Senegal’s constitutional council faces scrutiny over sonko’s parliamentary return

The Constitutional Council: from boldness to evasion
 
The Senegalese Constitutional Council demonstrated remarkable assertiveness on February 15, 2024. During a significant institutional crisis, the esteemed body fully embraced its role as the ultimate guardian of constitutional supremacy and the regulator of state institutions.

However, a different approach emerged on June 17, 2026. When presented with an appeal challenging the National Assembly Bureau’s resolution to reinstate Mr. Ousmane Sonko as a deputy, the same institution appeared to take an opposing path, opting to declare itself without jurisdiction rather than addressing the core of the dispute.

While this might initially seem like a mere technical ruling, it, in fact, brings to light a much more profound question: how does the Constitutional Council currently perceive its own function and its established legal precedents? This crucial discussion warrants attention.
The debate merits consideration.

The petitioners had not solely based the Council’s jurisdiction on Article 92, paragraph 3 of the Constitution, which pertains to its authority as the judge of national election regularity. They also cited Article 2 of the organic law governing the Constitutional Council, alongside two landmark decisions in Senegalese constitutional jurisprudence: ruling No. 08/2017 from July 26, 2017, and ruling No. 1/C/2024 from February 15, 2024.

Their argument unfolded in two phases: firstly, the Council serves as the arbiter for the legitimacy of deputies’ elections; secondly, it functions as the protector of the Constitution and the overseer of institutional operations.


It is precisely concerning this secondary foundational role that the Council’s silence is particularly notable.
The decision issued on June 17, 2026, exclusively addresses the argument related to electoral competence. It reiterates that the Council’s role as an electoral judge concludes with the definitive proclamation of results, and the contested decision occurred long after the legislative elections of November 2024. While this reasoning holds legal consistency, it falls short in scope.

The appeal, however, transcended a mere electoral issue. Crucially, it raised a significant constitutional concern directly impacting the operational integrity of the Republic’s institutions.
The reintegration decision of May 24, 2026, indeed challenged several fundamental principles: the separation of powers, the regulations concerning parliamentary and ministerial incompatibilities, and adherence to the National Assembly’s internal legality as defined by its own rules of procedure. In essence, the core of the debate revolved around whether an institutional act conformed to constitutional requirements – a domain where the Constitutional Council’s function of institutional regulation finds its fundamental purpose.

In such a critical context, how could the Constitutional Council disregard its own considerant 19 from its pivotal decision on February 15, 2024, concerning the postponement of the presidential election? In that ruling, it unequivocally stated: « In light of the spirit and letter of the Constitution and the law pertaining to the Constitutional Council, the Council must always be capable of exercising its regulatory power to safeguard the general interest, public order, peace, institutional stability, and the continuity of their functioning ». Through this solemn declaration, the Council was expected to definitively abandon a jurisprudence of incompetence, embracing a dynamic interpretation of its role as guardian of the constitutional order, thereby enabling intervention whenever a major institutional crisis threatened the normal operation of public authorities.

Paradoxically, the Council opted to sidestep this fundamental question, choosing instead to shift the discourse towards the legal classification of the contested act to declare its own incompetence.

This maneuver reflects an avoidance strategy: resolving the matter through a procedural solution rather than a substantive answer. Such a tactic is not unprecedented in the annals of constitutional litigation. When a constitutional judge prefers not to rule on a sensitive issue, the path of incompetence offers a convenient escape. Consequently, the core constitutional question remains unresolved.

Even more surprising is the stance articulated by Mr. Ousmane Sonko in his response brief. He contended that the Constitutional Council « cannot be called upon to rule on cases other than those expressly and restrictively stipulated by the Constitution and the organic law ».

Such a position invariably sparks astonishment. While defending the legality of his reintegration is part of a standard adversarial debate, advocating for a restrictive interpretation of the Constitutional Council’s powers is considerably more problematic.

For many years, those who currently hold power, alongside the opposition, legal scholars, and civil society members, vociferously condemned the Council’s repeated declarations of incompetence, particularly when these hindered effective oversight of actions potentially undermining the Constitution and institutions. At that time, they demanded a more assertive constitutional judge, one more vigilant in protecting liberties and upholding the rule of law. It would be, to say the least, ironic if those who once fought against the culture of incompetence were now to become its proponents.

Indeed, this is the true essence of the matter. The question was not merely whether Mr. Ousmane Sonko could reclaim a deputy’s seat. More significantly, it was about whether the Constitutional Council intended to continue the jurisprudential evolution initiated on February 15, 2024, or if it would revert to a formalistic and constrained understanding of its mandate.

Regrettably, the June 17, 2026 decision provides a worrying answer, signaling a return to a jurisprudence of incompetence.

Ultimately, this case presents a straightforward inquiry: when a serious constitutional difficulty arises in the functioning of institutions, who is meant to address it if the Constitutional Council itself declines jurisdiction?

By declaring itself incompetent, the Council did more than just conclude a judicial debate. It abandoned its jurisprudential ambition and left a critical constitutional question unanswered.

Therefore, the decision of June 17, 2026, will be remembered less as a ruling concerning Mr. Ousmane Sonko’s parliamentary status and more as a pivotal moment for Senegalese constitutional justice.

On February 15, 2024, the Council made a monumental leap, broadening the scope of its mission. On June 17, 2026, it regrettably narrowed it, taking two steps backward.

It is for each observer to determine which of these two stances better upholds the authority of justice and the supremacy of the Constitution.