This text addresses the issue of cohabitation. It follows on from the arguments I developed during the Jakarlo-bi program on November 15, 2024, the last day of the legislative election campaign, in a discussion with MP Thierno Bocoum, where I explained the limitations of applying the concept of cohabitation to the Senegalese institutional context. At the time, part of the opposition sought to impose a cohabitation model on the Diomaye-Sonko duo, to which I responded negatively.

Since 2015, and more specifically in the lead-up to each legislative election since 2017, I have been writing about the issue of cohabitation. A very political concept.

My position remains unchanged.

Given the constitutional architecture of Senegal, it seems difficult to mechanically transpose the notion of cohabitation as it is understood in France.

Recent events have prompted me to revisit this issue following the statements by the President of the National Assembly of Senegal, Ousmane Sonko, regarding cohabitation.

As always, and this is of paramount importance, when it comes to institutions, one must start with the concepts.

Cohabitation is not only understood within the National Assembly. It plays out at the head of the executive branch. It concerns the highest levels of the State and, more specifically, the relationship between the President of the Republic and the Prime Minister.

However, it retains a political dimension linked to the balances resulting from the legislative elections.

Moreover, in its classic definition, cohabitation refers to the situation in which a President of the Republic is forced to govern with a Prime Minister from a different political camp because the opposition has won the legislative elections and has a parliamentary majority.

It is clear, however, that the question of a parliamentary majority is important, not to say decisive. That's clear!

However, to understand why cohabitation exists in some systems and not necessarily in others, it is necessary to examine the constitutional distribution of powers between the President of the Republic and the Prime Minister.

This is where comparative law becomes indispensable.

NB: Like the President of the Pastef party Ousmane Sonko, the use of the French example is explained by the fact that cohabitation is a concept strictly derived from the French institutional system, where it has fully developed in its real complexity.

In France, articles 20 to 23 of the Constitution of the Fifth Republic grant the Prime Minister and the Government particularly important prerogatives.

It is important to remember that France was initially a parliamentary system. The 1958 Constitution initially entrusted the election of the President of the Republic to a college of parliamentarians and electors, before the 1962 reform established direct universal suffrage from 1965 onwards, thus enshrining a profound institutional rebalancing within the Fifth Republic. This original parliamentary imprint remains perceptible in the institutional balance and the functioning of the powers of the Fifth Republic.

Article 20 states that "the Government determines and conducts the policy of the Nation".

Article 21 specifies that "the Prime Minister directs the actions of the Government".

It ensures the execution of laws, exercises regulatory power and makes appointments to civil and military positions provided for by the Constitution.

Articles 22 and 23 of the same constitution complete this set by organizing the modalities of exercising governmental power and ministerial incompatibilities.

The consequence is simple. When a parliamentary majority hostile to the president wins the legislative elections, the president is forced to appoint a prime minister from that majority.

This Prime Minister has sufficiently significant constitutional powers to effectively conduct government policy.

This explains the three periods of cohabitation that France has experienced.

Mitterrand-Chirac between 1986 and 1988, Mitterrand-Balladur between 1993 and 1995 and Chirac-Jospin between 1997 and 2002.

Moreover, faced with the observation of a slowdown in the country's development, these experiences led France to reform its institutions. The shift from a seven-year to a five-year presidential term and the holding of legislative elections immediately after the presidential election were specifically aimed at reducing the risks of cohabitation by allowing the newly elected president to have a parliamentary majority consistent with his agenda.

In Senegal, the analysis needs to be different.

Since the institutional crisis of 1962 and the adoption of the 1963 Constitution, our system has been built around a strong presidency.

As a reminder, in 1962, Senegal had a parliamentary-type institutional organization, characterized by a dual executive. Powers were then divided between the President of the Republic and the President of the Council, with a notable imbalance in favor of the latter, who held most of the prerogatives in the conduct of the internal affairs of the State.

Following the events of 1962, under the impetus of President Senghor, Senegal then moved to a strong presidential regime, characterized by a concentration of most of the powers in the hands of the President of the Republic, who also remained for almost a decade without a Prime Minister.

Returning to the constitution of Senegal, it is worth looking at articles 42 to 49. They are particularly enlightening.

Article 42 states that the President of the Republic is the guardian of the Constitution, the guarantor of the regular functioning of the institutions, of national independence and of the integrity of the territory.

Most importantly, he determines the nation's policy and presides over the Council of Ministers.

This provision is fundamental.

Whereas Article 20 of the French Constitution states that the Government determines and conducts the policy of the Nation, Article 42 of the Constitution of Senegal explicitly confers this prerogative on the President of the Republic.

Article 43 stipulates that the president signs ordinances and decrees.

Article 44 grants him the power to appoint to civil service positions.

Article 45 makes him the supreme commander of the armed forces, the president of the High Council of National Defence and of the National Security Council.

Articles 46 and 47 grant him important prerogatives in diplomatic matters as well as the right of pardon.

Article 48 allows him to address the Nation directly.

Finally, Article 49 stipulates that he appoints the Prime Minister, terminates his functions and appoints ministers on the latter's proposal.

The dismissal of the Prime Minister is, as lawyers say, ad nutum. In other words, it can happen at any time and without the President being required to justify the reasons.

Thus, another difference between Senegal and France is noted at this level.

In French constitutional law, the president does not have an explicitly formulated power of recall as in Senegal.

Article 8 of the Constitution stipulates that he appoints the Prime Minister and terminates his functions upon presentation of the government's resignation.

A combined reading of these provisions reveals a constitutional reality that is difficult to dispute.

The center of gravity of Senegalese executive power remains the President of the Republic.

This is precisely where the fundamental difference between France and Senegal lies.

In France, cohabitation is possible because the Constitution grants the Prime Minister sufficiently significant powers that a change in the parliamentary majority profoundly alters the balance of the executive.

In Senegal, the bulk of the state's strategic powers remain concentrated in the hands of the President of the Republic.

The Prime Minister is certainly a major player in government action, but he does not occupy the same constitutional position as his French counterpart. He remains a primus inter pares, or the first among equals!

That is why I always maintain that it is difficult to mechanically transpose the French notion of cohabitation to Senegal.

In reality, political disagreements may exist. Tensions may arise. Divergences may emerge between the highest authorities of the State.

However, cohabitation, in the constitutional sense of the term, primarily concerns the top of the executive branch and implies a distribution of powers that our Constitution does not organize in the same way as the French Constitution.

In institutional matters, words have meaning. Before importing concepts from one legal system to another, one must always refer back to the texts.

Because ultimately, cohabitation is not just a question of parliamentary majority. It is equally a question of the Constitution.

In conclusion, as I suggested to the JDD, mastery of the Constitution is essential not only for the exercise of political responsibilities, but also for understanding political relations themselves.

Boubacar Mohamed R SY

Lawyer - Writer