The Constitutional Council: From Boldness to Evasion
On February 15, 2024, the Senegalese Constitutional Council demonstrated remarkable audacity. Confronted with a significant institutional crisis, it resolutely fulfilled its mandate as the guardian of constitutional supremacy and the regulator of institutional functions.
However, on June 17, 2026, when presented with an appeal challenging the National Assembly Bureau’s decision to reinstate Mr. Ousmane Sonko as a deputy, the same institution appeared to take a divergent path. The Council refrained from ruling on the substantive merits of the dispute, instead declaring itself incompetent.
While this might initially seem like a purely technical ruling, it, in fact, raises a more profound question: what is the Constitutional Council’s current perception of its own role and its established jurisprudence?
This crucial debate warrants thorough examination.
The petitioners had not exclusively based the Council’s jurisdiction on Article 92, paragraph 3, of the Constitution, which pertains to its role as the arbiter of national election regularity. They also invoked Article 2 of the organic law governing the Constitutional Council, alongside two pivotal precedents in Senegalese constitutional jurisprudence: decisions n°08/2017 of July 26, 2017, and n°1/C/2024 of February 15, 2024.
Their argument unfolded in two stages. First, they asserted the Council’s authority as the judge of the regularity of parliamentary elections. Second, they emphasized its broader role as the guardian of the Constitution and the regulator of institutional operations.
It is precisely regarding this second foundational aspect that the Council’s silence is particularly striking.
The June 17, 2026, decision exclusively addressed the argument concerning electoral competence. It reiterated that the mission of an electoral judge concludes with the definitive proclamation of results and noted that the contested decision occurred long after the legislative elections of November 2024. While this reasoning is legally sound, it falls short of addressing the full scope of the appeal.
The appeal did not merely present an electoral difficulty; it fundamentally raised a constitutional issue directly impacting the functioning of the Republic’s institutions.
The reintegration decision of May 24, 2026, indeed challenged several core principles: the separation of powers, the framework for parliamentary and ministerial incompatibilities, and the adherence to the National Assembly’s internal legality as defined by its own rules of procedure. In essence, the debate centered on the conformity of an institutional act with constitutional requirements – a domain where the Constitutional Council’s institutional regulatory function finds its very purpose.
Given this context, how could the Constitutional Council disregard its own considerant 19 from its landmark decision of February 15, 2024, concerning the postponement of the presidential election? In that ruling, it emphatically stated: « In light of the spirit and letter of the Constitution and the law relating to the Constitutional Council, the Council must always be able to exercise its regulatory power to preserve the general interest, public order, peace, institutional stability, and the continuity of their functioning. » Through this solemn declaration, the Council was expected to definitively break with a jurisprudence of incompetence, thereby embracing a dynamic interpretation of its mission as guardian of the constitutional order, allowing it to intervene whenever a major institutional crisis threatened the normal operation of public authorities.
Paradoxically, the Council chose to sidestep this fundamental question. It opted instead to shift the debate towards the legal nature of the contested act, ultimately concluding with a declaration of incompetence.
This approach reveals a strategy of avoidance: resolving the matter through a procedural solution rather than a substantive answer. This tactic is not new in the history of constitutional litigation. When a constitutional judge prefers not to rule on a sensitive issue, declaring incompetence offers a convenient escape. The consequence is that 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 is certainly puzzling. While defending the legality of his reintegration is part of normal 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, criticized the Council’s repeated declarations of incompetence when these prevented effective oversight of acts potentially infringing upon the Constitution and institutions. They then called for a more assertive constitutional judge, one more protective of liberties and vigilant in preserving the rule of law. It would be highly paradoxical if those who once fought against the culture of incompetence were now to become its proponents.
Indeed, this is the true underlying issue of this affair. The question was not merely whether Mr. Ousmane Sonko could reclaim a parliamentary seat. More importantly, the question was whether the Constitutional Council intended to continue the jurisprudential evolution initiated on February 15, 2024, or if it chose to revert to a formalistic and restrictive view of its powers.
The decision of June 17, 2026, regrettably provides a concerning answer, signaling a return to a jurisprudence of incompetence.
Ultimately, this case raises a straightforward question: 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 not merely close a jurisdictional debate. It relinquished its jurisprudential ambition and left a major constitutional question unanswered.
Therefore, the June 17, 2026, decision will be remembered less as a ruling concerning Mr. Ousmane Sonko’s parliamentary status and more as a moment of truth for Senegalese constitutional justice.
On February 15, 2024, the Council took a monumental step, broadening the scope of its mission. On June 17, 2026, it narrowed it, taking two steps backward.
Each individual will assess which of these two stances better serves the authority of justice and the supremacy of the Constitution.
On February 15, 2024, the Senegalese Constitutional Council demonstrated remarkable audacity. Confronted with a significant institutional crisis, it resolutely fulfilled its mandate as the guardian of constitutional supremacy and the regulator of institutional functions.
However, on June 17, 2026, when presented with an appeal challenging the National Assembly Bureau’s decision to reinstate Mr. Ousmane Sonko as a deputy, the same institution appeared to take a divergent path. The Council refrained from ruling on the substantive merits of the dispute, instead declaring itself incompetent.
While this might initially seem like a purely technical ruling, it, in fact, raises a more profound question: what is the Constitutional Council’s current perception of its own role and its established jurisprudence?
This crucial debate warrants thorough examination.
The petitioners had not exclusively based the Council’s jurisdiction on Article 92, paragraph 3, of the Constitution, which pertains to its role as the arbiter of national election regularity. They also invoked Article 2 of the organic law governing the Constitutional Council, alongside two pivotal precedents in Senegalese constitutional jurisprudence: decisions n°08/2017 of July 26, 2017, and n°1/C/2024 of February 15, 2024.
Their argument unfolded in two stages. First, they asserted the Council’s authority as the judge of the regularity of parliamentary elections. Second, they emphasized its broader role as the guardian of the Constitution and the regulator of institutional operations.
It is precisely regarding this second foundational aspect that the Council’s silence is particularly striking.
The June 17, 2026, decision exclusively addressed the argument concerning electoral competence. It reiterated that the mission of an electoral judge concludes with the definitive proclamation of results and noted that the contested decision occurred long after the legislative elections of November 2024. While this reasoning is legally sound, it falls short of addressing the full scope of the appeal.
The appeal did not merely present an electoral difficulty; it fundamentally raised a constitutional issue directly impacting the functioning of the Republic’s institutions.
The reintegration decision of May 24, 2026, indeed challenged several core principles: the separation of powers, the framework for parliamentary and ministerial incompatibilities, and the adherence to the National Assembly’s internal legality as defined by its own rules of procedure. In essence, the debate centered on the conformity of an institutional act with constitutional requirements – a domain where the Constitutional Council’s institutional regulatory function finds its very purpose.
Given this context, how could the Constitutional Council disregard its own considerant 19 from its landmark decision of February 15, 2024, concerning the postponement of the presidential election? In that ruling, it emphatically stated: « In light of the spirit and letter of the Constitution and the law relating to the Constitutional Council, the Council must always be able to exercise its regulatory power to preserve the general interest, public order, peace, institutional stability, and the continuity of their functioning. » Through this solemn declaration, the Council was expected to definitively break with a jurisprudence of incompetence, thereby embracing a dynamic interpretation of its mission as guardian of the constitutional order, allowing it to intervene whenever a major institutional crisis threatened the normal operation of public authorities.
Paradoxically, the Council chose to sidestep this fundamental question. It opted instead to shift the debate towards the legal nature of the contested act, ultimately concluding with a declaration of incompetence.
This approach reveals a strategy of avoidance: resolving the matter through a procedural solution rather than a substantive answer. This tactic is not new in the history of constitutional litigation. When a constitutional judge prefers not to rule on a sensitive issue, declaring incompetence offers a convenient escape. The consequence is that 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 is certainly puzzling. While defending the legality of his reintegration is part of normal 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, criticized the Council’s repeated declarations of incompetence when these prevented effective oversight of acts potentially infringing upon the Constitution and institutions. They then called for a more assertive constitutional judge, one more protective of liberties and vigilant in preserving the rule of law. It would be highly paradoxical if those who once fought against the culture of incompetence were now to become its proponents.
Indeed, this is the true underlying issue of this affair. The question was not merely whether Mr. Ousmane Sonko could reclaim a parliamentary seat. More importantly, the question was whether the Constitutional Council intended to continue the jurisprudential evolution initiated on February 15, 2024, or if it chose to revert to a formalistic and restrictive view of its powers.
The decision of June 17, 2026, regrettably provides a concerning answer, signaling a return to a jurisprudence of incompetence.
Ultimately, this case raises a straightforward question: 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 not merely close a jurisdictional debate. It relinquished its jurisprudential ambition and left a major constitutional question unanswered.
Therefore, the June 17, 2026, decision will be remembered less as a ruling concerning Mr. Ousmane Sonko’s parliamentary status and more as a moment of truth for Senegalese constitutional justice.
On February 15, 2024, the Council took a monumental step, broadening the scope of its mission. On June 17, 2026, it narrowed it, taking two steps backward.
Each individual will assess which of these two stances better serves the authority of justice and the supremacy of the Constitution.
More Stories
FDR advocates for united opposition front amid ousmane sonko’s parliamentary return
Senegal’s evolving political landscape: navigating the faye-sonko power dynamics
Rabat hosts Gambian envoy to bolster bilateral cooperation