The situation in Senegal: Failure of government and ECOWAS

The unilateral announcement by Pres. Macky Sall to postpone the February 25 presidential elections only to be fully endorsed by ECOWAS showcases the unethical nature and gross hypocrisy of African governments and regional and continental bodies such as ECOWAS and AU. It is this perennial notoriety of African leaders and institutions which is the reason for the disrespect, wretchedness, and powerlessness of the continent in the face of the world.

The announcement by Pres. Macky Sall to postpone the elections is a total violation of the Constitution of Senegal. He has arrogated to himself authority and powers that are vested only in the Constitutional Council. Yet, ECOWAS decided to side with Sall in total contravention of its own protocol on election.

In the first place, the Constitution of Senegal under Section 92 provides that the President may seek the opinion of the Constitutional Council where there exist disputes between the legislative and executive branches, or any acts of unconstitutionality brought before the Supreme Court. The question is, has Macky Sall consulted with the Constitutional Council before reaching the decision to postpone the election? Clearly, he has not done that as evidenced by his national address on February 3.

The Senegalese Constitution has clearly placed the decision on elections such as the date, or postponement, or validation of candidates and announcement of results in the Constitutional Council only. These can be found in Section 29 of the Constitution which gives authority to the Council to validate candidates and postpone election to a new date where there are circumstances warranting a postponement such as the death of a candidate.  Section 31 empowers the Constitutional Council to announce the vacancy in the office of the president, while Section 33 gives the Council the authority to announce dates for a second round of voting.

From Sections 34 to 52, one can find that the Constitutional Council is the only body mandated to publish list of candidates (s.34), hear contesting of results (s.35), administer the swearing of the president-elect (s.37), or announce the resignation, incapacity, or death of the president (s.41). To even hold a referendum, the president has to seek the opinion of both the National Assembly and the Constitutional Council under Section 51 before submitting a bill for a constitutional referendum. Even in a state of emergency where the National Assembly may be dissolved, it is the Constitutional Council which sets the new date for election under Section 52.

The judicial power in Senegal is vested in these bodies, namely the Constitutional Council, Supreme Court, Court of Auditors, Courts, and Tribunals – in order of importance. Section 92 states that the decisions of the Constitutional Council are final and not subject to appeal. This is why in Section 83, the Constitution states that in the event of disagreements, the President, the National Assembly, or the Prime Minister would seek the opinion of the Constitutional Council which is to provide such a decision within eight days.

The question now is, has Macky Sall followed the rule of law as established by his country’s Constitution? It must be noted that Section 42 of the Constitution states that,

“The President of the Republic is the guardian of the Constitution. He is the premier Protector of the Arts and Letters of Senegal. He incarnates national unity. He is the guarantor of the regular functioning of the institutions, of the national independence and of the integrity of the territory.”

Clearly the announcement by Macky Sall is a direct violation of his powers and obligations as highlighted above. His claim that the postponement has to do with disputes and accusations which are before the National Assembly is untenable. This is because the National Assembly does not have the power to review a decision of the Constitutional Council. Hence the disqualification of Karim Wade and the validation of Rose Wardini by the Council are not matters for the National Assembly to review. Pres. Sall is therefore merely manipulating the law and institutions just to maintain himself in power beyond his mandate which tantamount to unconstitutional change of government, which violates both the Senegalese Constitution and ECOWAS protocols.

Therefore, how could ECOWAS fail to not realize this blatant disregard of the Constitution by Macky Sall but rather to side with him. A look at the ECOWAS Protocol on Democracy and Good Governance states in Article 1, on Constitutional Convergence Principles, that member states shall uphold, “Zero tolerance for power obtained or maintained by unconstitutional means.”

The Protocol went further to state in Article 2 that, “No substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of political actors.” It adds that, “All the elections shall be organized on the dates or at periods fixed by the Constitution or the electoral laws.”

Has Pres. Macky Sall therefore abided by Article 2 of the ECOWAS Protocol by consulting and obtaining the consent of political actors before deciding to postpone the election? Changing the date of an election within 21 days of that election is a “substantial modification” of the electoral laws which is contrary to this Protocol. Surely, the ECOWAS Commission cannot claim not to be aware of the terms and principles of ECOWAS protocols such that it would issue that shameful communiqué in support of Macky Sall.

In fact, ECOWAS cannot claim ignorance of the situation in Senegal. For the past few years now Pres. Macky Sall has been on the path of consistently violating both the Senegalese Constitution and ECOWAS protocols. It is common knowledge that Macky Sall’s government has been engaged in severely constraining and clamping down on dissent by attacking the opposition, civil society, and the media with much brutality. Today, under Macky Sall, Senegal has become a pariah nation where hundreds of political prisoners languish in jails while many more were massacred by his security forces. For that matter, there is currently a lawsuit in France and a complaint before the ICC to investigate Pres. Sall and his associates for crimes against humanity in their atrocious clampdown on demonstrators and political opponents.

Therefore, the ECOWAS Commission cannot claim ignorance of the situation in Senegal especially in relation to elections. This is because its Protocol on Democracy and Good Governance provides under Article 13 that, “As elections in a Member State approach, the Executive Secretary shall dispatch a fact-finding Mission to the Member State conducting an election.”

The purpose of the mission, among others, is to gather “all information on the conditions under which the elections shall be conducted” as well as collect “all pertinent information relating to the contesting candidates or political parties” including meeting all candidates and political party leaders.

Has this mission ever taken place? If so, what did ECOWAS find in Senegal in relation to the elections? Has ECOWAS taken any action based on its findings to engage the Government of Senegal and the political parties to ensure that the Constitution and ECOWAS principles and international norms and practices for a free and fair elections are upheld? If such a mission did not take place, or if the findings of the mission were ignored by ECOWAS as is evident in its communiqué, then it is fair to say that ECOWAS bears primary responsibility as the Senegalese Government for the current crisis in that country.

By its communique it is obvious that ECOWAS is in cahoots with Pres. Macky Sall to violate the Senegalese Constitution as well as the Protocol on Democracy and Good Governance. Not only has ECOWAS endorsed the postponement but it goes further to “salute” Pres. Sall needlessly for not running for a third term. Why should ECOWAS salute a president for not seeking a third term when it is obvious that the law provides for only a two-term presidency? What is the point in saluting such a president who was hellbent on a third term if not for the gallant resistance of his own people leading to the deaths of hundreds? Shouldn’t ECOWAS be holding Macky Sall accountable for murder than saluting him for attempting to violate the country’s Constitution?

Whither Africa?

The ECOWAS Treaty and its various protocols seek to create a region of peace and stability among its citizens to enjoy prosperity while actively participating in national affairs to enhance democracy and good governance. Since its inception in 1975, West Africa has remained a turbulent region suffering from armed conflicts, coups, and civil wars. A 2021 OXFAM report highlights a major inequality crisis in the region where, “the wealthiest 1% of West Africans owned more than everyone else in the region combined” noting that “West Africa’s governments were the least committed to reducing inequality than all other regions of the African continent.”

Is it any wonder therefore to see thousands of Senegalese youths bracing the high seas and the Sahara Desert just to seek greener pastures in Europe in which scores drown or starve to death? Is it any wonder that there is so much poverty and deprivation in Senegal while public officials such as Macky Sall sit at the helm only to violate laws and plunder public wealth with impunity? Is it any wonder that the incidence of violent extremism, irregular migration, coups, and armed conflicts are widespread across the region?

It is decisions such as Macky Sall’s unconstitutional postponement of the elections and endorsed by ECOWAS that are making Africans lose faith and trust in their governments and continental bodies. It is obvious that the people only see these bodies as serving the interests of only the heads of state against national interest. What is ECOWAS telling West Africans when it stands with Macky Sall after having condemned military coups in other member countries? Is this not exposing its double standards and hypocrisy in accepting Pres. Macky Sall to use unconstitutional means to maintain himself in power but suspended Mali, Burkina Faso, Guinea, and Niger for unconstitutional change of government through a coup? Who then is ECOWAS standing for?

The situation in Senegal is fast deteriorating over the past 24 hours with presidential candidates being rounded up while their supporters are being violently attacked by security forces. ECOWAS must be told that they bear total and full responsibility with Macky Sall if there erupts in Senegal a civil war or a military coup. That the situation has already reached this level demonstrates gross negligence of duty and disregard of the law by both the Senegalese Government and ECOWAS which must not be allowed to further deteriorate.

West Africans, stand up to defend Democracy and Human Rights!

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Madi Jobarteh

Twitter: @jobartehmadi

LinkedIn: Madi Jobarteh

Phone: +220 9995093