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«KONRAD ADENAUER STIFTUNG AFRICAN LAW STUDY LIBRARY Volume 12 Edited by Hartmut Hamann, Ibrahima Diallo and Chadidscha Schoepffer Hartmut Hamann is a ...»

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KONRAD ADENAUER STIFTUNG

AFRICAN LAW STUDY LIBRARY

Volume 12

Edited by Hartmut Hamann, Ibrahima Diallo and

Chadidscha Schoepffer

Hartmut Hamann is a lawyer specialized in providing legal support for international

projects between states and private companies, and in international arbitration

proceedings. He is a professor at the Freie Universität Berlin, and at the Chemnitz

University of Technology, where he teaches public international law and conflict resolution. His legal and academic activities often take him to Africa.

Since 2001 Ibrahima Diallo has been a research assistant specializing in public law at the University Gaston Berger of Saint Louis. He currently teaches public law and his research field is comprised of the following: the constitutions, fundamental rights, the state, decentralization, administrative and constitutional jurisdictions, public commercial law and public finances. He has published several books: the Law of Regional Authorities in Senegal (L’Harmattan 2008) and Landmark Decisions of Senegal’s Constitutional Court (co-author). He has also published several articles: Research on Africa’s Model Constitutional Jurisdiction (AIJC 2005); The Prefect’s future in French Public Law (AJDA December 2006) and the Exception of Illegality within Senegal’s New Judicial System (Revue URED June 2011). Mr. Diallo is also a consultant to several national and international organizations. He advises on issues relating to decentralization and natural, soil and water resource administration.

Chadidscha Schoepffer, M.J.I., coordinator of projects and researcher at the International Research Center of Development and Environment at the Justus-Liebig University in Gießen (Germany), is a member of the executive committee of the Association of African Law. Her research concerns constitutional development and particularly constitutional justice in West Africa. She is an editor of the journal “Law and Politics in Africa, Asia and Latin America”.

Konrad Published By:

Adenauer Rule of Law Program for Sub-Saharan Africa Stiftung A AFRICAN LAW STUDY LIBRARY Vol 12 Konrad Adenauer Stiftung Office : Mbaruk Road, Hse, No. 27 P.O. Box 66471-00800 Westlands, Nairobi, Kenya

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All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission by the publisher. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

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Foreword

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eSSAyS ON THe INeFFeCTIVeNeSS OF THe pRINCIpLe OF SepARATION OF pOWeRS ON THe ReLATIONS BeTWeeN THe exeCUTIVe AND THe JUDICIARy AFTeR CHANGe OF pOLITICAL pOWeR IN SeNeGAL

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FOREWORD The last presidential elections held in March 2012 contributed to the strengthening of democracy in Senegal. The rule of law presupposes that the decisions by State organs at all levels are limited by the supreme law and are subject to the judicial review. The hierarchy of the standards only becomes effective if it is jurisdictionally sanctioned and the fundamental rights are effectively protected by an independent judiciary.

Besides, protection of liberties has become an irreplaceable consequence of the democratic principle. To ensure a balance of powers within a state build on the principles of the rule of law and to guarantee fundamental rights and freedoms of the citizens, efficient and effective intervention of an independent justice system is indispensable if not irreplaceable.

These articles written by young Senegalese researchers illustrate perfectly that the rule of law is an essential asset which should be enhanced.

It is within this context that this volume of the African Law Study Library compiles a series of reflections produced by young researchers of the Faculty of Juridical and Political Science of the University of Gaston Berger St. Louis (UGB). The works are from a seminar on the rule of law in Senegal which is a part of a series of seminars planned in West Africa within the framework of the Konrad Adenauer Foundation’s «Rule of Law Program for Sub-Saharan Africa ». by. These seminars are meant for doctorate students and associate lecturers of the faculty of law present and offer a framework for reflection on the legal reality in the respective countries.

The UGB team thus embarked on determining different aspects of realizing the concept of the rule of law in Senegal. Two articles touch on the role of jurisprudence in the implementation of the rule of law in Senegal. Abdoul Aziz Sow’s article touches on« Contribution of the electoral judge in the development of the rule of law in Senegal ». After identifying this election judge, he analyses his contribution to the development and consolidation of the rule of law in the entire electoral process as well as through election disputes. By using examples on administrative jurisprudence, his colleague Omar Dia, on his part writes on «The role of the administrative judge on the development of the rule of law in Senegal »





and throws some light on the manner in which the Senegalese administrative judge protects rights and freedoms which the citizens enjoy within a state governed by the rule of law. In his «Essays on causes of ineffectiveness of the principle of separation of powers on relations between the executive and the judiciary after change of political power in Senegal » Papa Fodé Kanté analyses the structural causes of the ineffectiveness of the principle of separation powers on the relations between the executive and the judiciary after the change of political power in Senegal. Moussa Sarr studies the levels of realization of the principles of the rule of law in Senegal and examines whether different processes to which Senegal committed herself (sometimes imposed by external players) show « the effectiveness of the rule of law

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We thank UGB authorities for having made it possible to organize the seminar which is directed towards a sustainable collaboration. We thank the Dean Babacar Kanté who established the cooperation which led to the realization of this project. We in particular thank Konrad Adenauer Foundation for having integrated the project within the framework of its program « Rule of Law Program for Sub-Saharan Africa ». Finally, we wish to express our gratitude to the participants for their commitment. The opinions expressed herein are those of the authors and do not necessarily represent those of the undersigned or the Foundation.

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GENERAL INTRODUCTION

Rule of law, democracy, protection of individual freedoms, are today the key words of the so called civilized nations. Indeed, changes in democratic societies has enabled the established of criteria of a state governed by the rule of law characterized mainly by separation of powers, periodic elections as well as guarantee and respect of fundamental freedoms. Globalization of the law by the so called democratic states, has frantically tried to make democracy a showcase for states governed by the rule of law. Although we often deny African states to be models of democracy, the wind for the rule of law seems to have blown over the continent so much that talking about he law only after a few decades becomes a challenge.

Senegal, like other African countries has not escaped this situation. Defined literary as being a legal situation in which each person is subjected to the respect of the law, the guarantee of the rule of law presupposes a strong and independent justice system, being able, when the opportunity arises, to rule on the law, even to the executive authority, particularly if it pertains to elections. Indeed, elections make it possible to gauge the degree of democracy and the respect of the fundamental right of voting.

The rule of law denotes submission of public institutions to legal regulations and they accept to be controlled by jurisdictions of these regulations. As rightly underlined by C Goyard, the rule of law is in effect that which the regulations are clear, known, guaranteed by enactment of legal sanctions, in such a manner that… if the regulations have been contravened, there are ways of recourse to rectify or to destroy the acts incompatible with the regulations in a legal system1. Defined as an institutional system in which the public power is subjected to the law, the rule of law is a concept of German origin which redefined in the beginning of the twentieth century by Hans Kelsen, as a state in which legal standards are organized along hierarchical lines in such a way that its power is limited. The model is founded on the principle according to which the legal regulation draws the validity of its conformity with higher regulations. Such system, moreover supposes, equality before the law and the existence of independent and competent judiciaries.

Respect for the supreme law is a major guarantee for the rule of law. Indeed, legal and judicial security requires some coherence of the standards in order to ensure compatibility and if necessary conformity among them. At the apex of this pyramid is the Constitution.

The main implication would be the submission of everyone to the law and consequently sanction to eventual violations of this law. The originality of such a model therefore supposes acknowledgement of equality of different subjects of law submitted to the standards in force. This indeed implies that every individual, every organization, at the national level, can contest the application of a legal standard, whenever this standard is not in conformity with the supreme law. At this level, the constraints which weigh on the State are enormous UFR Sciences Juridiques et politiques Université Gaston Berger de Saint Louis * C Goyard « Etat de droit et démocratie », Mélanges René Chapus, Paris, Montchrestien, 1992, p.301 1

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Etymologically from Latin electio meaning choice, election is a choice realized through suffrage (voting, approval) in which all people having the right to vote, are called upon to participate by the electoral body2. The objective of an election is to nominate one or several people to exercise an electoral mandate (political, economic, associative, trade union, social,...) during which they represent their electorates. Through their vote, the constituents transfer to them the legitimacy necessary to exercise the power allocated to the office which is the objective of the election.

The population concerned transfers, through its majority vote, legitimacy to the representatives or principals chosen to exercise the power allocated to the position occupied. Several types of elections can be found in a state; but we find mainly in states governed by the rule of law like Senegal, presidential, parliamentary and municipal elections. The stakes are however different even if there is need to acknowledge that presidential elections draw the most attention of the citizens, we should not forget that parliamentary elections and municipal elections (regional, communal and rural) are true barometers of a democracy and subsequently of a state governed by the rule of law. If the elections constitute rare opportunities so that principal holders of sovereign power can make a choice on systems and men and women supposed to lead public institutions, they are indicative of the relevant criteria.

Called upon to rule on the law and even to supervise the elections, the electoral judge or judges are called upon to a certain extend to develop, guarantee and consolidate the rule of law. This mission is operated by a control of the electoral procedure which starts from the registration of voters, reception and supervision of candidacies, conduct of electoral campaigns, funding of the campaigns, announcement of results, reception of election disputes and ruling on any possible electoral offenses. This task is hard enough and very sensitive. It is for this reason that it would be interesting to enquire into the contribution of the electoral judge in the consolidation of the rule of law, in other words what is the contribution of this judge in the development of the rule of law in Senegal?

The answer to such a problem requires enlightenments on an earlier question which constitutes identifying this or these election judge(s). Indeed, in respect to the Senegalese positive law, several judges intervene in the electoral process. It first pertains to the Court of Appeal, the Constitutional Court and the Supreme Court.

The Court of Appeal hears and rules on disputes relating to election of municipal and regional councils, members of trade councils and chambers as well as councils of professional bodies.

Pertaining to the elections of the President of the Republic and members of parliament, the Court of Appeal oversees the conduct of voting operations, legality of the poll, counting and tallying of the votes and announces provisional results.

The Courts of Appeal are governed by Decree N° 84-1194 of 22nd October 1984 as amended by the Decree N° 92-916 of 17th June 1992. At that time there was one Court of Appeal on the Senegalese territory, that of Dakar. In terms of Article 25 of this Decree, the jurisdiction 2 http://www.toupie.org/Dictionnaire/Election.htm

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As for the Constitutional Council3, Article 2 provides that in conformity with the provisions of Articles 24, 25, 28, 29, 31 and 35 of the Constitution, the Constitutional Council receives candidacies for the President of the Republic, rules on the list of candidates, rules on the list of candidates and makes a ruling on issues challenging the elections of the President of the Republic and members of the National Assembly and announces results for these positions. It conducts the swearing of the President of the Republic and notes his resignation, incapacitation, or death as well as the resignation, incapacitation or the death of the people called upon to deputize him in his functions.



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