Macky Sall has not yet decided whether he will run for a third term or not. But for the Senegalese president, he has the right to do so, legally in any case.
“On the legal level, the debate has been settled for a long time”. When he talks about a third term, the Senegalese president puts aside the “political” debate. He knows it: if he applies for his own succession, he risks triggering the anger of his opponents, but also of his ex-allies. If Ousmane Sonko has made the dam to a third term of Macky Sall one of his hobbyhorses, this is now also the case for Aminata Touré. The former Prime Minister, leader of Macky Sall during the legislative elections, believes that a third term is "impossible, legally impossible, morally impossible".
Morally, the question does indeed arise. But legally, for the Senegalese president, there is no longer any debate: "The legal question is therefore settled," he said. At the time of moving, in 2016, from the seven-year term to the five-year term, the Constitutional Council, recalls Macky Sall, "considered that my first mandate was intangible and that it was beyond the reach of the reform" constitutional. His third term would therefore be, according to the Head of State, a second term in reality.
The Constitutional Council, sole decision maker
Last February, Babacar Ba, president of the Forum du liticiable, also referred to the Constitutional Council, certain that the third term was far too subject to interpretations to be decided by ordinary mortals: "Even the greatest constitutionalists in the country are divided on the issue. We believe that it is up to the highest court in the country to say who should be a candidate and who should not be. Not respecting the institutions is weakening our rule of law,” he explained.
For Roger Koudé, professor of international law, the debate on the third mandate is a manipulation. “The issue of the third mandate or unlimited mandates”, he writes, is “a phenomenon which has affected all regions of Africa and which has been experienced in at least 26 States of the African continent. Similarly, we no longer count the number of African heads of state who, at the end of their second and normally last term, have manipulated constitutions to stay in power, against all odds”.
We remember the arguments of Alassane Ouattara. The Ivorian president had mentioned a "case of force majeure" after the death of Amadou Gon Coulibaly, the candidate of his party. But his third term, said the head of state, was legitimate, according to the Constitutional Council. The Ivorian regime had then put in place a well-rehearsed discourse: it was a question of saying that the constitutional amendment had given birth to a new republic. And therefore to a reset of the number of terms of the president.
“This is not President Ouattara's third term. Côte d'Ivoire has, since 2016, undertaken an in-depth constitutional change which gave birth to a Third Republic", summed up Sidi Tiémoko Touré, Minister and spokesperson for the Ivorian government.
In reality, constitutional scholars and legal scholars will continue to disagree about the legality of third terms all the time. Appeals to the Constitutional Councils are therefore the only answer to be given to the debates. However, there is a “moral” aspect to take into account. And it is now on this point that the discussions are played in Senegal, while in Côte d'Ivoire, no one has managed to push back Alassane Ouattara.
Between legal, political and ethical
“This debate is not only legal, it is political and then fundamentally ethical”, considers Ndiaga Loum, jurist and political scientist. The latter writes that the drafters of the Constitution did not decide on the question of the third term because "they wanted to leave as wide a field of interpretation as possible of the provision which governs the question". From now on, for the political scientist, “on the one hand is played the destiny of a single person or his 'clan', on the other that of a people. Unfortunately, it is when the time comes for painful choices that patriotism and intellectual courage run away”.
Still, Macky Sall is not yet certain to apply for a new mandate. One year before the presidential election, it would be premature to definitively settle the question. The Head of State prefers to wait to be certain about his "conviction of the moment". However, he specifies, “this can evolve and circumstances can lead me to change my position”.