The Constitutional Council: from boldness to avoidance

On 15 February 2024, Senegal’s Constitutional Council surprised many with its audacity. Faced with a major institutional crisis, it fully assumed its role as guardian of the Constitution’s supremacy and regulator of institutional functioning.

On 17 June 2026, seized of an appeal against the decision of the National Assembly Bureau that reinstated Mr. Ousmane Sonko as a deputy, the same institution appears to have taken the opposite path. The Council did not rule on the merits of the dispute. It declared itself incompetent.

At first glance, this may seem like a purely technical decision. In reality, it raises a much more fundamental question: what conception does the Constitutional Council now have of its role and its own jurisprudence? The debate deserves to be raised.

The applicants had not based the Council’s jurisdiction solely on Article 92 paragraph 3 of the Constitution, concerning its role as judge of the regularity of national elections. They also invoked Article 2 of the organic law on the Constitutional Council, as well as two major decisions of Senegalese constitutional jurisprudence: decisions No. 08/2017 of 26 July 2017 and No. 1/C/2024 of 15 February 2024.

Their reasoning had two parts. On one hand, the Council is the judge of the regularity of the election of deputies. On the other, it is the guardian of the Constitution and the regulator of institutional functioning.

It is precisely on this second basis that the Council’s silence is troubling. The decision of 17 June 2026 responds exclusively to the argument based on electoral jurisdiction. It recalls that the electoral judge’s mission ends with the definitive proclamation of results and that the contested decision came well after the November 2024 legislative elections. This demonstration is legally coherent. But it is insufficient.

Because the appeal did not only raise an electoral difficulty. It also and above all raised a constitutional problem directly affecting the functioning of the Republic’s institutions. The reinstatement decision of 24 May 2026 indeed challenged several fundamental principles: separation of powers, the regime of parliamentary and ministerial incompatibilities, and respect for the internal legality of the National Assembly in light of its own internal regulations. In other words, the debate concerned the conformity of an institutional act with the requirements of the Constitution—that is, a domain where the Council’s function of institutional regulation finds precisely its raison d’être.

How, in such a context, can the Constitutional Council ignore its own consideration 19 from its historic decision of 15 February 2024 on the postponement of the presidential election, in which it forcefully stated: ‘In light of the spirit and letter of the Constitution and the law on the Constitutional Council, the Council must always be able to exercise its regulatory power to preserve the general interest, public order, peace, the stability of institutions, and the continuity of their functioning.’ By this solemn affirmation, the Council was supposed to definitively break with a jurisprudence of incompetence by consecrating a dynamic conception of its mission as guardian of the constitutional order, allowing it to intervene whenever a major institutional crisis threatened the normal functioning of public authorities.

Paradoxically, the Council chose to avoid this fundamental question. It preferred to shift the debate toward the legal nature of the contested act to conclude its incompetence. This approach reflects an avoidance strategy: resolving the matter by a procedural solution rather than a substantive response. The method is not new in the history of constitutional litigation. When the constitutional judge did not wish to rule on a sensitive question, the path of incompetence offered a convenient escape. The result is that the constitutional question remains entirely unresolved.

Even more surprising is the position defended by Mr. Ousmane Sonko in his response brief. He argues that the Constitutional Council ‘cannot be called upon to rule on cases other than those expressly and limitatively provided for by the Constitution and the organic law.’ Such a position cannot fail to provoke astonishment. That he defends the legality of his reinstatement is part of normal adversarial debate. But supporting a restrictive interpretation of the Council’s powers is far more problematic.

For many years, those who now exercise power, along with the opposition, law professors, and civil society members, denounced the Council’s repeated declarations of incompetence when they prevented effective control of acts likely to undermine the Constitution and institutions. They then called for a more audacious constitutional judge, more protective of freedoms and more attentive to preserving the rule of law. It would be at the very least paradoxical if those who yesterday fought the culture of incompetence today become the artisans of its resurrection.

For that is indeed the real issue in this case. The question was not only whether Mr. Ousmane Sonko could or could not regain a seat as a deputy. The question was above all whether the Constitutional Council intended to continue the jurisprudential evolution begun on 15 February 2024, or whether it chose to return to a formalistic and restrictive conception of its attributions.

The decision of 17 June 2026 unfortunately provides a worrying answer: the return of a jurisprudence of incompetence.

Ultimately, this case poses a simple question: when a serious constitutional difficulty arises in the functioning of institutions, who must hear it if the Constitutional Council itself refuses to seize it?

By declaring itself incompetent, the Council not only closed a jurisdictional debate. It renounced its jurisprudential ambition and left a major constitutional question unanswered.

That is why the decision of 17 June 2026 will remain less as a decision on the parliamentary situation of Mr. Ousmane Sonko than as a moment of truth for Senegalese constitutional justice.

On 15 February 2024, the Council took a giant step by broadening the horizon of its mission. On 17 June 2026, it narrowed it by taking two steps backward.

Each will judge which of these two faces best serves the authority of justice and the supremacy of the Constitution.