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By stroking the pen to try, like a lawyer, to defend the admissibility of the candidacy of Karim Meïssa Wade, you, Judge Yaya Abdoul Dia, hold a political speech which, with difficulty, defends the indefensible in pecking in scraps of scattered texts. Your text, published July 16, 2018, has indeed a strong political reluctance that would not justify your position of judge on availability. The so-called technical varnish imbued with legalism does not change anything. Your motive is political
Dancing faster than the music, you seem, Judge, to be at the time of a candidature for a dissertation on the admissibility whereas one is not there yet there! When this serious hour of candidacy comes, your fellow Constitutional Judges will decide on the issue if the PDP who has legal experts goes to the end of a logic at the end of spring. There is no blocking when submitting an application. We will not prevent anyone from applying. It will be, when the time comes, to the Constitutional Council, to treat this question on the basis of the law. Your first words in excessive sentence on our democracy would have been enough to get an idea of the underlying motive of your free and partisan argument, but a deeper reading says enough about the difficulty of your demonstration.
You pretend to stay technical. Let us go simply to say that the enjoyment of civil rights is not a sesame that gives free and uncontrolled access to all doors. The filters put in place by the legislator deal in all respects with the conditions for the exercise of rights. Moreover, our Constitution clearly states in its article 8 that "These freedoms and rights are exercised under the conditions provided for by law". It is not a question of loss, but of compliance with the conditions of exercise of a right. Not fulfilling the criteria does not give the right that remains all not lost. You are well aware, Judge, that in addition to the Constitutional Law, there is the Electoral Code which determines, among other things, the conditions for registration on the electoral lists. Your argument is far-fetched for four remarks that I allow myself to make on your text.
1- On the Penal Code
Evoking, without repeating, Article 23 of the Penal Code, in your plea, you write this: "Under these provisions, only the condemnation to a prison sentence criminalizes civic degradation." It is you, Judge, who added the adjective "only" which is not included in Article 23 which says: "The condemnation to a criminal sentence will carry with it the civic degradation". There is no "alone" in this article which refers to a provision which is not exclusive to other rules of civic degradation.
2- Concerning the exercise of the right to vote
You argue that Articles 34 and 35 of the Penal Code "state that the courts may only prohibit their exercise when it has been authorized or ordered by a particular provision of the law". What is the truism of a judge in the light of the law? This is not a prohibition to be done by the courts in accordance with the targeted opinion of a judge to deal with the right to vote, but a general provision of a law applicable to all. that is to say, the Electoral Code which prohibits the registration on the electoral rolls of persons convicted of crimes or offenses and sentences clearly enumerated in Article 31 which I reproduce in full later in this text to not just the as you did, Judge
3- On the alleged prohibition of registration
You submit that the prohibition of registration on a list of electors constitutes a penalty and that any punishment entails the application of the Declaration of the Rights of Man and the Citizen. What about a ban on the issue of an identity card to a person who does not respect the rules defined in this regard? Is it a violation of human rights? You know well that the generic of the human rights is enlightened in application only by laws and regulations known to all. Apart from these laws, the ideal of positive law would have no concrete meaning and would give free rein to circumstantial and circumstantial interpretations.
4- On your reading of Article 31 of the Electoral Code
After legal alchemy, you finally dare to attack articles L31 and L32 of the Electoral Code, which, in your opinion, would be contrary to the constitutional provisions. Is it because they do not arrange Karim Meïssa? After a painstaking attempt to defend the indefensible, you seem to want to rewrite the Electoral Code to remove the candidate from your text from the rigor of the law. I leave the readers judges of your objectivity with variable geometry. By firing any law, up to mention the French law on civil rights, you have trouble, Judge, to circumvent the clarity of Article L31 of our Electoral Code. Precisely, this article that you refrain from taking back in extenso in your long argument on the admissibility allows me to reproduce it in its entirety for the free will of the readers recipients of our opinions. Article L.31 states: "The following shall not be included on the list of electors: 1) individuals convicted of a crime; 2) those sentenced to a term of imprisonment without suspended sentence or to a suspended sentence of more than one month, with or without a fine, for one of the following offenses: theft, fraud, breach of trust, drug trafficking, embezzlement and subtraction by public officials, bribery and trading in influence, counterfeiting and in general for any of the offenses punishable by more than five (5) years imprisonment; 3) those sentenced to more than three (03) months of imprisonment without suspended sentence or to a term of imprisonment of more than six (6) months suspended, for an offense other than those listed in the second above subject to the provisions of Article L30; 4) those who are in a state of absconding; 5) Bankrupts who have not been rehabilitated and whose bankruptcy has been declared either by the Senegalese courts or by a judgment rendered abroad and enforceable in Senegal; 6) those against whom the prohibition of the right to vote was pronounced by a criminal court of ordinary law, 7) the incapacitated persons. "
I honestly believe, Judge, that a first-year law student does not need the blinding excess of light of a judge-advocate to understand that a person sentenced for six years is subject to this article L31 which says well in its list effect "and in general for one of the offenses punishable by more than five ". It goes without saying.
In the end, Mr. Justice, your long and staggering demonstration to remove the candidate from the candidacy of the rigor of the law says a lot about the painfulness of your monstrous demonstration and full of artifices. Karim Meïssa was not in the file at the moment he showed up to register newly. Like hundreds of registrants, he was refused acceptance of registration by an authorized structure. He can freely exercise his right of recourse as certainly you would recommend it to him before speaking of admissibility of candidacy, forgetting that the moment is at the finalization of the lists of electors.
Free to you, the judge, to give your opinion of a lawyer who, in the end, is, in my opinion, an indelicate one with regard to your colleagues called, tomorrow, to say the law on these simple questions. It is not healthy for a judge, even in a position of availability, to put pressure on his judges who are in a position to decide. The function of judge is rather delicate and deserves less casualness especially coming from within.
I frankly believe that the Senegalese judiciary has no interest in receiving friendly fire on the basis of a biased political perception, without
You claim not to violate your status as a magistrate, but recognize that a friendly fire is more violent because it gives a certain opinion a false perception of the just. The nobility of the work of the magistrate requires more a submission to the law than an independence going as far as the "artistic" reading of the texts of law. Certainly, your magistrate friends will remain stoic in the face of friendly insinuations and treat these questions with confidence. As a free citizen without a hood, I do not think it is fair to caricature, as you did, our democracy. The judiciary, which can expect firing from political actors, does not deserve these friendly bullets with obvious political foundations and verbiage. Your point, Judge, is political and deserves a response from the politicians that we are, so that practicing magistrates do not descend from their pedestal made of measure and solemnity.
By Mamadou NDIONE
Economist, writer,
politician Apr Diass
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