The procedural path of constitutional revision in Senegal: the route of Article 103 of the Constitution (By Dr. Mor Fall)

The revision procedure unfolds in two main phases, distinct in their nature and requirements: first, the initiative phase, which raises the question of who can trigger the process and under what conditions; then, the validation phase, which answers an equally fundamental question: how does the revision become final, and by whom? This contribution aims to faithfully reproduce these two phases.

I. A shared initiative

It all starts with an initiative. Before a revision can be put to a vote, it must be formally proposed. Article 103 outlines this step precisely, designating those entitled to initiate a proposal and establishing the conditions for its admissibility.

The President of the Republic has full and complete power of initiative. He can propose a revision on his own initiative, without having to seek the prior agreement of another body. This power is autonomous, reflecting the preeminence conferred upon him by the Senegalese system.

Members of the National Assembly also have the right to initiate legislation, in the form of a proposed amendment. This parliamentary right reflects Parliament's role as an expression of national sovereignty. Recent practice has shown that this avenue can be activated with remarkable effectiveness, particularly when the parliamentary majority aligns with the Executive's policies.

The Prime Minister can indeed propose a revision of the Constitution, but only by submitting it to the President of the Republic. He does not have an independent right of initiative. His proposal remains dependent on the President's willingness to adopt it.

Institutional practice has given rise to an original figure that observers have dubbed the "proposal-project." This term refers to the situation in which the parliamentary majority appropriates the content and presents it in the form of a proposal.

This structure is not without ambiguity. Formally, it is a parliamentary initiative. In practice, it reflects the will of the Executive. One could see it as a way of circumventing procedure, or, more favorably, as institutional collaboration between the branches of government.

II. Validation left to the discretion of the President of the Republic

Once the initiative is received and deemed admissible, the process enters its decisive phase: validation. It is here that the revision acquires—or not—its final normative force. This phase itself is broken down into two successive and legally distinct stages: adoption and approval.

The distinction between these two stages is central to the analysis. It is not a legal subtlety: it expresses a demanding conception of constitutional democracy, in which each stage has its own meaning and its own actors.

- Adoption: the first act of validation

Adoption is the first step in the validation process. It takes place according to the ordinary legislative procedure, as defined in Article 71 of the Constitution. The draft or proposed amendment is submitted to a vote in the National Assembly, which decides by an absolute majority of votes cast.

This step is important, but it does not conclude the process. By voting to adopt the bill, the National Assembly expresses its agreement for the revision to continue along its institutional path. It authorizes, in a way, the next stage of the procedure. But it does not yet give the revision its final character.

It is important to emphasize a crucial distinction: adoption falls under the ordinary legislative procedure. This means that the usual rules of parliamentary work apply: deadlines for submission, committee discussions, debate in plenary session, and a public vote. Revision is not a trivial matter, but at this stage, it follows the same procedures as ordinary laws.

- Approval: the completion of the procedure

It is the approval that makes the revision irrevocable. It is this approval that completes the process. And it is here that Senegalese constitutional law introduces a duality of paths, left to the discretion of the President of the Republic.

1. The referendum route — The theoretical principle.

In principle, the revision is final "after being approved by referendum." The sovereign people are called upon to vote directly on the text adopted by Parliament. This path is the most democratically legitimate: it closes the cycle by returning to the very source of sovereignty.

In practice, this approach has remained relatively marginal in Senegal. It is costly, technically complex, and politically uncertain. However, the President of the Republic has the option of pursuing it if he deems it appropriate.

2. The parliamentary route — The exception that became the dominant practice.

The constitutional text provides for an alternative path: the President may decide not to submit the revision to a referendum and to entrust it solely to the National Assembly. In this case, the revision is approved only if it obtains a three-fifths (3/5) majority of the votes cast.

This strengthened requirement — significantly higher than the absolute majority required for adoption — reflects the constituent's desire to compensate for the lack of popular consultation with a qualified parliamentary majority that is broader and more representative.

Furthermore, the two steps are distinct. They cannot technically be accomplished by the same vote at the same time. By adopting a resolution, the National Assembly signals its agreement to continue the procedure. By approving a resolution, it signifies its final acceptance. Chronologically, adoption precedes approval.

In 2005, during the adoption of the constitutional bill extending the term of office of members of parliament, the Constitutional Council was called upon to rule on the regularity of the procedure followed. Opposition members of parliament argued that the two stages had been improperly combined into a single vote. The High Court, adhering to its doctrine of limited jurisdiction, refused to rule on the constitutionality of constitutional laws—thus leaving the fundamental question unanswered. According to the Constitutional Council, "in the case of constitutional revision by the National Assembly alone, a three-fifths majority vote constitutes both adoption and approval." This wording of the Constitutional Council provoked strong doctrinal criticism. It leads to a merging of the two stages that the constitutional text clearly distinguishes. As our positive law currently stands, it is unacceptable to maintain that a single vote by the National Assembly can constitute both adoption and approval.

Dr Mor FALL, Lecturer at FSJP/UCAD.