of the other two arms of government jeopardize the electoral process and infringe on sacred democratic principles of checks and balances. Democracies work because of the strict separation of powers and the principles of checks and balances. These two principles have served as a buffer against the tyranny of one or all arms of government. Absolute power corrupts. Presidents should not have the power to change laws, especially not electoral laws, single-handedly, and in this instance, the actions of President Sall infringe the Senegalese Constitution. The actions of the National Assembly go contrary to Article 103(7), which states that the president’s tenure cannot be subjected to an amendment. Section  103 (7)  was placed to prevent abuse of power as there is a historical basis and argument for it; the tenure of the President, according to Article 27, is five years and not beyond two consecutive terms, and as such, President Sall ought to vacate office in April.  Beyond National laws, the President and National Assembly have also run foul of international conventions, which Senegal affirms in the preamble of its Constitution, notably the Universal Declaration of Human Rights, the African Charter on Human and Peoples Rights, ECOWAS Protocol on Democracy and Good Governance, and the International Convention on Civil and Political Rights (ICCPR) which it ratified in 1978, all these human rights conventions provide that all people have the right to determine who leads them. Article 25 of the ICCPR states that every citizen shall have the right and opportunity “To take part in the conduct of public affairs, directly or through freely chosen representatives and to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”Since the announcement of the postponement, there has been an increase in harassment of opposition candidates, activists, and protesters and attempts to silence the media and free speech. Walfadjri, one of the major media, was taken off the air because they broadcast the protests; candidates who insist on holding campaigns have been harassed and arrested by government security agents. In general, due to the crisis, there is an increase in infringements of citizens’ fundamental rights. President Macky Sall and the National Assembly must retrace their steps and allow the Constitution to prevail by holding elections as activists, opposition leaders, and regional/international bodies demand.

Recommendations

The regional economic and political union, the Economic Community of West African States (ECOWAS), has urged Senegal to return to the timetable that set elections for 25 February 2024; it has also called for an emergency session over the crisis and issue of three member states submitting their intention to withdraw from the Union. However, it must take decisive but careful steps to get Senegal back on its democratic journey and bring stability to the country. This could be done through negotiation and mediation, imposing penalties, and imposing economic sanctions where that does not work. We align with the sanctions and penalties where democracy is abruptly ended or interrupted as outlined under Article 45 of the ECOWAS protocol on democracy and good governance. These include:

  1. ECOWAS should immediately encourage the president and parliament to reverse their decision as it is anti-democratic.
  2. Refusing to support Senegal or any State it recommends for elective posts in international organisations;
  3. Refusing to organise ECOWAS meetings in Senegal, cutting them out of activities that may benefit them, and
  4. Suspension of Senegal from all ECOWAS decision-making bodies. 

Internally, Senegal has to ensure this does not happen again by making legal and regulatory changes. This could come in the form of merging the Directorate for Elections with the Autonomous National Electoral Commission (CENA) and granting it exclusive powers to set the dates for elections, conduct elections, and screen candidates for elections. This new body should be given powers free from government interference.

Conclusion

There has been a rise in military coups in West Africa in the last four years, namely Mali, Guinea, Burkina Faso, and Niger. What these four countries have in common, along with Senegal, is their common colonial history when juxtaposed with the rise in nationalism worldwide and the increase in countries abandoning core democratic principles. There is a need to ensure Senegal returns to stability. While a military coup is less likely in Senegal due to its history, the country could face a potential political crisis due to the indefinite postponement of the elections, leading to other conflicts. Civil society organizations operating in Senegal and the region must continue to advocate for presidential elections to be held and subsequently for change in laws and policies through constitutional amendments and change in electoral laws.


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