In February 2024, Senegalese voters will go to the polls to choose their new President. For the first time in the history of the West African nation, the incumbent President will not run. Although the country has often been portrayed as a champion for democracy in a region punctuated by instability and coups, the forthcoming elections will be the real test for the rule of law. A sure sign is that the role of the courts has never been so crucial in a presidential race.

A paraphrase of military theorist Carl von Clausewitz’s famous words—that “war is merely the continuation of policy by other means” –aptly describes the current situation. Since the 2019 presidential elections, incumbent President, Macky Sall, and the main opposition leader, Ousmane Sonko, have been locked in fierce opposition. And over the past few months, Sonko and his party, PASTEF, have been caught in a saga of litigation that is currently preventing him from running for president. Indeed, in Senegal, litigation appears to be the continuation of politics by other means.

A litigation saga or a “mortal kombat”

On June 1st, 2023, Sonko was removed from the electoral rolls following the Dakar Tribunal’s decision finding him guilty of “corrupting young people,” an offense under article 324 of the Senegalese penal code, and sentencing him to two  years in prison. Because the decision was issued in absentia, Sonko could not appeal it.

The decision has been heavily criticized by Sonko and his supporters, who view it as a plan to derail his candidacy in the 2024 presidential elections.

Sonko’s supporters took to the streets to contest the judgment, leading to an unprecedented wave of violence, notably in Dakar, Ziguinchor, and Kaolack. Amnesty International documented serious human rights violations that occurred during the protests, including excessive use of force by security forces and attacks on freedom of expression and information.

Sonko’s legal troubles did not stop there.

On July 29th, 2023, he was charged with plotting an insurrection, criminal conspiracies, criminal association in connection with a terrorist body, and endangering state security. This decision was once again met with violent protests. Sonko’s political party, PASTEF, was dissolved two days later by a decree of the minister of Interior for “frequently calling on its supporters to insurrectional movements.” Following the new charges, Sonko was placed in detention.

These charges came only a couple of weeks after Sall announced that he would not run for a third term. For a long time, Sall had left Senegalese citizens guessing about whether he would run despite the Constitution’s ban on more than two presidential terms. Sall’s announcement also took the wind out of the sails of Sonko’s supporters, who had promised a “Mortal Kombat” against Sall’s possible third term run.

Contesting his ineligibility in the upcoming presidential race and the dissolution of his party, Sonko launched a legal counter-offensive.

He filed a petition with the Administrative Tribunal of Ziguinchor to contest his removal from the electoral rolls. On October 12th, 2023, the Tribunal ordered Sonko’s reinstatement on the electoral lists. The State judicial agent lodged an appeal before the Supreme Court, and Sonko’s situation remained unchanged. Because of the appeal, the Directions Générales des Election deemed that the ruling was not yet final and thus refused to reinstate him on the electoral lists.

On November 17, 2023, the Supreme Court overturned the decision and ordered the case to be retried before the Dakar High Court. And on December 14, 2023, the Dakar High Court finally ordered Sonko to be reinstated in the electoral rolls, although a lawyer for the state immediately said the government would appeal before the Supreme Court.

Though the Supreme Court procedure does not prevent Sonko from running for election, he remains in jail. He has until December 26 to submit his application before the Constitutional Council to officially become a candidate—only twelve days to get the required sponsorship from 44,000 citizens, 13 MPs and 120 heads of executive bodies.

Looking for a solution

In the meantime, Sonko had sought another judicial avenue to contest his party’s dissolution and removal from the electoral rolls. He brought a lawsuit before the ECOWAS Court of Justice, a regional court with a specialization in human rights, which does not require claimants to exhaust domestic remedies prior to approaching it.

Yet again, the regional Court denied his claims after finding that his human rights had not been violated.

Sonko’s presidential campaign is now at a standstill, but Sonko’s party has not admitted defeat yet. On November 19th, 2023, PASTEF endorsed a new candidate– Bassirou Diomaye Faye–as a safeguard in case Sonko is prevented from running. However, Diomaye Faye also is in prison. In April 2023, he was arrested for “spreading false news, insulting a magistrate, and defaming a constituted body.” He is currently awaiting trial.

In the past months, Ousmane Sonko has waged the battle for his political future in courtrooms, more than in the streets. But, as some have observed, his only option now might be to aim for  a political settlement outside the courtroom. If the Supreme Court confirms Sonko’s reinstatement in the rolls whilst he remains in jail, will Senegal become the first country to elect a prisoner as president?