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Doudou N’DIR préside la CENA dans l’illégalité totale, depuis le 31 mai 2011 (Par Seybani SOUGOU)

CONTRIBUTION

Aussi invraisemblable que cela puisse paraitre, Doudou N’DIR préside la CENA dans l’illégalité totale depuis le 31 mai 2011.

La date du 31 mai 2011 est cruciale car certains de nos concitoyens pensent (à tort) que Doudou N’DIR a été nommé en 2009 pour un mandat de 6 ans, à la tête de la CENA, ce qui est totalement faux. Il s’agit là d’une énorme confusion entretenue à dessein pour brouiller l’esprit des sénégalais.

L’alinéa 3 de l’article L.6 de la loi n°2005-07 du 11 mai 2005 portant création de la Commission électorale autonome dispose « En cas d’empêchement définitif ou de démission d’un membre de la CENA, il est pourvu à son remplacement par décret et par une personne appartenant à l’institution, l’association ou l’organisme dont il est issu ».

L’alinéa 4 dudit article précise que « Le membre nommé pour remplacer un membre de la C.E.N.A, achève le mandat de celui-ci ».

Les dispositions combinées des alinéas 3 et 4 de l’article L.6 de la loi n°2005-07 du 11 mai 2005 portant création de la CENA prévoient en cas d’empêchement définitif ou de démission, qu’un membre soit nommé pour achever le mandat du membre « empêché définitivement ou démissionnaire ».
 
Achever un mandat signifie terminer le mandat d’un autre.
 
Par décret n° 2005-517 du 1er juin 2005, Moustapha Touré, ancien magistrat a été nommé Président de la CENA. Le 26 novembre 2009, l’ex Président de la CENA Moustapha Touré a adressé une lettre au Président Abdoulaye Wade pour l’informer qu’il démissionnait de l’institution.
Nommé le 1er juin 2005, le mandat de Moustapha Touré, d’une durée de 6 ans, devait se terminer le 31 mai 2011, à minuit.

Suite à sa démission, Doudou N’DIR a été nommé par décret n°2009-1431 en date du 24 décembre 2009. L’article premier du décret de nomination de Doudou N’DIR est extrêmement clair ; « M. Doudou N’DIR, Magistrat à la retraite est nommé Président de la Commission Electorale Nationale Autonome (CENA) en remplacement de M. Moustapha Touré, démissionnaire » – cf lien du Journal officiel :

http://www.jo.gouv.sn/spip.php?article8032

Il est écrit noir sur blanc dans le décret de nomination de Doudou N’DIR « en remplacement de Moustapha Touré, démissionnaire ». Lorsqu’il y a démission, la loi prévoit la nomination d’un membre pour achever (terminer) le mandat du démissionnaire.

Pour clarifier la situation, Doudou N’DIR n’a pas été nommé en 2009, Président de la CENA, pour une durée de 6 ans. Il a été nommé pour achever le mandat de Moustapha Touré qui expirait le 30 mai 2011. Or le mandat de Moustapha Touré, qui a débuté le 01 juin 2005 devait expirer le 31 mai 2011. Par conséquent, Doudou N’DIR qui l’a remplacé devait quitter la CENA le 31 mai 2011 puisqu’il a été nommé uniquement pour achever le mandat d’un démissionnaire, comme le précise son décret de nomination ».

Il faut insister sur le terme « achever » dont la signification juridique est très claire : terminer.

La spécificité fondamentale de la loi n°2005-07 du 11 mai 2005 portant création de la CENA, c’est qu’elle ne prévoit pas qu’un membre qui achève le mandat d’un autre membre, puisse à nouveau, être nommé.

Nous avons comparé la loi organique de 2016 relative au Conseil Constitutionnel et la loi de 2005 portant création de la CENA, sur le point concernant le membre nommé pour achever (terminer) le mandat d’un autre membre.
Contrairement à loi organique du 14 juillet 2016 relative au Conseil Constitutionnel, la loi de 2005 portant création de la CENA ne prévoit pas que celui qui a été nommé pour terminer le mandat d’un membre, puisse à l’expiration de ce mandat, être nommé à nouveau, pour accomplir un mandat de 6 ans.

Comparaison entre la Loi organique de 2016 du Conseil Constitutionnel et la Loi de 2005 portant création de la CENA

Article 5 de la loi organique n°2016-23 du 14 juillet 2016 (Conseil Constitutionnel)

« Le membre du Conseil nommé pour remplacer un membre du Conseil dont le poste est devenu vacant achève le mandat de celui-ci. A l’expiration de ce mandat, il peut être nommé pour accomplir un mandat de six ans ».

Article L.6 de la loi n°2005-07 du 11 mai 2005 portant création de la CENA

« Le membre nommé pour remplacer un membre de la C.E.N.A, achève le mandat de celui-ci ».

La différence est claire, nette et précise. L’article L.6 de la loi de 2005 portant création de la CENA ne prévoit pas qu’un membre qui termine le mandat d’un autre membre, puisse à nouveau, être nommé. Alors que pour le Conseil Constitutionnel, la loi (article 5 de la loi organique de 2016) précise clairement que le membre nommé pour terminer le mandat d’un autre membre, peut, à nouveau, être nommé en ces termes « A l’expiration de ce mandat, il peut être nommé pour accomplir un mandat de 6 ans ».

Pour être plus clair, au niveau de la comparaison, prenons un exemple concret : Mme Aminata Ly Ndiaye, magistrat, a été nommée le 26 juillet 2021, membre du Conseil Constitutionnel pour terminer le mandat de la défunte Bousso DIAO FALL qui finit le 18 mai 2023. A l’expiration du mandat de la défunte (18 mai 2023), Mme Aminata Ly N’Diaye pourra, à nouveau, être nommée pour un mandat de 6 ans. La loi prévoit cette possibilité pour le Conseil Constitutionnel, mais pas pour la CENA (et même si la loi prévoyait cette possibilité, pour la CENA, ce qui n’est pas le cas,  Doudou N’DIR serait nommé pour un mandat unique qui expire en 2017: 2011+6 = 2017) .

Doudou N’DIR est maintenu illégalement à la tête de la CENA, depuis plus de 10 ans, une situation d’une extrême gravité. Il doit quitter l’institution dans les meilleurs délais.

L’illégalité du maintien de Doudou N’DIR à la tête de la CENA est confirmée par le rapport final de la mission d’observation électorale de l’Union Européenne sur les élections présidentielles de 2019 au Sénégal (cf les pages 19 et 20 du rapport)..

La nomination d’un nouveau Président de la CENA, doit intervenir, dans les plus brefs délais. C’est un impératif (une exigence légale).

Le Président de la CENA est hors la loi. Il ne peut ni présider la CENA lors des prochaines élections, ni contrôler, ni assurer la régularité, la transparence, et la sincérité des scrutins. Il en est de même pour les membres de la CENA dont le mandat a expiré.
La CENA est totalement décrédibilisée car Doudou N’DIR préside l’institution dans l’illégalité totale depuis le 31 mai 2011.
Les prochaines élections ne peuvent en aucun cas, se tenir au Sénégal, avec Doudou N’DIR, à la tête de la CENA.

Un à un, les institutions s’effondrent ; après le Conseil Constitutionnel, c’est la CENA, dont la composition est irrégulière et qui fonctionne dans l’illégalité la plus totale.

Sous Macky SALL, le chaos institutionnel atteint des sommets : le Sénégal est devenu un état délinquant.

Macky SALL après avoir joué les matamores, s’est résolu, difficilement (à contrecœur) à nommer finalement les 3 nouveaux membres du Conseil Constitutionnel. Il ne faut point en douter: nous traquerons un à un, toutes les personnes nommées à la tête de certaines institutions stratégiques et qui s’y maintiennent illégalement, soit parce que leur mandat a expiré ou soit parce le mandat de la personne remplacée est terminée (c’est le cas de Doudou N’DIR).

Toutes les portes sont fermées et cadenassées. Aucun « sorcier juridique » ne peut défendre Doudou N’DIR.
Cordialement
Seybani SOUGOU

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