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Association of Secretaries General of Parliaments UNION INTERPARLEMENTAIRE INTER-PARLIAMENTARY UNION Association of Secretaries General of Parliaments COMMUNICATION from MRS FATOU BANEL SOW GUEYE Secretary General of the Senate of Senegal on NON-EGALITARIAN BICAMERALISM: THE CASE STUDY OF THE SENEGALESE PARLIAMENT Geneva Session October 2009 INTRODUCTION Bicameralism draws its legitimacy from its capacity to council the representation of various interests and to improve the parliamentary work and the double control of the governmental action. Bicameralism is seen in new democracies not only as a vector of strengthening democracy but also and especially as a focal point of politics stability and balance. Since the Constitutional Act of February, 12, 2007 (Act 2007-06), Senegal has renewed with Bicameralism which has profoundly changed the Senegalese institutional landscape. By assuring the representation of local collectivities and Senegalese living abroad, the Senate leans on a sociological basis different from that of the National Assembly. In Senegal the Senate was implemented for the first time on January 24, 1999, then suppressed for economical reasons after a Constitutional referendum organized on January 7, 2001. Yet, it is also tremendous to notice that the reconsideration of the Second Chamber is more often linked to hostile political circumstances rather than a real reconsideration of the importance of bicameralism. Between a fully egalitarian bicameralism and a non egalitarian bicameralism, Senegal has chosen an intermediary formula, which even though it seems balanced for several reasons (I) still remains non egalitarian. I. A quite balanced Bicameralism It is to be noted that some powers conferred to the National Assembly are expanded to the Senate. Thus the Second Chamber has a perceptive power (A) as well as a real control power (B). (A) The Senate has a real perceptive power The Second Chamber participates on the one hand at the legal function (a) and on the other on the Constitution revision (b). (a). The Senate participation at the legal function According to the Constitution (Act 80), the bills presented by Senators, shall be formulated (4) in a written form and sent to the Senate president. The latter shall inform the Senate about it and shall inform the president of the republic about it before passing them (bills). Besides, Senators have amendment rights. However, with regards to the financial Act, proposals and amendments made by senators (as well as MPs) shall only be admissible when their adoption would consequently; either reduce public resources, or the creation or the worsening of government cost, unless these bills and amendments come with proposals of currency compensation (Act 80 Constitution). If during the legal procedure, a proposal or amendment is not in the area of the law, the Prime Minister as well as the other members of the government can oppose the inadmissibility. In the event of a disagreement, at the request of either the president of the Assembly or the Senate, the Constitutional Council shall decide within eight days. 2 (b) The Senate participation at the Constitutional review With the re-establishment of the Senate, the Senegalese institutional disposal underwent some changes. In fact, now each of the two institutions (the Assembly and the Senate) shall first vote the bill before it goes to a referendum unless the president of the republic decides to submit to the only institution summoned to the congress (National Assembly and Senate gathered to a majority of 3/5 of the popular votes). (c) The Senate has a real function problem The Second Chamber exercises a control on the governmental activity. This control can be done either directly or through the courts. a) Direct control The parliamentary control shall be exercised through structures and techniques that all have as objective the executive supervision in a sense that complies better with the nation’s aspirations. It is about organs or structures through which the parliament can be brought to exercise its powers. Besides the office or the conference of presidents who deal with administrative tasks only, commissions, the parliamentary groups and the plenary assembly. It is about contemplating procedures enabling to the parliament the right of exercising a control to the governmental activity through certain techniques. The rationalization of the parliamentary control brought the constituents to arrange techniques enabling the MPs to have a right of control on the defined policy and implemented by the executive. The Act 81 of the fundamental Charta enables Senators to ask oral and written questions to the members of the government on current affairs with or without debates. Which is a lot of sources of information to the MPs. b) Inspection calling upon legal action Despite the principle of the separation of the three powers namely the executive, the legislature and the judicial, the Senate has relationships with the justice because the High Tribunal Court is composed of members elected by the National Assembly and the Senate after each renewal of these Assemblies. That jurisdiction shall judge the President of the Republic in case of high treason and the members of the government in case of crimes or offences committed in the exercise of their functions. Besides a number of Senators at least equal to the half of the Senate members can seize the Constitutional Council of an appeal aiming at declaring a law anti constitutional. In addition, if the Senate is consulted by the President of the Republic, in relation to a referendum (Act 51) of the Constitution, and that it can play a role in the implementation of exceptional powers (Act 52 of the Constitution), we can think that there is in fact a bicameralism to use the terms of the Senegalese constituent in the preamble of the law bearing creation of the Senate. 3 However, the Bicameralism instituted in Senegal is not egalitarian at all. In fact, the election of MPs to the direct suffrage give them a stronger position which is the result of the Constitutional dispositions by having more important powers than the Senate, be it in terms of competences (A) or the control of the action of the government (B). (A) Inequality in matters of legislature Competences For the passing of the law, a kind of commuting is scheduled between the two chambers, but once examined by the Senate during a first reading, the bill is not returned to the Senate for a second reading if the National Assembly did not accept the amendments of the Senate or override at the rejection of law by the Senate, there is no more obligation of vote in identical terms by the two Chambers, also for ordinary laws, the bill is submitted first to the National Assembly, when the bill is adopted by the National Assembly, it is transmitted to the Senate which shall decide within a deadline of twenty days after receipt of the bill. If the Senate adopts a law identical to that of the National Assembly. The law is sent to the President of the Republic without delay for promulgation. In case of disagreement between the National Assembly and the Senate, or if the Senate did not take a decision within the reasonable dates, the National Assembly can decide for good. In addition, the opening date of the ordinary session is set by the National Assembly after having the opinion of the President of the Senate. Besides as for the financial law, the Parliament has a 60-day-deadline for its examination including 35 days for the National Assembly and 15 only for the Senate. In case of disagreement on the aforementioned law between the two Chambers, it is urgently transmitted to the National Assembly which has the last word about the issue. For promulgation, the law is only submitted to the National Assembly. It is important to point out that when the President of the Republic asks for a new deliberation of the Act before its promulgation, it is submitted to the National Assembly. This supremacy is also to the National Assembly by the Constitution during the control phase. (B) Inequality in Control Matters The efficiency of a control is always conditioned by its effectiveness. If necessary the control shall lead to a sanction. For these reasons, certain governments arrange for mechanisms of the government’s responsibility before the National Assembly. In Senegal, in case of a serious crisis, the National Assembly can bring the government to resign through the vote of a motion of censure (motion of no confidence), the motion of the signatures of 1/10 of the members of the lower chamber that is around 15 MPs. If the motion is passed to the absolute majority, the Prime Minister shall be doomed to give to the President of the Republic, the resignation of his/her government. 4 The Senate becomes a mere spectator of the tragedy being played before it, without being involved and cannot be dissolute. A declaration of war shall only be authorized by the National Assembly. Conclusion Yet, a real political will can bring to an end such unsteadiness, that is to say the implementation of a real parliamentary commuting, coupled with the settlement of a real parity joint committee could undoubtedly establish a fair balancing prerogative of the two Chambers of the Parliament, namely the National Assembly and the Senate. The adoption of a bill through commuting between the two Chambers shall remain the normal way of adopting laws. In fact, in a procedural context, where each of the Assembly legislates separately, the existence of a joint parity Commission or a mediation Committee, an innovation of many contemporary democracies, is of great efficiency, as it has succeeded in joining two objectives, which at first might seem contradictory: • On the one hand, the normal play of a balanced bicameralism where each Chamber can make their point of view stand; • On the other, favor the rapprochement of positions should a disagreement happen during the commuting.
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