«Dura lex sed lex » The law is harsh but it is certainly the law but should it be applied without analyzing the context, the spirit, the legality and the legitimacy? Can a law be applied unfairly? A law is the spirit before the letter. The Case of the first magistrate of the city of Dakar Mr. Barthélemy Dias invites us to revise the relationship between politics, ldemocracy and administrative law.
In our societies, democracy has become inseparable from respect for the law. However, at the end of a secular evolution, the imperiumor the armed extension of sovereignty, can now only be exercised legitimately in compliance with the rule of law, even if this sovereignty emanates from the people; and, we must immediately add: control mechanisms must ensure the effectiveness of this respect.
This is therefore an angle that we can use to examine the question of the relationship between administrative law and democracy.
The policythis is a word that smells like gunpowder in Senegal and when it is attached to that of « justice », the conflagration is never far away. Justice and politics: an explosive alliance of terms for some, dissonant for others. The two words justice and politics seem to be linked together. However Georges Vedel (a French professor of public law and Former Member of the Constitutional Council) asserted that “in pure logic, there can be no political justice; the two words are contradictory.”
This distrust, if not this mistrust, for this locutionary union is based on an intellectual construction which assigns a limited role to the judge and an equally limited responsibility to the legal researcher.
Administrative law, an essential pillar of public management, has evolved over the centuries and has become a strongly jurisprudential law. Thus administrative judges have gradually identified numerous rules and they grant them a value greater than regulatory acts even emanating from central or higher authorities.
This is why we note that this situation, for political reasons, can lead to abuse of power: for example a prefect cannot dismiss a Mayor elected by universal suffrage. The mayor is elected directly by direct universal suffrage at the head of the majority list.
It must be recognized forfeiture of Barthélemy lat the head of lat Dakar Town Hall, land made of l ‘prevent by lthrough the defense and security forces hold a press conference in les locaux (an image that has tarnished the image of our democracy) without any notification of the cour d’appelnor of lat the supreme court, even less by a presidential decreelraises major questions about the instrumentalization of justice, legal loopholes or even a forfeiture which recalls the syndrome of non-respect of the word given (The confiscation of the vote of the Senegalese by the incarceration of Khalifa Sall is a forfeiture which will never be repeated again in Senegal and certainly not with the new mayor of Dakar Barthélemy Dias », declared Ousmane SONKO at the time).
So we are witnessing a double standard in the speeches and postures of politicians. Not to say that political principles change according to circumstances and ambitions. In other words, the promises to break are late has materialize in the face of the realities of power.
Indeed, article L.277 of the Electoral Code stipulates that the decision to declare a municipal councilor resigned becomes enforceable, unless appealed to the Court of Appeal within ten days following notification. However, the law does not specify the suspensive nature of the appeal, which creates a legal vacuum. A sacrosanct principle of law says: “Everything that is not prohibited in law is permitted”
We note a violation of the provisions of articles L29 and L30 of the new electoral code on extinctive prescription.
Furthermore, the conditions of ineligibility set out in articles L271 to L276 do not explicitly provide for the situation of Barthélemy Dias and in any case the constitutional council (not subject to appeal, ERGA OMNES imposes itself on the public authorities.) which is au- above all jurisdictions had already validated the candidacy of Barthélemy Dias.
All this reinforces doubts about the legality of the decision taken by the authorities against Mr. Barthélemy Dias and could simply recall the following syndrome already known with previous regimes: “the use of the judiciary to remove political adversaries. » And this could insinuate the position of the mayor of the city of Dakar, capital of Senegal with 50 billion CFA francs annual budget, which would make him a politically powerful man in 2029 (election year). At the same time, Mr. Maire Barthélemy is preparing the 2026 Youth Olympic Games with all the related economic and political issues.
We often say that il there is no neutral state : the procedure (legal or administrative) is in no way a guarantee of neutrality, more precisely it is only an appearance behind which oriented choices are hidden.
A procedural conception of democracy does not call into question the idea that decisions are motivated by substantial doctrines, but on the contrary intends to ensure that these can be expressed.
The modern conception of democracy is organized around the idea that the application of the law is not the responsibility of the sovereign people, who are responsible only for deciding its content.
We owe it to Rousseau to have drawn our attention to this question: the modernization of the republican idea presupposes the inalienability of sovereignty which can only belong to the people as they legislate. Political freedom requires that the government be forced to be only an executive organ, a subordinate body responsible for implementing public decisions.
Democracy as a method does not guarantee absolute freedom (no form of democracy, according to Schumpeter, does so), but we can estimate that, if everyone is free to seek political leadership by submitting an electoral candidacy, the freedom to opinion and discussion will be broad. To put it another way, the democratic method organizes a space for peaceful confrontation of substantial values, through the electoral game of designation. From this point of view, what is the opportunity to want to change a Mayor who has a track record knowing that the elections will be held in 24 months?
If the legitimacy of a political arrangement could be improved by constitutional arrangements which create a certain inequality of impact but involve no nuance or danger of indignity, it would be perverse to exclude the fact that administrative decisions must conform to the fundamental principles of law.
We are already talking about the installation of a municipal councilor, certainly to go towards a special delegation. But be careful of the abuse of power by putting the special delegation at all costs. Indeed, the designation of members of a special delegation is subject to the primacy of the requirement of political neutrality.
I invite our authorities to be more lucid in order to get to the essentials by highlighting:
- Non-partisan justice (rapid implementation of reforms la justice),
- By ensuring the preservation of democratic achievements (freedom of expression and demonstration) and living together.
- Rapid support for respect economic, social and cultural rights
(I.e. Right to food, Right to adequate housing, Right to health, Rights to drinking water and sanitation, Right to social security, Right to education and cultural rights. )
- making sure to banish hatred and revenge by putting this into practice:
When Love and Truth Meetlor justice and peace embrace (cf.PS84)
Mr.DENIS NDOUR
Human Rights Consultant
givel: [email protected]
Related News :