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In his reasoning, a third candidature for Macky Sall in 2024 seems obvious. Professor Jacques Mariel Nzouankeu delivers the meaning of the Yes in the referendum of March 20, 2016. In this last part of the Daily Marches, the retired public law professor mentions among other issues, the reform of the Act 3 of the decentralization which was made in the "precipitation" or alternation of the President of the Republic, a subject agitated yesterday by the deputy Alioune Souare. There is still a beginning of response to this debate.
Earlier, you mentioned the Senate. Some like Moustapha Diakhaté plead for his return when the President advocates the reduction of the lifestyle of the state. What is your opinion on this?
I did not know that Mr. Diakhaté did it. I have no element of law on the return or not of the Senate. I mentioned the Senate to talk about the removal of institutions. Where you can not go very far in terms of institutions is that you can not remove an institution so that all power disappears. There are three powers: executive power, legislative power and judicial power. For the judiciary, courts can be removed, added or created. For the legislature, there may be a room or two, as long as you delete one, the other is there. So, there is no problem. Someone told me, "What prevents the President of the Republic from introducing a bill to abolish the National Assembly?" I told him that legally he can not not do it because there would be no more distinction of powers, therefore of separation of powers. At this moment, there is an attack on the republican form of the state. And that is what the law interests us. But to remove one of the components of the legislature is different from removing the legislature, and so on. So, I said that we could put it back because in most of our African countries, and in Senegal in particular, we are removing institutions that are being handed over. The Economic and Social Council was abolished once before being brought back under another name, and so on. The power of revision of the Constitution allows the President to model them. To see it like that does not mean that I am happy with these trips back and forth from these institutions. I tell you the situation in law.
But when you see the abolition of the post of Prime Minister, which is not new in Senegal, do you think it is a step forward on the legal and administrative level?
No, we can not say that it is an advance or a retreat because it depends on the use that we make of institutions. With the parliamentary system we have, we can do a lot of things. You know, in the Constitution that we are going to give up now, there was an article that we introduced in 2016 with the referendum and which allowed us to pass laws without debates. This is Article 86 paragraph 4. The Prime Minister comes to the National Assembly with his bill not discussed in committee. He asks for confidence on this text. First case: trust is granted. His project is considered adopted. Second scenario: a motion of censure is introduced, but the bill is considered adopted. Third scenario: a motion of censure was adopted; then at that time, the bill is considered to be rejected; the government resigns but the president of the republic can dissolve the assembly. The ongoing constitutional reform has removed these provisions. It was to tell you that we can do a lot with the parliamentary system. So, everything depends on the use that will be made of the current reform. Even for the post of Prime Minister, we have seen that in the past its importance differed according to the personality of its successive holders. So we can do a lot of things with any diet. Whether it is parliamentary or presidential, it does not matter; what counts is the use that the President will make for the efficiency of his action.
What regime do we have now?
But currently, we are in a presidential regime.
Rationalized or not because in the explanatory statement, we talk about a rationalized presidential regime …
But what is rationalized? That's political science. When I say political science, I do not say it scornfully, it is a noble science. It is more complicated to be a political scientist than to be a lawyer. Therefore, I have a lot of respect for colleagues and expert political scientists. The law does not introduce a hierarchy between political regimes. Legally, the parliamentary system is neither superior nor inferior to the presidential system and vice versa. They are different regimes, the criterion of distinction being the existence or not of the right of dissolution and the motion of censure. It is political science that has the tools to formulate value judgments, for example, with regard to sociological, historical, cultural and other data, to affirm that this type of regime is the most appropriate. The final choice of the regime to put in place is a political choice. We were in a parliamentary system and people did not see it because of the majority system. But remember, in the legislative elections of 2017, the earthquake that occurred when one agitated the idea that the opposition could become majority in the Assembly! It's as if the world is going to crumble. It suprised me. Some have said that there must be blockages … others have even said that foreign powers are targeting our oil who are behind to send the opposition to the Assembly. As if the opposition was composed of extraterrestrials while they are Senegalese. If there were cohabitation, the constitutional revisions would be more difficult because in order for them to pass, the opposition to the Assembly would have to agree with the President who is the chief executive. The dialogue is already there. How many times in the presidential systems have bills been withdrawn because they were rejected by the hostile opposition to the government? Projects withdrawn are subject to negotiation and exchange prior to their adoption. In such a context, constitutional revisions with political policy aims would not be adopted. So, I'm defending and illustrating cohabitation. This situation allows the vote of consensual laws and especially of laws that will be effectively applied. If it had been achieved during the 2017 parliamentary elections, the President would have continued his mandate, while discussing with the deputies cases of difficulties of adoption of certain bills, if any. And that is the very function of the National Assembly.
Has the National Assembly not lost its power of control over the Executive with the abolition of the post of Prime Minister?
We talked about a rationalized plan. All the powers of the President of the Republic and the deputies were maintained, with the exception of the right of dissolution and the vote of the motion of censure. But there is also something that surprised me a bit in the debates. Many people believe that it is this revision that strengthens the powers of the President of the Republic but this is not the case. The revision does not affect the state of the balance of power as it was before. And the President of the Republic has the initiative of the laws as the deputies. In the same way, the President of the Republic has the faculty to make amendments like the deputies. There is a counterpart to all the decisions that can be made by the Speaker and members of Parliament. But then, there is an imbalance already from the beginning in this distribution. For example, there are more bills than bills. But this is not because there is an article of the Constitution that prohibits it. It is political science that can explain it. Is it because the MPs do not have the means to make proposals for laws or they are not surrounded by assistants, etc.? Or they may not have the right information on the budget … In any case, the Constitution does not prohibit them from making proposals for laws and even amendments creating or removing expenses. This is Article 82, paragraph 3). Current sections 86 and 82 allow members to create new expenses and remove a certain amount of revenue. They have never used this faculty in the area of finance law. The imbalance may be due to the fact that the President of the Republic can implement the budget, in borderline cases where it is not voted at the end of the year. But apart from that, the difference is that the President has a majority in the National Assembly. And this is a phenomenon that we have known under President Macky Sall as well as under the Senghor, Diouf and Wade regimes. Majority parties or coalitions are always assured of a large majority in the National Assembly. And that is what distorts the constitutional game that makes you believe that the President is "super powerful". The proof is that, on the eve of that election, I asked those who said that we are in a presidential system where the immense powers attributed to the President and which could disappear a blow if the opposition became a majority?
The President of the Republic is not hyper power after the abolition of the post of Prime Minister?
No, the current reform did not give him more powers than he had in the Constitution. But he still has his majority. And in a democracy, we can do everything we want, or almost anything, with the majority.
Should we not change the voting method for the election of members?
Ah, that's a good question of political science, citizen issue.
Today that the post of Prime Minister is suppressed, what is the order of the institutions? Is the Secretary General of the Presidency coming after the Assembly, for example?
No, there is always precedence to go normally to the President of the Assembly who ensures the replacement of the President of the Republic in case of impediment. And after the protocol will establish a new order of precedence. Exactly, the law also intervenes for this question of substitution because that is perhaps why political scientists talk about a rationalized regime. Logically, in a presidential regime, devolution takes place within each power. That is to say, when the President is not there, the Vice-President must replace him. And when the president of the National Assembly is not there, one of the vice-presidents can replace him. The fact that the President of the Republic, in case of impediment, is replaced by the head of the legislative power is a survival of the parliamentary system. But we must not go further, as some African countries have done, by creating both a vice-president and a prime minister. It's a bit too much on the side of citizen opinion. Legally, nothing is impossible, but logic would want the devolution of power to take place within the powers themselves, if there really is a separation of powers. But the post of vice-president had been abolished; therefore, nowadays, the substitute remains in the hands of the President of the National Assembly.
While digging a little your CV, one realizes that you were, under the President Diouf, legal adviser within the General Secretariat of the government of Senegal, in charge of the governmental action, president of the committee of relief and simplification of the formalities and administrative procedures. It's a little today that is advanced to justify the abolition of the Prime Minister's post … But tell us what you did at the time?
It was in the years "94" to "99" with the structural adjustment. We went from socialist doctrine to liberalization. So, all the texts were written for an interventionist state. And under the pressure of the donors, we were responsible for cleaning the texts to liberalize the activity. So, we took all the texts by sector (hotels, agriculture …) to remove all that hindered free enterprise. Liberalism had to settle. The first phases of decentralization were made in this spirit. Today, the situation has changed and we have already entered liberalism, social liberalism and others, it is very questionable. Personally, I do not believe it because when there is a problem, we challenge the state. You see, when you watch TV shows you find that it is always the state that is called in almost all cases, to solve the difficulties of the people and not private companies. This reality should be taken into account before excluding the State from certain sectors of activity.
Given the Constitution, can President Sall be a candidate in 2024?
This is a question that must be asked. It's a personal question. I think he has already answered that he will not be seeking a new term. The legal question is this: If President Sall seeks a new term in 2014, will his candidacy be accepted? Normally, this question is no longer relevant since he said he will not seek a new term. This debate is therefore no longer necessary. To raise this issue is not to reopen this debate, but just to recall what the law had decided on the issue. The Yes of the referendum of March 20, 2016 meant that the term of 7 years obtained by President Sall in 2012 will not be reduced to 5 years as he had asked the Constitutional Council, but also that this septennat is not part of the two consecutive terms that can now be advertised by any candidate in the presidential election. The first cycle of two consecutive five-year terms thus begins at the end of President Sall's seven-year term, that is, in 2019. President Sall has just obtained his first term. Legally, if he applies in 2024, it will be for a second and final mandate of this cycle. His application will be admissible. That's the right. But again, the Speaker has said many times that this eventuality would not occur.
What is the word of the President of the Republic in the Constitution?
That, I'm sorry! The word of the President of the Republic is the word of the President of the Republic. You will not make me say otherwise. Let's be clear: the President said something, he will do it. There I speak as a citizen. In law, there is no debate.
In 2016, it was a constitutional revision and not a new Constitution. We can consider that the septennat is the first mandate …
Listen, Senegalese positive law on this issue is what I just told you. Legally, the President of the Republic is executing his first constitutional mandate. But the President said he will give up his second constitutional term. As a lawyer, the debate is closed. As a citizen, I welcome the President's decision.
You will not be surprised that the Constitutional Council validates a candidacy of President Macky Sall in 2024?
This debate is closed.
But professor, we are talking about transitional provisions. Article 27 states that no one may serve more than two consecutive terms …
More than two consecutive five-year terms …
This is not specified …
No, but wait! I did not know that I was going to be read something (he opens the Constitution). I always said that you have to write the Constitution in easy French. (He reads) "The term of office of the President of the Republic is five years." This is the first paragraph. At the line: "No one can exercise more than two consecutive terms." And you say it can be seven years and five years! It does not help. I would have been an editor that I would have repeated like this: "No one can exercise more than two consecutive five-year terms."
The fact that the two articles follow each other means that …
It's two five-year terms, the first is not five years. At that time, it had been proposed that, if the septennat was to be counted as the first of the two mandates prescribed by article 27, it should be included in a transitional provision of the Constitution no later than six months. before the end of the seven-year term, to respect the constraints of the ECOWAS Protocol. This has not been done ; therefore, the possibility of a second constitutional term for President Macky Sall is part of positive law.
The Minister of Justice then, Pr Ismaïla Madior Fall has raised the controversy saying that "in principle" is the last mandate of Macky Sall …
I do not want to comment on Justice Minister Madior Fall, who is a great jurist and political scientist. I did not understand why we had all this debate on the expression "in principle". I read his interview in a newspaper. "In principle" does not mean that there are doubts about how the Constitution will be applied. Unless I am mistaken, he is one of the main drafters of this Constitution. So, I do not put a particular emphasis on the phrase "in principle". In my opinion, it was not a skid. At the University, "in principle" does not mean that there are reservations.
What is your opinion on the situation of our universities where there are tensions and paralysis?
Listen, it's very complicated with the numbers we have now. It's a big issue that I do not have the elements because I'm retired. Even though I was active, it is the unions that are the most knowledgeable about teaching issues, the status of teachers. We must not forget the prestige of the University Cheikh Anta Diop of Dakar. When you say that I come from this university, here in Africa, it's low hat, whether you're a student or a teacher. So, all stakeholders must safeguard the image of this great institution that was the University of Dakar, now University Cheikh Anta Diop of Dakar, but also for all our universities. I was convinced that with the deconcentration of university centers, we were heading towards a certain lull. But apparently it comes, it goes away, etc. It is to be hoped that dialogue will take place permanently within the university.
What is your reading of Act 3 of Decentralization, which faces blockages in its application?
On decentralization, I have ideas that are not implemented by Act 3. I had the privilege of participating in the decentralization process from 1972 to 1998. So we know a little bit about where comes. Act 3 is a good initiative but it was done in a hurry. We have not given ourselves the time to properly assess the situation and to properly regulate what we must regulate. There are 3 problems. I am for the return of the region as a community. We are told territorial poles but we have no correspondents. We work in collaboration with other countries through partnerships. You go abroad, if your institution does not have correspondents, you can get things but, it will be difficult. What we know in the world are the regions. Territorial poles are good but we do not know what that covers.
What about the department?
For me, the department should never have been established as an autonomous local authority. One should have kept its status of deconcentrated collectivity because it is really a level of organization of the state administration which must remain in the hands of the Minister of the Interior or the Territorial Administration.
Are you back for regional councils?
Yes. Large areas that can be economically viable and should be economically viable. The second problem is the plurality of the statutes of the communities. We inherited from France the idea that an identical and uniform status should be applied to all communities. However, coastal areas can not be administered in the same way as desert Sahelian zones. There is no reason for the Administration to be modeled on the same model. Some administrative structures may be suitable for sedentary populations, without suiting nomadic populations. Standardization of the statutes does not work because it is not realistic. We are not obliged to have the same composition of advice throughout the territory in the face of the challenges of geographical realities. The plurality of statutes must be privileged. The third problem is that of the territorial civil service. To write the statutes of this territorial public service, we made the copy-paste of the general statute of the civil servants of the State with bodies, frames, staggerings, indices …, whereas it was the occasion to make a public service job that better reflects the results-based management that we are putting in place. I did not hear the press talk about the status of local authorities, yet it is in the Official Journal. So, here are the three points: diversity of statutes, review the status of local authorities and that of the territorial public service and restore the region.
We are going towards the exploitation of oil and gas resources. How do you apprehend it from the angle of law?
I think we did a lot of things in this area. Institutions have been set up to prepare this, and debates have taken place. I believe that the government can be trusted with this policy in the interest of the nation. I was fortunate in the past to have had a trip to the Emirates, specifically in Dubai. I was surprised to see how they used their oil to build skyscrapers, 8-star hotels … You can not find that in some industrialized countries. In our countries, we have oil but we do not know what to do with it. There are not enough roads and even our predecessors on the African continent are not examples to follow. I do not see what their oil is used for since they have more problems than us. So what mechanisms can we put in place so that we can, when the time comes, avoid situations of this kind? This is what the political class must focus on. The debate around the issue seems very healthy to me and it is desirable that it continue in this way.
Have you felt the involvement of researchers in the development of these texts on resource management?
To tell the truth, I am completely outside this debate. This is not my area at all and I have no information on it. Under President Diouf, researchers were more involved in government activities. For example, when the government wanted to institute the mediator of the Republic, the legal adviser told me: "At the next symposium, you will be able to discuss the mediator's question because the President thinks about it but does not know what it will give. This is how we organized a conference on the relationship between users and the administration with people from all walks of life. They gathered all the feedback and it resulted in the writing of the text. Now, for some time now, it's the blackout.
Why did you stop the Ripas Review?
She was arrested in 2000 because I was posted abroad for 10 years. I was not there during the entire administration of President Wade. And now, we'll restart it. Only today we do not read as before.
People do not buy anymore, but they still read on the internet …
There you have it. Scientific publications do not interest them anymore. Happy that you are there. The trend, at one point in time, is that The Daily was publishing documents and that's very important. The government had to use this relay, which is newspapers, and facilitate communication. There is still this culture of secrecy that prevents the disclosure of certain documents that are not confidential.
Is not it because it was not well written?
Ah, that's you saying it. (Laughter)
You read the communiqués of the Council of Ministers for example. Are they well written today?
I can not comment on that, I do not have any benchmarks.
You know the administrative writing well. When you read some texts, you sometimes ask yourself questions?
Listen, the Constitutional Council itself has noted, for example, on its website, that there are errors in certain passages of the constitutional texts published in the Official Journal. What you are saying may be true because the texts are written faster now, and may be less well written than in the past. But at the General Secretariat of the Government, there are experts in the legal field, the technique of writing texts. It is therefore surprising that they are at the ankle and that there are problems with writing the texts.
On constitutional revisions, is President Macky Sall doing better or worse than his predecessors?
Better, less, beautiful, ugly, good, bad … it's not legal. (Laughter)
But if you make the comparison with others …
From which landmarks?
There are consolidating and deconsolidating revisions …
What does it mean ? No, they are notions of political science. Political science has tools to measure consolidation and deconsolidation. The law does not have such tools. The law can not make value judgments for comparing constitutional review practices.
You did see the constitutional revisions of Senghor to Macky Sall …
Yes I have seen, but I do not know if some are better than others. What I do know is that whenever a constitutional problem arises, it is adapted. The ideal for me would be to put in place a Constitution to which each governor adapts. It is not up to the Constitution to adapt to the rulers. It must come to that. This is where I say that the time of the inviolability of the Constitutions has passed and that it seems that we are entering the era of the mutability of the Constitutions. This is the case with the exception of North America, which is made up of immigrant countries, where the Constitutions are stable because those who set them up have fled war, religious persecution, and so on. So, they know the price of freedom. Where there is still stability, it is in dictatorship countries where the Constitution is like a museum article. But countries like ours, where every line is executed, there are not many. We are in the lead, we must not lose the first place. I am an advocate for the institutions of Senegal. There are no better institutions in Africa than ours. Do not delude ourselves. But that does not prevent me, as a citizen, on particular points, to say that it is not good. Beyond that, we must come to a point where the rulers remain in the constitutional mold. They leave and leave the Constitution as it is. Since this is not the case, it seems that for at least one or two decades, we will be in a system of cyclical Constitutions in which we will try to adapt to the environment …
With "constitutional tailors", as some call your colleague Ismaïla Madior Fall …
No I do not agree. If you reason like that, it is because all jurists are constitutional tailors. I do not see who is not. What is a lawyer? A person or organization needs internal rules to regulate its operation. She entrusts this work to a lawyer. Sometimes for remuneration, sometimes as a public service. The one who goes to the tailor says, "I need a long or short-sleeved boubou, give me a collar." Where is the difference? There are not any. The lawyer is not a senior decision maker. It is because some experts present their opinions as rules of law that one has the impression that the lawyer decides. But the jurist decides nothing, he organizes the decisions that are made by the decision-making body. Once you understand it like that, there is no problem. And then, the right is a unit of measure since you are talking about "tailor". Juridiquement, un kilo de sable est égal à un kilo d’or, ou à un kilo de pierres. C’est l’homme qui ajoute de la valeur aux objets pesés ou mesurés. C’est pourquoi la justice prend parfois la figure d’une jeune fille aux yeux bandés. C’est vous dire que le droit ne connaît pas l’usage qu’on va faire de son instrument. Donc, l’utilisation du droit à des fins autres que l’intérêt général, autrement dit l’instrumentalisation du droit, c’est quelque chose à bannir. La règle de droit est générale parce qu’on ne sait pas à qui on va l’appliquer et on ne doit pas le savoir.
Suite et fin
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