From audacity to avoidance: the Constitutional Council’s shift
On 15 February 2024, Senegal’s Constitutional Council surprised observers with its daring stance. Faced with a major institutional crisis, it fully embraced its role as guardian of constitutional supremacy and regulator of state institutions.
On 17 June 2026, when asked to review the National Assembly Bureau’s decision to reinstate Ousmane Sonko as a deputy, the same institution appeared to take the opposite path. The Council did not address the merits of the dispute; it declared itself incompetent.
At first glance, this may seem like a purely technical ruling. In reality, it raises a far deeper question: how does the Constitutional Council now perceive its own role and jurisprudence?
This debate deserves attention.
The petitioners did not base the Council’s jurisdiction solely on Article 92, paragraph 3 of the Constitution, which makes it the judge of election regularity. They also invoked Article 2 of the organic law on the Constitutional Council, as well as two landmark decisions in Senegalese constitutional jurisprudence: Decision No. 08/2017 of 26 July 2017 and Decision No. 1/C/2024 of 15 February 2024.
Their reasoning had two parts. First, the Council judges the regularity of deputy elections. Second, it is the guardian of the Constitution and regulator of institutional functioning.
It is precisely on this second point that the Council’s silence raises concern.
The 17 June 2026 ruling responds only to the electoral jurisdiction argument. It recalls that the electoral judge’s mission ends once results are definitively proclaimed, and that the contested decision came well after the November 2024 legislative elections. This reasoning is legally coherent, but it is insufficient.
Because the petition did not merely raise an electoral issue; it also—and above all—raised a constitutional problem directly affecting the operation of the republic’s institutions.
The 24 May 2026 reinstatement decision challenged several fundamental principles: separation of powers, the rules on parliamentary and ministerial incompatibilities, and compliance of the National Assembly’s internal proceedings with its own regulations. In other words, the debate centred on whether an institutional act conformed to constitutional requirements—the very area where the Council’s institutional regulatory function finds its raison d’être.
How, in such a context, can the Constitutional Council ignore its own Consideration 19 from its historic 15 February 2024 decision on postponing the presidential election? In that ruling, 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, institutional stability and continuity of operation.’ With that solemn affirmation, the Council was supposed to have definitively broken with a jurisprudence of incompetence, embracing 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 sidestep this fundamental issue. It preferred to shift the debate to the legal nature of the contested act and then conclude it lacked jurisdiction.
This approach reveals an avoidance strategy: resolving the case through a procedural solution rather than a substantive response. The tactic is not new in constitutional litigation; when a constitutional judge does not wish to rule on a sensitive issue, a finding of incompetence offers a convenient escape. The result is that the constitutional question remains unresolved.
Even more surprising is the position taken by 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 exhaustively provided for by the Constitution and the organic law.’
Such a stance is striking. Defending the legality of his reinstatement is part of normal adversarial debate. But advocating a restrictive interpretation of the Council’s powers is far more problematic.
For many years, those now in power—along with the opposition, law professors and civil society—denounced the Council’s repeated declarations of incompetence when they blocked effective oversight of acts that might undermine the Constitution and institutions. They demanded a bolder constitutional judge, more protective of freedoms and more attentive to preserving the rule of law. It would be deeply ironic if those who once fought the culture of incompetence now become the architects of its revival.
Because that is the true issue at stake. The question was not simply whether Ousmane Sonko could regain a parliamentary seat. The real question was whether the Constitutional Council intended to continue the jurisprudential evolution it began on 15 February 2024, or would revert to a formalistic, restrictive view of its powers.
The 17 June 2026 ruling unfortunately provides a worrying answer: a return to a jurisprudence of incompetence.
Ultimately, this case poses a simple question: when a serious constitutional difficulty arises in the functioning of institutions, who is to hear it if the Constitutional Council itself refuses to take it up?
By declaring itself incompetent, the Council did not merely close a jurisdictional debate. It abandoned its jurisprudential ambition and left a major constitutional question unanswered.
That is why the 17 June 2026 decision will be remembered less as a ruling on Ousmane Sonko’s parliamentary situation than as a moment of truth for Senegal’s constitutional justice.
On 15 February 2024, the Council took a giant step forward by broadening the horizon of its mission. On 17 June 2026, it shrank that horizon by stepping two paces back.
Everyone can judge which of these two faces best serves the authority of justice and the supremacy of the Constitution.
On 15 February 2024, Senegal’s Constitutional Council surprised observers with its daring stance. Faced with a major institutional crisis, it fully embraced its role as guardian of constitutional supremacy and regulator of state institutions.
On 17 June 2026, when asked to review the National Assembly Bureau’s decision to reinstate Ousmane Sonko as a deputy, the same institution appeared to take the opposite path. The Council did not address the merits of the dispute; it declared itself incompetent.
At first glance, this may seem like a purely technical ruling. In reality, it raises a far deeper question: how does the Constitutional Council now perceive its own role and jurisprudence?
This debate deserves attention.
The petitioners did not base the Council’s jurisdiction solely on Article 92, paragraph 3 of the Constitution, which makes it the judge of election regularity. They also invoked Article 2 of the organic law on the Constitutional Council, as well as two landmark decisions in Senegalese constitutional jurisprudence: Decision No. 08/2017 of 26 July 2017 and Decision No. 1/C/2024 of 15 February 2024.
Their reasoning had two parts. First, the Council judges the regularity of deputy elections. Second, it is the guardian of the Constitution and regulator of institutional functioning.
It is precisely on this second point that the Council’s silence raises concern.
The 17 June 2026 ruling responds only to the electoral jurisdiction argument. It recalls that the electoral judge’s mission ends once results are definitively proclaimed, and that the contested decision came well after the November 2024 legislative elections. This reasoning is legally coherent, but it is insufficient.
Because the petition did not merely raise an electoral issue; it also—and above all—raised a constitutional problem directly affecting the operation of the republic’s institutions.
The 24 May 2026 reinstatement decision challenged several fundamental principles: separation of powers, the rules on parliamentary and ministerial incompatibilities, and compliance of the National Assembly’s internal proceedings with its own regulations. In other words, the debate centred on whether an institutional act conformed to constitutional requirements—the very area where the Council’s institutional regulatory function finds its raison d’être.
How, in such a context, can the Constitutional Council ignore its own Consideration 19 from its historic 15 February 2024 decision on postponing the presidential election? In that ruling, 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, institutional stability and continuity of operation.’ With that solemn affirmation, the Council was supposed to have definitively broken with a jurisprudence of incompetence, embracing 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 sidestep this fundamental issue. It preferred to shift the debate to the legal nature of the contested act and then conclude it lacked jurisdiction.
This approach reveals an avoidance strategy: resolving the case through a procedural solution rather than a substantive response. The tactic is not new in constitutional litigation; when a constitutional judge does not wish to rule on a sensitive issue, a finding of incompetence offers a convenient escape. The result is that the constitutional question remains unresolved.
Even more surprising is the position taken by 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 exhaustively provided for by the Constitution and the organic law.’
Such a stance is striking. Defending the legality of his reinstatement is part of normal adversarial debate. But advocating a restrictive interpretation of the Council’s powers is far more problematic.
For many years, those now in power—along with the opposition, law professors and civil society—denounced the Council’s repeated declarations of incompetence when they blocked effective oversight of acts that might undermine the Constitution and institutions. They demanded a bolder constitutional judge, more protective of freedoms and more attentive to preserving the rule of law. It would be deeply ironic if those who once fought the culture of incompetence now become the architects of its revival.
Because that is the true issue at stake. The question was not simply whether Ousmane Sonko could regain a parliamentary seat. The real question was whether the Constitutional Council intended to continue the jurisprudential evolution it began on 15 February 2024, or would revert to a formalistic, restrictive view of its powers.
The 17 June 2026 ruling unfortunately provides a worrying answer: a return to a jurisprudence of incompetence.
Ultimately, this case poses a simple question: when a serious constitutional difficulty arises in the functioning of institutions, who is to hear it if the Constitutional Council itself refuses to take it up?
By declaring itself incompetent, the Council did not merely close a jurisdictional debate. It abandoned its jurisprudential ambition and left a major constitutional question unanswered.
That is why the 17 June 2026 decision will be remembered less as a ruling on Ousmane Sonko’s parliamentary situation than as a moment of truth for Senegal’s constitutional justice.
On 15 February 2024, the Council took a giant step forward by broadening the horizon of its mission. On 17 June 2026, it shrank that horizon by stepping two paces back.
Everyone can judge which of these two faces best serves the authority of justice and the supremacy of the Constitution.
