L’ordre d’arrestation des députés du Pur émis par le procureur de la République risque de tomber à l’eau. Il est confronté, selon des enseignants-chercheurs en droit, à l’immunité parlementaire des mis en cause dans l’affaire Amy Ndiaye Gniby.
L’affaire Amy Ndiaye Gniby, député de la mouvance présidentielle, victime de violence physique à l’Assemblée nationale alimente les débats. Saisi d’une plainte par le groupe parlementaire Benno pour «coups et blessures volontaires», le procureur de la République a ordonné l’arrestation des deux présumés auteurs, en l’occurrence Massata Samb et Mamadou Niang, députés du Parti de l’unité et du rassemblement (Pur). Ces derniers, rapporte la presse en ligne, sont activement recherchés. Mais seulement, Amady Diouf est mal barré. Il est bloqué, rapportent des spécialistes du droit, par leur immunité parlementaire. Il s’agit de l’article 51 du règlement intérieur de l’Assemblée et de l’article 61 de la Constitution du Sénégal. Enseignant-chercheur en droit à l’université de Bambey, Dr. Abdoul Aziz Mbodji fait savoir qu’en cas de flagrant, le député peut être interpellé. «Mais le règlement intérieur de l’Assemblée nationale le protège. Les poursuites seront arrêtées dès que l’Assemblée nationale en fait la demande. C’est le sens inverse de la levée de l’immunité», précise-t-il dans un entretien accordé à WalfQuotidien.
Selon lui, l’infraction commise en pleine session plénière est adoptée dans les mêmes formes que la résolution portant levée de l’immunité. C’est pourquoi, dit-il, il serait difficile pour le procureur de pouvoir les poursuivre même avec flagrant délit vu la configuration de l’Assemblée nationale.Abondant dans le même sens, Serigne Thiam, enseignant-chercheur à la faculté des sciences juridiques et politiques de l’Ucad, fait savoir que la loi n° 2002-20 du 15 mai 2002, venue compléter le règlement intérieur de l’Assemblée nationale, est claire. Son article 51, note-t-il, dispose que «le membre de l’Assemblée nationale ne peut, hors session, être arrêté qu’avec l’autorisation du Bureau de l’Assemblée sauf en cas de crime ou de délit flagrant». Mais Serigne Thiam relativise. Selon lui, l’immunité cesse de jouer lorsque le délit est flagrant. «Dans le cas d’espèce, l’infraction de coup volontaire ayant provoqué un éventuel avortement s’est déroulée devant les yeux de tout le monde», note-t-il.
Plus loin, l’enseignant chercheur à l’université de Bambey convoque l’article 61 de la Constitution. Lequel article, dit-il, stipule qu’«aucun membre de l’Assemblée nationale ne peut, pendant la durée des sessions, être poursuivi ou arrêté, en matière criminelle ou correctionnelle, qu’avec l’autorisation de l’Assemblée dont il fait partie». En termes clairs, soutient le juriste, aucun membre de l’Assemblée nationale ne peut être poursuivi, recherché, arrêté, détenu ou jugé à l’occasion des opinions ou votes émis par lui dans l’exercice de ses fonctions.
Salif KA
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