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"The competition for the election of the President of the Republic is an important moment in the life of a nation.It crystallizes all the issues.
The electoral process is, however, framed by the law. to be like war, the continuation of political politics by other means Its purpose is to ensure equality, order, stability, peace and justice. purpose to become a weapon of mass destruction of political opponents to open a boulevard for the next elections.The era of electoral coups must be forever gone especially for a country that has experienced two or three alternations at the top of the State.
In the same vein, all those who want to open their eyes have found that the main characteristic of this 4th Republic of Senegal, is that at all levels of the State, the injustice and the party p Ris are erected into rules, justice and equality, confined to the rank of mere exceptions.
With respect to justice and due process, it is important to note that the following lines do not violate any provision of the statute of the judiciary. This status allows, in its article 11, to express us on all questions of a technical nature which concern the national community. The assessment, under the law, of the admissibility of the application for registration of a Senegalese on the electoral lists, in this case Karim Wade and the admissibility of his candidacy for the election of the President of the Republic is an eminently technical question.
The other clarification we wish to make is that we have been one of Mr. Wade's judges at the Court of Repression for Illicit Enrichment. We had to resign from this jurisdiction because we did not share the direction. Only the requirement of responsibility, truth and justice justifies the words that follow. It is indeed essential for the judge and the citizen that we are to give our opinion, if only to prevent any legislative or administrative manipulation to favor one camp over another and to denounce in advance all apparent or hidden fraudulent maneuvers. , supported by a leak of jurisdictional responsibility or embedded in scholarly interpretations legislative and case law.
Admissibility of Karim's candidacy
Power belongs to the people and only to the people who exercise it through their representatives. In this regard, any Senegalese voter may apply and be elected subject to the age and incapacity conditions provided for by law.
The right to the eligibility and the enjoyment of civil, civil and political rights are assessed, in the current state of our law, in the light of the constitutional provisions, the penal code and the electoral code, in taking into account the conformity of the last mentioned codes with the Basic Law.
In view of these provisions, the conviction of Karim Wade by the Court of Repression of Illicit Enrichment (CREI) is not an obstacle to both his registration on the electoral rolls and the admissibility of his candidacy for the election of the President of the Republic. This application remains legally admissible regardless of the angle from which it is examined. Only an electoral coup, clothed with the tinsel of a free and independent justice but, in reality, subservient to the prevailing interests of the moment, could hinder the acceptance of this candidature.
– Admissibility of the application in relation to the provisions of the Penal Code
The relevant provisions applicable are Articles 23, 27, 34 and 35 of the Criminal Code.
Under these provisions, only the condemnation to a term of criminal imprisonment, carries the civic degradation. This consists, in the light of Article 27, on the dismissal and exclusion of convicted persons from all public functions, posts or offices, in the deprivation of the right to vote and to stand for office and, in general, to the deprivation of all rights. civic and political.
The law does not impose any prohibition on the exercise of public office following a conviction for an offense. This conviction is not an obstacle, in the current state of our law, to the exercise of an elective office or the office of President of the Republic.
With respect to the exercise of the right to vote, sections 34 and 35 specify that the courts may only prohibit their exercise when they have been authorized or ordered by a particular provision of the Act. No provision of Law 81-53 of 10 July 1981 on the suppression of unlawful enrichment provides for the prohibition of the exercise of civil rights for the offense of Article 163 of the Criminal Code. This justifies the rejection by CREI of the additional penalty, yet required by the public prosecutor.
By refusing to pronounce the prohibition sought, the judgment of CREI leaves intact the civil rights of Karim Wade.
– Admissibility in relation to the electoral code
(In France, the unconstitutionality of Article 7 of Law 95-65 of 19 January 1965 on the financing of political life, twins articles L 31 and L 32 of the electoral code)
Articles L 31 and L 32 of the electoral code, which prohibit the registration on the electoral lists, persons convicted of crimes or offenses that they enumerate are the resumption of the French provisions contained in the Article 7 of Law No 95 – 65 of 19 January 1995 on the financing of political life.
The French Constitutional Council, in its decision n ° 2010-6 / QPC of June 11, 2010 stated that the provisions of article 7 of law 95-65 are contrary to the French constitution, in that they violate the terms of Article 8 of the Declaration of the Rights of Man and of the Citizen of August 26, 1789, on the grounds that "the principle of individualization of the penalties which results from this article (Article 8), implies that the penalty abolishing the prohibition on being entered on an electoral list and the resulting inability to perform an electoral function can only be applied if the judge has expressly pronounced it, taking into account the specific circumstances of each case ".
In order to comply with this decision, the French Minister of the Interior, Overseas Territories and Local Authorities took the circular of 20 July 2010, addressed to all the prefects of France. object is the repeal of article L 7 of the electoral code.
Obvious violation of the Constitution
The non-compliance of the provisions of Articles L 31 and L 32 of the Electoral Code with the Constitution of Senegal is equally obvious. Under the principle of the separation of powers, the legislator who can issue penalties and the executing executive can never pronounce them as is the case here. The sentence is obligatorily pronounced by a court of judgment after assessment of the guilt of the person.
The prohibition of registration on a list of electors constitutes a penalty and any penalty entails the application of Article 8 of the Declaration of the Rights of Man and the Citizen of August 26, 1789, an integral part of the Constitution of Senegal according to which: "The law must establish only penalties strictly and obviously necessary and no one can be punished only by virtue of a law established and promulgated before the crime, and legally applied".
This constitutional provision implies the imperative submission of Articles L 31 and L 32 of the Electoral Code to the principles of necessity and individualization of sentences.
It turns out that the deprivation of the exercise of the right to vote, as mentioned in the electoral provisions mentioned above, can not be individualized insofar as it is general, undifferentiated and automatically automatically attached to various criminal convictions, without the judge having to pronounce it expressly, or even having the possibility of modulating the duration in the light of the circumstances of the case and the personality of the individuals brought before him.
It is for these reasons that the provisions of Articles L 31 and L 32 of the Electoral Code, like those of Article 7 of the aforementioned French law, are contrary to the Constitution.
The possibility for Karim Wade to register on the electoral lists and the admissibility of his candidacy, assessed even in the alternative, in view of the unconstitutional provisions of Articles L 31 and L 32, Articles L 115 and L 116 of electoral code, remain, in our opinion, admissible.
– Admissibility in relation to Articles L 31 and L32 of the Electoral Code
Under Article 730 of the Code of Criminal Procedure "a copy of each sheet stating a decision entailing the deprivation of electoral rights shall be sent by the competent clerk to the authority responsible for drawing up the electoral lists ". It is clear that under this provision, the authority responsible for drawing up the electoral lists can only rely on decisions (and only on those decisions), addressed to it by the clerk and noting the deprivation of electoral rights. , to refuse the registration of a Senegalese major on the electoral lists. It can not play the judge by applying a provision of which it has no control.
It also flows from the fact that even the terms of Articles L 30 and L 31 of the Electoral Code "must not be entered on the electoral lists", that this prohibition only concerns first-time voters. Those who are already registered can not register again because double registration or multiple entries are prohibited by Article L 34 of the Electoral Code which provides: "No one may be registered on several lists or be registered more than once on the list. same list ".
This interpretation is confirmed by Articles L31, L32, R32 and R33 of the Electoral Code. It is further solidified by Article 4 of Decree No. 2018 – 476 of February 20, 2018, revising exceptionally the electoral lists for the presidential election of February 24, 2019, according to which: "The Administrative Commission proceed to the registration of new electors: the applicants must be at least eighteen (18) years old by the date of Sunday, February 24, 2019 … "
Moreover to consider even that the article L 31 of the electoral code which concerns only the first-time registrants is applicable to the case Wade, it remains that this provision can not still hinder its registration on the electoral lists. As Karim Wade was sentenced to more than one month and six months' imprisonment under the provisions of Articles L 31-2 and L 31-3, the fundamental question is: which of these two provisions applies to it. Is it L 31-2 or L31-3 or both at the same time?
Conflicting Provisions
It is obvious that Article L31-2 can not be applied to him, in that he is not convicted for any of the offenses enumerated by this paragraph. The only question concerns the meaning of the expression "in general for one of the offenses punishable by a sentence of more than five years" . Are these offenses punishable by a term of imprisonment of more than five years or only the offenses listed in that paragraph where the quantum of the sentence exceeds five years as is the case for robbery? drug trafficking, breach of trust under Article 383 (3) of the Penal Code, misappropriation of public funds under Article 152 (3) of the same Code cited by this provision? A careful reading of this paragraph, combined with the provisions of Article L 31-3 of the Electoral Code, shows that these are only the offenses listed in Article L 31-2. All "offenses other than those enumerated" by this paragraph fall within the scope of Article L 31-3. It follows that Wade can not be denied registration on the electoral lists on the basis of Article L 31-2 of the Electoral Code.
The registration or the prohibition of registration on the electoral rolls for persons convicted for unlawful enrichment is subject to the provisions of Article L 31-3 of the Electoral Code according to which, must not be inscribed on the lists Elections: "Those sentenced to more than three months' imprisonment without parole or to a term of imprisonment of more than six months suspended, for a crime other than those listed in the second paragraph above the provisions of Article L 30. "
On the basis of this provision, the prohibition of registration on the electoral lists can be applied only if the person is sentenced either for a criminal sentence or for a tortious sentence with the additional penalties of Article L 34 of the CC, namely the prohibition in whole or in part of the exercise of civil, civil and family rights such as the right to vote and eligibility, without the convicted person having benefited from the pardon or the subject of an amnesty measure.
Similarly, in the light of the provisions of article L 30 of the electoral code "no one may refuse the registration on the electoral rolls (…) to persons who, having been incapacitated by elections as a result of condemnation benefit from the pardon or are the subject of an amnesty ". What about a person who has never been the subject of an electoral incapacity pronounced by a Senegalese court?
Let us admit, once again, that the provisions of Article L 31-2 and L 31-3 are both applicable to Karim Wade at the same time. We are then in contradiction. One provision prohibits his registration on the electoral lists, while the other authorizes it. In view of this situation, the rules of interpretation imply applying the most favorable standard to the candidate, in this case the application of Article L 31-3. It is indeed a matter of constitutional jurisprudence that the rules establishing the limitations to the registration on the electoral lists and, in general, to the candidatures are of a restrictive interpretation. The principle has been strongly and repeatedly reiterated by the French Constitutional Council, notably in its decisions of 11 May 1967 (Cons Cont doc. 67-336 / 477 of 11 May 1967) and that of 19 May 1969 Ducatel C. Krivine . The Council expressly declares that any ineligibility which has the effect of undermining the freedom of candidatures must be interpreted restrictively.
The Law of Men or the Law of God
From some angles that we place ourselves to examine the question asked, we realize that only the law of the strongest can stand in the way of Karim Wade's registration on the electoral lists and the admissibility of his candidacy.
Still to admit that the law of the strongest can triumph and Karim Wade does not register on the electoral lists, his candidacy is still admissible. The registration on the electoral lists is not a condition of admissibility of a candidacy with regard to the provisions of the article L 115 of the electoral code.
The presence on the lists of electors implies only the possibility and not the obligation to vote on polling day for any person who wishes to do so. The quality of voter is not assessed, absolutely, in relation to the registration or not on an electoral list. It is assessed only in the light of the provisions of the last paragraph of Article 3 of the Constitution and L 27 of the Electoral Code, according to which "Senegalese of both sexes, aged eighteen (18), are eligible to vote". , enjoying their civil and political rights and not in any case of incapacity provided for by law ". Only the minority and the loss of the enjoyment of civil and political rights prevent being voters. Karim Wade, who is not in any of these cases, remains a voter under the law.
What about the admissibility of the existence of a criminal record mentioning a criminal conviction?
The absence of a clean criminal record can not be an impediment to the admissibility of a candidacy for the presidential election. Indeed, Article L 115 sets the conditions required to be a candidate for the election of the President of the Republic and this provision has never mentioned the absence of a criminal conviction or even the status of elector as a condition required to take part in the electoral competition, despite the contradictions desired and installed through Article L 57.
Article L 116, by requiring the filing of certain documents is simply intended to allow the Constitutional Council to verify that the conditions required by Article L 115 are fulfilled. Thus, the certificate of nationality aims to verify the nationality requirement; the birth certificate, identity and affiliation of the candidate; the third form of the criminal record verifies the enjoyment of civil and political rights. Since Karim Wade's conviction does not include any additional penalty depriving him of his rights, his candidacy can only be declared admissible under this criterion. Moreover, this provision does not impose, at any time, the registration on the electoral lists as a condition of validity of a candidacy for the election of the President of the Republic. The provisions of Articles L115 and L116 of the Electoral Code are sufficient in themselves.
Regardless of the analytical hypothesis under which we examine the question posed by this study, we realize that nothing in the light of the law should prevent the registration of Karim Wade on the electoral lists. and the admissibility of his candidacy for the election of the President of the Republic. Only injustice could prevent it. Concerning injustice, let us beware of the warning given by Victor Hugo several centuries ago: "When men strive to put injustice in the law, God puts the justice and He strikes with those laws those who voted them ". And we add: those who were at their origin, those who apply them and those who execute them indiscriminately. "
Dakar on July 16, 2018
Judge Yaya Amadou DIA
position of availability
Former Assessor at CREI
[email protected]
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