CONSTITUTIONAL LAW 2

Course of Professor Martin BLEOU

Full professor at universities
(année universitaire 2022-2023)
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IVORIAN CONSTITUTIONAL LAW

INTRODUCTION

Constitutional law, which is the law that governs political power, does not exist
what is related to the State. This means that constitutional law does not encounter
that where there exists a State in the sense of an independent political entity. From this
Observation shows that Ivorian constitutional law has a link with the State of Côte d'Ivoire.
Ivory Coast. However, the State of Côte d'Ivoire has not always existed. Of course, some
populations of diverse origins were established on the land that forms today the
territory of Côte d'Ivoire. But, the State of Côte d'Ivoire, as an entity
organized and sovereign, did not yet exist. Its coming has a history that it
it is convenient to discover through the movement that led to the birth of
the State of Côte d'Ivoire. This movement includes two stages: there is the phase that
part of the birth of the colony to the status of a member State of the Community; and
There is the phase that goes from the Community to independence.

From the status of a colony to the status of a member state of the Community

On March 10, 1893, Ivory Coast was established as a French colony by the effect
of a decree from the President of the French Republic. As a colony, the Coast
Ivory Coast was devoid of any political life of its own. It was, therefore,
devoid of an autonomous constitutional right. It took until the end of the
Second World War to which, as in the first, Africans had
I participated, to see the emergence of a political and administrative embryo, and
this thanks to the famous Brazzaville Conference that took place on the 30th
January to February 8, 1944.
Local institutions, some deliberative, others executive, will
to be implemented. Furthermore, due to an ordinance from 1945, political life
French culture somewhat opens up to overseas citizens. Thus, some
representatives of the colonies – including Côte d'Ivoire – will be elected to sit in
the metropolitan assemblies as well as the French constituent assembly.
With the French Constitution of October 27, 1946 establishing the Fourth Republic
Republic, the movement is confirmed and consolidates. This Constitution having
revealed its weaknesses and shortcomings as a result of the events in Algeria
(attempted coup d'état led by a group of generals), General de Gaulle
is called to affairs; he is entrusted with the task of drafting the text of a new one
Constitution. The Constitution of October 4, 1958, developed under the impetus of
General de Gaulle will be adopted by referendum.

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 Taking into account the evolution of mindsets and, consequently, of the
the necessity to renew the relationships between the metropolis and the overseas territories
but, the text of the new Constitution offers the overseas territories the
possibility of remaining attached to France or gaining their independence. The
Guinea, under the leadership of Sékou Touré, votes 'no' in the referendum on the 28th.
September 1958 and thus attains independence. Côte d'Ivoire, therefore,
request of Mr. Félix Houphouët-Boigny, vote 'yes' at 99.99%, and chooses the status
Member State of the Community. However, belonging to the Community in its
the original form will only last a short time.

II- From Community to Independence

Shortly after the adoption and entry into force of the new Constitution, the
Federation of Mali, composed of Senegal and French Sudan (present-day Mali)
demand independence. However, under Article 86 of the French Constitution
From October 4, 1958, the status of independent state is incompatible with that
Member state of the Community. This means that the Federation of Mali does not
could access independence while remaining a member of the Community.
However, General de Gaulle was sensitive to the evolution of mindsets and to
the international environment that was hostile to the continuation of colonization.
Gaulle had therefore understood that it was better to channel the movement rather than to
to obstruct it. He then decided to grant the request that was presented to him. For
therefore, the revision of the Constitution of 1958 was necessary. Thus, on June 4, 1960,
Article 86 of the French Constitution of October 4, 1958 is revised. It is provided,
to this effect, a new paragraph, under which a member state of the
A community can become independent while still remaining a member of
the Community.
The constitutional obstacle thus lifted, the Federation of Mali gains access to
independence on June 20, 1960, then erupted on August 20, 1960, giving birth to
two distinct States: Senegal and Mali.
Following the Federation of Mali, Madagascar, through its Prime Minister, Mr.
Tsiranana requests and obtains independence while remaining a member of the
Community. Mr. Félix Houphouët-Boigny, a fervent supporter of the Community in
in its primary form, witnessing its decay, is ulcerated, revolted. It
presents, then, on behalf of the Council of the Entente, a request to the authorities
French, striving to achieve independence.
Negotiations are taking place between France and the different member states of
Council of the Entente. Regarding the case of Côte d'Ivoire, these negotiations
leads to the signing, on July 11, 1960, of an agreement known as a particular agreement
important transfer of skills from the Community to Ivory Coast.
In view of this development, measures are being taken in Côte
Ivory Coast: the revision of the Constitution of March 26, 1959 is being carried out.
Ivory Coast had established itself within the framework of the Community. The law
constitutional, intervened on the date of July 27, 1960, states in its article
1erThe State of Côte d'Ivoire is an independent and sovereign Republic.

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 Article 2 states: "The head of state, head of the executive, is the Prime Minister."
minister with the rank, powers, and prerogatives attached to these functions.
As for Article 3, it states: 'The parliament is composed of an Assembly'
unique said National Assembly.
On the same day, the Legislative Assembly of Côte d'Ivoire became the Assembly
national, approves the specific agreement concluded between France and Côte d'Ivoire.
Ivory Coast thus becomes an independent and sovereign state right after
the completion of these formalities.
Thus was born the State of Côte d'Ivoire with national sovereignty
international. This birth, which occurred on July 27, 1960, as a result of
The completion of the required formalities will be proclaimed on August 7, 1960.
Moving ceremony, living ceremony: a State was withdrawing, the French State;
another was born, the Ivorian State. At the Palace of the National Assembly, at the moment when the
August 6 dies on August 7, 1960, the Prime Minister, head of
new State–Mr. Félix Houphouët-Boigny–takes the podium and proclaims, at the
midst of the Ivorian people gripped by emotion, and of the French delegation
led by Minister of State Louis Jacquinot: 'By virtue of the inalienable right
that every people has the right to dispose of itself freely, I solemnly proclaim,
On this blessed day of August 7, 1960, the independence of Ivory Coast.
General de Gaulle sent this message of friendship to the new State.
The speech marked the end of the ceremony: 'Ivory Coast is becoming a reality.'
internationally responsible for its destiny. The faith and fervor of its citizens, the
the richness of its soil gives every reason to believe that it will successfully face its
independent state task. Côte d'Ivoire can count on the support of
France and its friendship will not be bargained with. I extend my fervent wishes to him.
and brothers of France. Long live Côte d'Ivoire, long live France.
The State of Côte d'Ivoire, which has just been born, as we can see, enjoys
sovereignty, which is the essential attribute of the State, of every State.
The question now is what happens with the other two elements.
constitutive elements of the State, namely the population and the territory.

Regarding the population, which is the material element of the State, one can
to say that it is made up of peoples from different tribes or ethnic groups that
colonization brought together on Ivorian soil.
Regarding the territory of the State, the documents of the time
pre-colonial and those related to colonization allow us to assert that it is the product
marked by an evolution of the seal of complexity. Indeed, bequeathed by the ancient
colonial power, the territory of Côte d'Ivoire was determined and outlined by
two different ways: the borders between Côte d'Ivoire and the former
French possessions that are Guinea, Mali, and Burkina Faso are
borders determined and drawn by France alone as a power
administrating. These borders are therefore the product of the French will because
that these territories were French possessions, and under these conditions, the
the determination of these borders met the needs of the colonial enterprise.
These borders were therefore administrative boundaries because they marked
the limits of territorial constituencies within the French state.

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 Once independence was achieved, these borders, which were merely administrative,
become political borders because they now separate states
sovereigns.
On the contrary, the borders with other powers were borders
policies resulting from agreements, treaties, conventions, arrangements or
of agreements concluded between France and these powers. This is the case of the border
between Côte d'Ivoire and Liberia, an independent state. This is also the case for the
border between Ivory Coast and Ghana, as Ghana, formerly Gold Coast,
was a British possession while Ivory Coast belonged to France.
So it was two powers or sovereignties that were meeting. These borders,
which were political borders, remain political at the advent of
the independence of Côte d'Ivoire.
Ivory Coast, born to national and international sovereignty, should
to organize itself by adopting a Constitution meant to form the foundation on which
The state had to rest. This point raises the question of the legal foundations of the state of
Ivory Coast and, consequently, that of the political regime of the new State.

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 CHAPTER 1: THE LEGAL BASES OF THE IVORIAN STATE

The legal bases of the State reside in the Constitution by which the State,
fact element becomes a subject of law. Those of the State of Côte d'Ivoire are
characterized by a certain instability of which the current element is the Constitution
November 8, 2016.

SECTION 1: The constitutional evolution of Côte d'Ivoire

Before gaining independence, Ivory Coast had equipped itself with a
Constitution, that of March 26, 1959, in its capacity as a member State of the
Franco-African Community. This Constitution, inspired by the Constitution
French of October 4, 1958, was established at the initiative of the government of
the State of Côte d'Ivoire, formed within the framework of the Community. Developed at
the initiative of the government and adopted by the Legislative Assembly, the Constitution
of 1959 had established a mixed-type regime: half-presidential, half-
parliamentary, in which the two political powers were equal and separated.
This regime was characterized by the complete attribution of executive power to the
Prime Minister, and by the existence of reciprocal means of action between the two
political powers: the power recognized to the legislative assembly to put into play
government responsibility through the two processes or techniques that
are the question of confidence and the motion of censure; which leads fully
law the dissolution of the Assembly.
When in 1960 Ivory Coast became an independent state, the
The Constitution of March 26, 1959 could not continue to apply. Because, made
for an autonomous State, that is to say not yet independent, this Constitution does not
could logically, reasonably, govern the new State which is vested with the
full and complete sovereignty. It was therefore necessary to endow the new State with a new
Constitution. Thus came the Constitution of November 3, 1960.

§1: The Constitution of November 3, 1960

This Constitution responded to a political and legal necessity.
account of the new political order. Its mode of establishment must be examined at
double plan for its development and adoption, after which, there will be a
critical appreciation of the procedure followed.

The drafting procedure

The elaboration evokes the question of writing or drafting the text of
the Constitution. In this regard, the first question that arises is that of initiative.
of the establishment of the Constitution. This was taken by the Prime Minister
elevated to the dignity of Head of State by the legislative assembly which transformed into
National Assembly. This initiative has intertwined with that of the other heads of state of
Council of the Entente. Indeed, the idea that supported the development of the new
The constitution was to establish uniform institutions for the member states of
Council of the Entente. Thus, the Heads of State of the Council of the Entente had
agreed on the necessity of having harmonized institutions. To this end, it was

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established a Committee of experts chaired by Mr. Philippe Grégoire Yacé, then president
from the National Assembly of Côte d'Ivoire. For the Ivorian side, the text
elaborated by the Committee of Experts was submitted to the Political Bureau of the PDCI-RDA, party
unique, who approved it. Then, the text was adopted by the government, becoming
thus a draft Constitution. The text then only needed to be
transformed into a legal act, that is to be adopted.

B-The adoption
The text was submitted, in the final instance, to the National Assembly which, for
the circumstance has transformed into a Constituent Assembly. It was examined according to the
procedure for revising the Constitution of March 26, 1959 and adopted unanimously
members of the Assembly. However, according to this procedure, recourse to the people is
excluded when the project or the proposal for revision has been adopted by the Assembly at
the majority of 4/5e of its members. This explains why it has not been organized.
of the referendum for the adoption of the Constitution, insofar as the text has
gathered all the votes from the members of the Assembly. The text was, by
the following, enacted as the Constitution of the State of Côte d'Ivoire on the date of
03 novembre 1960.
The political regime established by the Constitution of November 3, 1960 was the
régime présidentiel : le président de la République était le détenteur exclusif du
executive power; the National Assembly, for its part, had legislative power and
the budgetary power. It is true that the President of the Republic could not
dissolve the National Assembly. It is equally true that the National Assembly does not
could not overthrow the government or the President of the Republic either.
which gives the feeling of a balance between the two political powers. But, to the
truth is that this balance was only apparent. For, through the single party the
the President of the Republic controlled the National Assembly and governed life
entire policy. Thus, the political regime, intended to be presidential by the
constituent has transformed into a presidential regime, that is to say into a regime
committing, according to the expression of Professor Jean Gicquel, the grandeur of the Chief
of the State and the insignificance of the parliament.

C-The assessment of the constituent procedure

The procedure followed for the establishment of the Constitution of November 3
1960 poses theoretical problems of paramount importance. Indeed, it is in the
means of the procedure for the revision of the Constitution of March 26, 1959 that the
The Constitution of November 3, 1960 was drafted and adopted. However, it was not about
not to amend the existing Constitution, that is to say the one from 1959, but, to
contrary, to establish a new Constitution. Such a competence could not, in
no way, belonging to the derived constituent power or the power of revision.
It could evidently only fall under the original constituent power,
primary power whose manifestations could not be predicted and
conditioned by the previous Constitution.
On the other hand, the finished product brings to light the inconsistencies or
the illogic of the bodies that established the Constitution of 1960: through the technique of the
revision of the Constitution, they curiously arrived at a new one

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Constitution. However, the technique of revision only leads to the renewal of the
Constitution; it provides a renovated, modified Constitution; and this one keeps its
date. This means that, logically, the procedure followed should have led to
simply to the amendment of the 1959 Constitution, and not to a new one
Constitution: that of November 3, 1960.
Moreover, political power being that of the people as it results from the
proclamation of the Republic in 1958, the sovereign people should have intervened
to entrust a specially elected Assembly with the task of elaborating and
to adopt the new Constitution, or to invest the elected Assembly with the
mission to draft a Constitution project, the people reserving the right and the
power to adopt it.
Yet, the people have been ignored even though political power belongs to them.
follows from the fact that the procedure followed for the establishment of the Constitution of 03
November 1960 was flawed in many ways. Despite everything, political life
Ivory Coast will be governed by this Constitution until the arrival of President Henri.
Konan Bédié who succeeds President Félix Houphouët-Boigny following his death
from this one, in December 1993.
Six years later, the 1960 Constitution is suspended due to a coup.
State, and temporarily replaced by a decree enacted by the military and holding
place of Constitution.

§2: The Constitutional Act of December 27, 1999

President Henri Konan Bédié having been overthrown, the victorious military
made public, on December 24, 1999, a Proclamation. After having
criticized without restraint the regime of President Bédié, the military, through this
Proclamation, pronounces the suspension of the Constitution of November 3, 1960
considered as containing, since the constitutional revision of July 2
1998, new eligibility conditions for the presidency of the Republic
presenting an exclusionary, discriminatory, and conflictual character; they
pronounce, in the same motion, the dissolution of a certain number
constitutional institutions: the Constitutional Council, the National Assembly,
the Economic and Social Council. The Supreme Court, after having suffered the same fate,
was restored a few days later, after the Ivorian League of Rights of
the man would have shown the incongruity and absurdity of such a measure.
The suspended Constitution of 1960 had caused a
to fill. To this end, General Robert Guéi took, in the name of a
National Committee for Public Salvation (CNSP), a text called Constitutional Act, on the date
from December 27, 1999. This text served as the Constitution. Under the terms of this
The political power was entirely in the hands of the president of the Committee.
National Public Health, General Robert Guéi. He held multiple powers in his hands.
all political powers: he legislated by means of ordinances; he exercised the
regulatory or executive power by decrees in the Council of Ministers, by decrees
simple or by orders (regarding the organization of its Cabinet and services of
la Présidence de la République).
Exclusive holder of executive power, the president of the CNSP appointed the
members of the government and ended their duties, at their discretion.

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It is on this basis that General Robert Guéi was formed, on January 4th.
2000, a government essentially composed of three components: the Committee
National Public Health (CNSP), the Gathering of Republicans (RDR) and the
Ivorian Popular Front (FPI).
Temporary, this situation was destined to disappear to make way for a
normal constitutional order; hence the coming of the Constitution of the 1sterAugust
2000.

§3: The Constitution of 1erAugust 2000

The Constitution of 1erAugust 2000 responded to a necessity: to put an end to the
military regime through a consensual Constitution, capable of repairing the fabric
torn society, and consequently to reconcile the Ivorians. The procedure for its
The establishment must be restored through its development and adoption.
Having done so, we must remind that far from reconciling Ivorians, the said
The Constitution was, on the contrary, poorly received and violently contested by a
part of the social body.

The drafting of the Constitution of the 1sterAugust 2000

Three levels must be mentioned.

1-L’organe chargé de rédiger le texte : la Sous-commission Constitution

In the perspective of drafting the new Constitution, it was created
by decree of the president of the CNSP, head of state, on January 21, 2000, a
Advisory, constitutional and electoral commission (CCCE) whose mission
was to submit to the transitional government a draft Constitution,
a preliminary draft law establishing the electoral code and measures for organization
of free and transparent elections.
In the same movement, seven Sub-commissions were created to reflect and
produce texts related to different fields. One of these sub-
commissions was the Constitutional Sub-committee. The president of this Sub-
the commission, in the manner of the other Subcommittee presidents, was appointed
by decree of the president of the CNSP. The same applied to the members of the CCCE,
at the number of twenty-seven.
On the other hand, the members of the Constitutional Sub-committee, like those
The other Sub-commissions were designated by the 'vital forces of the nation'.
They emanated, in fact, from political parties, employers' associations, some
trade unions, women's movements and associations, orders
professionals, religious confessions, movements, and associations
students, NGOs, in short, all components of the socio-political body.
The representatives of these different entities were freely chosen: they
proceeded directly and freely from these structures.

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 2- The writing of the text
For several weeks, the Constitutional Sub-committee has been working in
a high-tension atmosphere: the political parties, driven by their interests
themselves, were clashing, especially regarding the eligibility conditions for the presidency
of the Republic. Some wanted to be retained and consecrated
flexible conditions in order to preserve social cohesion and, consequently, peace.
others understood that eligibility conditions should be set such as the
political power does not fall into the hands of 'adventurers' or '
"usurpers" with Ivorian nationality in the left pocket and another one
nationality in the right pocket.
The members of the Constitutional Subcommittee, for the most part
instrumentalized by political parties, supported this position or that one
according to the camp to which they were attached. Thus, if decisions could have been made
by consensus, it has not been the same regarding the conditions
eligibility for the presidency of the Republic. In the absence of consensus, it is up to the
majority that the questions relating to the eligibility conditions for the presidency of
the Republic have been decided. And the conditions retained provided, among
others, that the candidate for the presidential election must be 'Ivorian by birth, born
of father and mother themselves Ivorian by origin.
Beyond the general and impersonal nature of this provision, in
The spirit of everyone is the president of the RDR, former Prime Minister, who was targeted.
Le président Laurent Gbagbo le reconnaîtra lui-même en 2001 lors des assises du
Forum for national reconciliation, recalling that Article 35 of the
Constitution defining the eligibility conditions for the presidency of the Republic
was established because of the president of the RDR.
It should be noted that the eligibility conditions set by the Sub-commission
The constitution was part of a general movement that started in December
1994 through the electoral code seen as bearing the mark of what it
était convenu d’appeler l’ivoirité. Ce néologisme aurait été forgé, d’après le
Professor Sankharé Oumar - Senegalese, Associate Professor of Classical Literature (Latin and
Greek) and aggregate of French grammar – by the poet Léopold Sédar Senghor who
would have hesitated between ivoiritude and ivoirité, and would have finally opted for
Ivoirité.
The term 'ivoirité' originally referred to the set of civilization values
characteristics of the Ivorian; and it was in the 1970s. The Ivorian Niangoran
Porquet will later take up this word of Ivoirité and introduce it into his poetics or
griotique. Then, the arrival to power of Mr. Henri Konan Bédié will imprint the concept
from ivorité a new youth. Present in his speeches, from the first
In moments of exercising power, the term of ivoirité will receive its definition.
Bédiéist at the PDCI-RDA Convention held in Yamoussoukro.
August 1995. In President Bédié's program speech, the following can be read:
What we are pursuing, of course, is the affirmation of our
cultural personality, the flourishing of the Ivorian man in what constitutes his
specificity, what one can call its Ivoirité." The rest of Mr. Bédié's speech
it is understandable that ivoirité "is an original and fruitful synthesis between our
traditions and modernity.

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 It follows from what precedes that ivoirité, as defined by Mr. Bédié, has and does not have
a cultural meaning, like the neologisms of the same kind, conceived or
created by Léopold Sédar Senghor, and here they are: Africanity, Arabness, Frenchness,
Latinness, Normanity. But what will infect Ivorianess and make it appear.
as a concept of exclusion is contained in Mr. Bédié's very discourse, and
refers to immigration: 'As for us, he said, we must today
mastering immigration that has obviously reached a critical threshold.
the judgment regarding immigration is interpreted as the expression of Ivoirity,
this one is felt by its detractors as the doctrine of identity retreat which
tends to celebrate the Ivorian and push away the foreigner. Thus, one reads or discovers
Ivorian identity in the texts adopted at the initiative of President Bédié. These texts are
considered as hunting foreigners: first, the electoral code of
December 1994 which makes the eligibility conditions for the presidency more severe
the Republic; then, the constitutional reforms of July 2, 1998 that
welcomed the eligibility conditions for the presidency of the Republic as
established by the electoral code of 1994; finally, the law of 1998 concerning the domain
rural land in which foreigners saw elements of xenophobia through
only the Ivorians, excluding foreigners, could now,
access to rural land ownership, it being understood that foreigners having
acquired land in rural areas while retaining ownership, but could not
to transmit to their beneficiaries.

3-The reception of the text by the transitional authorities

The text, developed by the Constitutional Sub-Commission, reached the CCCE which
I amend it deeply, but leaving the conditions as they are.
eligibility criteria retained by the Constitutional Subcommittee. The text, as amended,
was forwarded to the CNSP which made some adjustments to it.
In light of the difficulties raised by the provisions of the text regarding the
eligibility conditions for the presidency of the Republic, the CNSP felt it necessary to
to gather, in the first instance, the views of the political parties. Then, it was organized
a consultation to which, in addition to the political parties, the various
civil society associations. At the end of this meeting, General Robert
Guéi, against the position of the majority, took, immediately and like
sovereignly, the decision to relax the eligibility conditions for the presidency
of the Republic. He noted that his decision was dictated by the necessity of
take into account the biological mixing of the Ivorian population. This decision is
translated by the substitution of the conjunction "or" for the conjunction "and". Thus, for
to be a candidate for the presidential election, it is no longer required that the father and mother of
the candidates are both Ivorians by birth. The conjunction 'or' gives
to hear that it is enough for one of the two parents to be Ivorian by birth. But, at
the general surprise, the same General Robert Guéi undertook, within the country,
information and explanation tours. The visited populations having
marked their preferences for the restoration of the conjunction "and", the general
access their desires by replacing, just two days before the event of
constitutional referendum, and in the midst of the campaign for the Constitution project, the
conjunction "or" by the conjunction "and".

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 Thus, according to the latest version of Article 35 of the draft Constitution, the
A candidate for the presidential election must, among other things, be Ivorian by birth.
born of parents who are themselves Ivorian by birth.
Such is the procedure followed for the development, that is to say the writing of the
text of the Constitution of the Second Republic. The text thus drafted needed to be
transform into a legal act by means of adoption.

On the adoption of the Constitution of 1heAugust 2000

It should be recalled that the coup d'état did not have the effect of transferring
the ownership of power by the military; they had, moreover, recognized it themselves
the same; political power remains the property of the people. The consequence that
is attached to the principle of the sovereignty of the people that the new Constitution
was to receive the anointing of the people of Côte d'Ivoire. To this effect, an event was organized
constitutional referendum on July 23 and 24, 2000. The participation rate was
a little over 56%, and the text received a little over 86% of the votes cast.
Thus was drafted and adopted the new Constitution which, promulgated on the 1ster
August 2000, became the Constitution of the State of Côte d'Ivoire, in replacement
from the Constitution of November 3, 1960 and, of course, from the constitutional Act of
27 décembre 1999.
It is true that the political parties had called for a "yes" vote; but, it is
just as true as this call had been given by the political parties
before the last modification of the text by General Guéi. In truth, the
popular consultation (referendum) could yield no other result than the
yes, insofar as in the spirit of everyone the question put to voters
It seemed like this: "Do you want to be led by an Ivorian, good stock, good blood,
Do you want, on the contrary, to have a stranger command you?

C- The rejection of the Constitution by a part of the social body

The reality is that the events related to the establishment of the Constitution of
2000 left deep wounds in the hearts: the rights activists of
the man and those from certain political parties, notably those of the RDR, saw it as
of exclusion, of xenophobia. An NGO with a suggestive name has even been born
following the establishment of the new Constitution: "SOS exclusion".
The rejection of the new Constitution by a part of the socio-political body has
triggered, in September 2002, an attempted coup d'état that turned into
armed rebellion dividing the country in two from East to West, with a buffer zone
say zone of trust.
er
The Constitution of the 1st August 2000 having been designated as the cause of the
rebellion, it was decided by the round table of Linas-Marcoussis, held in January
2003, to amend the provisions of article 35 of the Constitution defining the
eligibility conditions for the presidency of the Republic. The terms of
the amendments to be made to Article 35 have even been decided and recorded in
the agreement reached between politicians and armed movements.
But, given that it was an infringement on the integrity of the territory
national, the revision of Article 35 of the Constitution could not take place, because the

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The Constitution opposes the implementation of the procedure for its revision in
similar circumstances.
To overcome the obstacle posed by the absence of revision of Article 35 of the
Constitution, it was recommended by the international community to the president
of the Republic at that time to make use of its crisis powers provided for by the article
48 of the Constitution to address the issue related to eligibility conditions for
the presidential election. Thus, President Laurent Gbagbo took action on May 5, 2005,
on the basis of Article 48 of the Constitution, the decision making eligible for
the presidential election candidates presented by the signing political parties
from the Linas-Marcoussis agreement. Based on this, the presidential election was able to
hold in 2010. A new crisis has arisen, not related to the Constitution,
but regarding the results of the vote...
With the crisis contained or restrained, one logically expected to see
carry out the revision of the Constitution of the 1heAugust 2000, as decided by the
round table of Linas-Marcoussis. But, against all odds, a new
The constitution will be born: the Constitution of November 8, 2016.

SECTION 2: The establishment of the Constitution of November 8, 2016

Regarding the establishment of the Constitution of November 8, 2016 well
Questions come to mind: first and foremost, there is the question of
origins of this Constitution; there is, then, the point related to writing and, finally,
the question of the adoption of the text.

§1erThe origins of the Constitution of November 8, 2016

The new Constitution is an idea of the President of the Republic.
The idea raises questions whose answers must be gathered from
the author of the project.

A- Une idée du président de la République

La Constitution du 08 novembre 2016 a sa source dans la volonté du président
of the Republic which, on several occasions, has made known its intention to take
the initiative of a new Constitution establishing a IIIeRepublic. Indeed, in
October 2015, a few days before the presidential election, the
President of the Republic, in an interview granted to French media,
declared: "We will have a new Constitution, I hope, by next year
next
Then, immediately after the election he won, the President of the Republic,
In an interview, he restated and clarified his project in these terms: 'I am going to go
beyond nationality and eligibility by proposing another Constitution
for a IIIandRepublic ...

Finally, in the inauguration speech he delivered after his swearing-in

oath before the Constitutional Council, the President of the Republic emphasizes the
the necessity of a new Côte d'Ivoire and a new Ivorian. For him, this

12
involves strengthening the national reconciliation process and the necessity
to provide ourselves with a new Constitution that must guarantee the equality of all,
national cohesion and the stability of our institutions.
The project, here, powerfully but abnormally supported by the Council
constitutional through its president, has been recalled, since then, several times
repeated, by the President of the Republic. In truth, such a project did not leave
to surprise and, consequently, to raise questions.

B- The questions or issues raised by the project

How is it that, suddenly, on the eve of the presidential election and
after his re-election, the President of the Republic announces a new one
Constitution and, consequently, a IIIeRepublic?
In truth, such a project initially had something to surprise for the
reasons are as follows: first of all, the President of the Republic has exercised his first
mandate based on the Constitution of 1orAugust 2000 and using
abundantly the resources, by means of which, beyond the executive power
which he holds entirely by virtue of the Constitution, he has often exercised, at the
Place of Parliament, the legislative power taking orders or
decisions that have the force of law. This is, for example, the case of the ordinance of the 28th
October 2011 concerning the orientation of the general organization of the administration
territorial of the State. This is also the case of the decision of January 11, 2012
important creation, organization and operation of commercial courts.
Then, in October 2015, Ivory Coast had just organized the election
the most peaceful presidential election since 1990, and this based on the Constitution of
1erAugust 2000: the rules of the electoral game were those defined by the Constitution
from 2000; the examination of applications took place in accordance with the Constitution of
2000; the eligibility dispute was resolved in light of the provisions of
the Constitution of 2000; the final results of the presidential election have been
proclaimed by the Constitutional Council in application of the Constitution of 2000,
and social peace has not been disturbed. The crisis, then the civil war, that the
populations known from 2002 to 2011 have not reappeared. On the contrary, everything
the electoral process was marked by the seal of peace.
Finally, the surprise increases when one learns that in February 2014 the minister of the
Justice, relying on the provisions of the Linas-Marcoussis agreement, seized the
Constitutional Council of a request for an opinion regarding the procedure to follow
for the revision of Article 35 of the Constitution. The Minister of Justice
sought clarification from the Constitutional Council on a question regarding
about which, he wrote, "opinions are divided", some supporting that the
parliament is competent in the matter, others emphasizing the need to
to resort to a referendum.
The response, given by the Constitutional Council, was to understand that
According to the letter and the spirit of the Constitution, the referendum route was necessary.
constitutional reform, initially planned, did not take place, the procedure
not having been hired. Now, in the situation at hand, one could have understood
that constitutional reforms take place in the form of a revision of
the Constitution before the presidential election of October 2015, to draw lessons

13
from the past by exorcising the Constitution of the 1erAugust 2000 deemed discriminatory and
conflict. How is it that, in the meantime, we move from the project of
revision of the Constitution to the project of a new Constitution?
The question posed invites one to turn to the author of the project to
gather his response.

C-The response of the project author

In response to the question regarding the reasons supporting his project, the president of the
The Republic provides a response that highlights, on one hand, the objectives
pursued and, on the other hand, the choice of timing.

1- The objectives pursued

Regarding the objectives pursued, the President of the Republic stated
in the interview and the interview mentioned earlier, his intention to see Côte d'Ivoire
endowed with a Constitution oriented towards the future. This idea has been expressed in
the occasion of the swearing-in ceremony. The speech delivered by him
he dreams of "a new Côte d'Ivoire," that is to say of "a
"Ivory Coast in peace." This commands, according to him, the advent of a new
Constitution that must 'guarantee the equality of all, social cohesion and stability'
of our institutions." To this end, the new Constitution must enshrine the
disappearance of the provisions contained in Article 35 of the 2000 Constitution.
But, beyond the need to rid the new Constitution of provisions
conflicting, the president of the Republic intends to build 'a IIIe
Republic with greater coherence" and based on "a
A more modern constitution, more suited to our time and also for the
future.
The institutions that, in the eyes of the President of the Republic, meet his
vision, are, among others, from an organic point of view, a position of vice president
of the Republic, in the manner of Ghana or Nigeria, and from the perspective
normative, the lowering of the minimum age required to be a candidate for election
presidential from 40 to 35 years old.

The moment
Regarding the chosen moment, the head of state justifies it by stating that the
Constitution of 1heAugust 2000 "was manipulated by a group of people to make
all these exclusions." This Constitution was enacted, according to the Head of State,
in a time of crisis... It was necessary to let the situation calm down." This means
that according to the President of the Republic, the year 2016 was chosen because it
was the best suited for the realization of his project, peace having been regained.
The reasons supporting the project having been recalled, the way is now clear.
to the consideration of other questions, and first of all to the question relating to the writing of
text of the new Constitution.

14
 Section 2: The drafting of the new Constitution
The head of state having announced his desire to see a IIIeRepublic,
Questions were raised, initially regarding the body that would write or
draft this new Constitution, then regarding the content of this
new Constitution.
The second question, which is related to the content of the news.
Constitution had received some responses fairly early: the head of state
proposed to establish the position of Vice President of the Republic and
faire abaisser l’âge requis pour être candidat à l’élection présidentielle.
In contrast to the body responsible for writing the text of the new one
Constitution, the response of the head of state took time to be made known. Indeed,
It was only at the end of May 2016 that the President of the Republic put in place
unilaterally appoint a so-called expert Committee, responsible for drafting the text of
the future Constitution of the IIIeRepublic. As soon as appointed, this Committee received the
directives of the President of the Republic regarding the new Constitution:
from an institutional perspective, a vice-presidential position in the Republic should
to be created; the parliament was to become bicameral as a result of the creation of a
Senate adding to the National Assembly. From a normative point of view, the head of
The state had adopted the principle of lowering the age required to be a candidate for
the presidential election.
Shortly after the establishment of the Expert Committee, the Head of State received the
responsible for certain components of the socio-political body, namely the parties
politics, religious denominations, associations. The head of state them
informs of his desire to see Ivory Coast equipped with a new Constitution. He
he made them aware of the initiative he had taken in this regard. He informed them of the
nomination of a committee of experts and invited them to send their proposals to
this Committee.

The body responsible for writing the Constitution being known, the problem remained
that of the method to be followed and, consequently, that of the very content of the news
Constitution. In this regard, the Committee of Experts, according to the words of its president, has
I acted primarily as 'the pen of the President of the Republic'.
let it be known that the Committee of Experts has shaped the ideas of the president of
the Republic. The Committee of Experts also gathered, as recommended
the President of the Republic, proposals spontaneously presented by their
authors or raised by the Committee of Experts who, for this purpose, had made the rounds of
presidents of the institutions of the Republic.
The question that arose was about the fate of the submitted proposals.
to the Committee of Experts or collected by it; in case of contradiction between these
proposals and ideas of the President of the Republic, what to remember? In case of
conflict between the proposals coming from the different bodies, which ensures
the arbitration, which decides? And on what basis? In the name of what the Committee of experts,
devoid of any legitimacy, could he accept certain proposals and in
reject others?
These are many questions and concerns that have not received any
response.

15
 Another element, reported by the Committee of Experts itself, deserves to be
mentioned; it relates to the content of the new Constitution. Indeed, by-
beyond the ideas of the President of the Republic, beyond the accepted proposals
by the Committee of experts and approved by the President of the Republic, the text
the new Constitution has received many elements drawn from
Foreign constitutions. This method prompts the question: how does it happen -
that the Committee of Experts has turned to the outside to gather
principles and rules while it would have been more in line with the requirements
democratic to question the Ivorians to know what they wanted. Because, what
what is taken outside may not meet the needs or expectations of
Ivorians. In short, only Ivorians are qualified to say what is.
good for them.
In total, the text, developed according to the procedure outlined here, was transmitted to
President of the Republic who, in turn, submitted it to the Council of Ministers who
l’approuva dans la précipitation. Après quoi, le texte fut transmis en tant que
draft Constitution at the National Assembly which, under pressure, adopted it in
the haste without having been able to satisfy his desire to amend the text.
Regarding this stage of the procedure, one might wonder how
The National Assembly had to intervene. Indeed, it was not about revising the
Existing constitution, that is to say the Constitution of the 1sttheAugust 2000. It was,
rather, to equip the State with a new Constitution. The powers of the Assembly
national implementation simply consisted of the voting of the law, the control
of the government, and possibly in the revision of the existing Constitution.
This means that the National Assembly should not have intervened in the procedure.
of drafting the new Constitution. Because it had not been elected for this purpose.
This highlights the vanity of the thesis that presented the intervention of the Assembly.
national as the necessary step opening the way for the organization of the referendum.

§3: The adoption of the text of the new Constitution

As if to give a democratic character to the procedure
the establishment of the new Constitution, the head of state had conceived to
submit the text for adoption by the people through a referendum. To this end, it
adopted an organic law concerning the organization of the referendum, which will be
promulgated on July 26, 2016. Based on this organic law, it was
organized a constituent referendum in haste at the end of October
2016. The official participation rate was 42.42%, and the text was presented.
as adopted by an overwhelming majority, thus becoming the Constitution of the IIIe
Republic.
The constituent procedure presented here is certainly thought-provoking. It raises with
gravity the question of its relationship to democratic requirements.

§4: Assessment of the procedure followed

The procedure followed for the establishment of the Constitution of November 8
2016 presents itself as closer to non-democratic processes than to
those qualified as democratic. In short, the said procedure is far from being

16
democratic. This circumstance has certainly impacted the quality of the
text.

A- The undemocratic nature of the constituent procedure

One cannot consider the procedure followed as democratic for several reasons.
reasons: first, from the perspective of the project's design, the head of State has
took the decision alone to equip Côte d'Ivoire with a new Constitution,
passing over the decision made by the Linas-Marcoussis round table of
preserve the Constitution of the 1sterAugust 2000, but to revise Article 35 for the
purging discriminatory and conflicting provisions. The people were not involved
associated, no more than the living forces of the nation.
Then, regarding the conduct of the project: the head of state has appointed everything
only the members of the Committee of Experts. This Committee has drafted a text.
reflecting the sole will of the head of state, enriched with some contributions from
of foreign constitutions. The government and the National Assembly, which have
the stakeholders approved the text only under pressure, having not been put on
even to express themselves freely: they could not have the necessary time to
Study the text; the expressed desires for amendment have been stifled.
Finally, regarding the adoption of the text: the people have been used as instruments; they
could not have knowledge of the text before the vote; during the campaign in view of the
constituent referendum, the government envoys were addressing the populations
statements that have no relation to the text; they were addressing the populations the
question of whether they wanted water or asphalt, that is to say roads
tarmacked. More precisely, they said: "Do you want water? Do you want
asphalt" (meaning paved roads)? The populations that responded
by the affirmative, the envoys of power concluded: "... So, vote the
text.
It is under these conditions that the constituent referendum took place and that the
The text of the new Constitution has been adopted. The popular anointing, which could have
set things right by addressing the vices related to the initiative and drafting of the
text was corrupted; the people have thus been instrumentalized, objectified.
It follows from the above that the constituent procedure followed was not
democratic. Some defend it, however, by arguing that the texts
do not impose a procedure to follow in this matter. They deduce that one is
mal-fondé à critiquer la procédure suivie. Le raisonnement, que voilà, ne peut
Prosper: the procedure for establishing the new Constitution is not
foreseen and cannot be foreseen by existing law, as far as it concerns
to move from the old legal order to a new legal order. The legal order
The old one can no longer govern the procedure for establishing the new order...
The questions arising concerning this passage or movement are
so not legal questions whose solution would be provided by the law. This
are questions that fall under politics. And, from a political standpoint, the
power belongs to the people; the people should have been at the beginning and at the end of the
procedure, and he should have been brought to decide with full knowledge at all
long of the process. This means that the fact that the current Constitution does not address
the question of establishing the new Constitution does not open the door to

17
everything, does not allow everything, does not justify the procedure followed for the establishment
from the Constitution of November 8, 2016.
The defects, here they are, take away from the constituent procedure any character.
democratic. These flaws have certainly affected the text itself.

B- The repercussions on the quality of the text

Developed in a closed environment, the text of the new Constitution could not benefit from
the contribution of external experts. This circumstance seriously affected the quality
the text. It had serious weaknesses in form and content. As soon as the
known text, these weaknesses, of an surprisingly large number, have been
revealed and made public by me. The confessions received let
to hear that those in power have read the observations and criticisms made, and
that they were convinced of their righteousness. But they took no account of it.
The drafted Constitution project has thus been submitted to the people as is.
Adopted, its application was a source of difficulties in many respects. It was,
among others, the case of the constitutional law regime: these are subject to
to the mandatory control of constitutionality. But, the question regarding the bodies
qualified to refer to the Constitutional Council had received no response. One of them
can also mention the judicial organization, which was a source of disorder,
of an unacceptable intellectual disorder: the Constitution established the Supreme Court
comme juridiction suprême comprenant et contrôlant la Cour de cassation et le
Council of State, curiously qualified as the supreme jurisdiction in judicial matters
and of the supreme jurisdiction in administrative matters.
The question was how supreme courts could
to be the constitutive elements of another supreme jurisdiction. It followed that
other questions: on one hand, how the Court of Cassation and the Council
Could states exist and act as supreme jurisdictions, that is to say
as freed from the Supreme Court? On the other hand, how does the Supreme Court
could she exercise her supremacy and control over the Court of Cassation and the
Council of State?
The difficulties outlined here have led the legislator, in the work
of the organization of the judicial system, to advocate for coherence while violating the
Constitution. By the organic law determining the composition, the organization and the
operation of the Supreme Court, and the ordinary laws related to the Court of
cassation and to the Council of State, all dated December 27, 2018, the parliament
has made the Court of Cassation and the Council of State true jurisdictions
supreme in judicial and administrative matters, by stripping the Supreme Court
of its constitutionally established attributions, and confining it to a
task, in all respects, similar to that of the French Court of Conflicts, it is
to speak of the judge of conflicts of jurisdiction between the two orders of jurisdictions.
The disorder that is here is, in part, the cause of the constitutional revision.
en date du 19 mars 2020. Relativement à la question touchant le système
jurisdictional, the constitutional revision upheld the legislator's position, in
confirming the status and the powers recognized by law to the Court of Cassation and
at the Council of State. The derived constituent has even gone further by
simply abolishing the Supreme Court.

18
 It should be noted that the constitutional revision, which focused on twenty-six
articles of the Constitution, occurred three years and four months only after
the promulgation of the new Constitution, presented at the time by the
President of the Republic, as one of the best Constitutions in the world,
for which many congratulations would have been addressed to him by his
homologues.
Beyond the issue of the quality of this Constitution lies the question
of its legitimacy. This leads to questioning the survival chances of such a
Constitution to its author, especially since civil society and most parties
politicians had expressed their disagreement with the procedure followed. One can, from
then, to doubt that the new Constitution can govern Ivory Coast for a
century, contrary to the prophecy of the president of the Republic.

SECTION 3: The Authority of the Constitution

The Constitution is not an act like the others. It is the law.
fundamental and supreme. From this status arise consequences.

§1erThe Constitution, fundamental and supreme law

The Constitution is the founding act of the State in that it is the act that
organizes the State. It is, in fact, the Constitution that equips the State with organs by
which it acts. It cannot be otherwise as long as the State is a
legal entity. The Constitution is therefore the source of the institutions of the State.
as much as organs that make them live. It follows from this that the Constitution is the
the foundation of the State. This is why it is the fundamental law. From this it follows that the
The Constitution is the supreme law of the State and within the State; all bodies of the State are subject to it.
are subject. Thus, their actions must conform to the Constitution. It follows
hence the obligation for everyone, and first of all for the constituted bodies, to respect the
Constitution. This requirement only makes sense if sanctioned. Because, the Constitution
could not be respected.

§2: The sanction of the supremacy of the Constitution: the control of

constitutionality
The obligation to respect the Constitution implies the possibility of disobeying it.
the Constitution, and therefore the possibility of violating the Constitution, as noted by the
dean Francis Wodié. From there comes the institution of constitutional review,
intended to guarantee the supremacy of the Constitution.
Regarding this control, a number of questions arise: there is,
first and foremost, the question of the body qualified to carry out the control; there
and then, the question of the acts subject to such control; finally, there is the question
of the modalities of control and their effects.

The body responsible for control: the Constitutional Council

The Constitutional Council of Côte d'Ivoire, responsible for ensuring the
constitutional control was created only on August 16, 1994. Indeed, the

19
Ivorian Constitution of November 3, 1960, adopted following
the accession of Côte d'Ivoire to independence did not initially foresee the
Constitutional Council. In a concern for simplifying the organization
judiciary, Côte d'Ivoire had chosen the unity of jurisdiction, characterized by
the existence of courts of first instance, Courts of Appeal, and only one
supreme jurisdiction - the Supreme Court - within which was provided a
Constitutional chamber that served as a constitutional jurisdiction. It is
to say that constitutional justice lacked autonomy from the point of view
organic. Because the Constitutional Chamber was only a Section of the Court
supreme; and as such, it did not have the nature of a jurisdiction.
This situation was not unique to Côte d'Ivoire. It presented a
character of generality in the space of African states of French succession.
It was during a constitutional revision on August 16, 1994, carried out
under President Henri Konan Bédié, the Constitutional Council was born in
replacement of the Constitutional Chamber. This development was in response to
requirements of the rule of law while fitting into a
general movement in Africa, characterized by the establishment of jurisdictions
constitutional: Constitutional Council here, Constitutional Court there.
The Constitutional Council, as created, will operate until the coup d'état.
intervened on December 24, 1999. Dissolved by the National Salvation Committee, he
is replaced by a constitutional chamber through an order in
date of June 9, 2000 taken by General Robert Guéi, president of the CNSP. The
The constitutional chamber only had powers related to litigation of
the presidential election whose organization was supposed to mark the end of the transition.
Thus, the constitutional chamber had a transitional character, therefore
temporary. It was, in fact, linked to the political situation that was to normalize.
by adopting a new Constitution which will be that of the 1heAugust 2000.

The new Constitution, enshrining the IIeRepublic, restore the Council

constitutionnel. Celui-ci est maintenu par la nouvelle Constitution, celle de la III e
Republic, dated November 8, 2016.
In the political and legal landscape, and more specifically, in the landscape
institutional, the Constitutional Council is seen as a little-known institution, or even
badly known. We question, indeed, the legal nature of the Council.
constitutional. The Constitution of November 8, 2016 addresses this through its
Article 126, which states in its first paragrapherThe Constitutional Council is a
constitutional jurisdiction. It is independent and impartial." This means, in
In other words, the Constitutional Council is the body that ensures, according to the
word of the great Austrian jurist Hans Kelsen, "the jurisdictional guarantee of the
Constitution. The Constitutional Council ensures the supremacy of the Constitution.
by ensuring its respect, particularly through constitutional control.
C’est dire que le Conseil constitutionnel n’est pas une juridiction ordinaire, une
jurisdiction like the others. What is, then, the specificity of the Council
constitutional in relation to the judiciary?
The importance of the Constitutional Council is revealed by the Constitution itself.
even dedicating a specific title to him and granting him an honorable position at
the institutions of the Republic. The specificity of the Constitutional Council

20
results precisely from the role or mission assigned to it by the Constitution: the
The Constitutional Council, indeed, distinguishes itself from other jurisdictions in that
the other jurisdictions are the servants of the law; they apply the law; they
execute the law, while the Constitutional Council is, for its part, the judge of the
law, the censor of the law. In clear terms, while other jurisdictions are subject to the
No, the Constitutional Council, on the contrary, controls the law and, if necessary, censures it.
the law by annihilating it. But, the Constitutional Council is not just the censor of
the law; it also controls other acts.

B- The question of acts subject to the control of the Constitutional Council

The Constitution being the fundamental law and, therefore, the supreme law, all the
acts intervening in the State are submitted to it. The consequence attached to this
the supremacy of the Constitution is that all acts, irrespective of what they are, should
to be subject to constitutional review in order to assess the
It is unclear whether these acts occurred in accordance with the Constitution. And
however, the state of the law allows us to observe that only certain acts are subject to
to constitutional review, the others escaping such a review.

1- Acts excluded from control

The first type of acts excluded from control consists of laws.
constitutional laws adopted by referendum. These are the revision laws of the
Constitutions adopted by the people. The Constitution of November 8, 2016, at the
following the previous Constitutions, exempts these laws from judicial review
constitutional. One can infer the reasons supporting the unchallengeability of this category.
of laws; this unassailability is based on the sovereignty of the people. The
people being sovereign or the sovereign, it is conceived as unacceptable that its
will be controlled by the judge lacking legitimacy...
There are, then, the referendary laws, organic or ordinary, that the
The constitution does not submit to constitutional control either because
these laws emanate from the people themselves. Now, the people are sovereign; they are the
holder of sovereignty; and the essence of sovereignty is to escape
total control. One must acknowledge the non-justiciability of the referendum law
can lead to a challenge to the supremacy of the Constitution. Because it is
It is possible that a referendary law violates the Constitution. Escaping any control.
jurisdictional, such a law will not be sanctioned. This means that it will coexist
with the Constitution. In such a hypothesis, the question remains whether
which of the Constitution, the supreme norm, or of the referendum law, violator of
the Constitution, it is applied. Should we consider that the referendum law, due to the fact
of its posteriority, supplants the Constitution, or on the contrary, gives precedence to the
Constitution as it is the fundamental and supreme norm? And who would have
quality to slice?
Administrative acts must also be mentioned among the acts
subject to the control of the constitutional judge. These are decisive acts, it is-
i.e. decision-makers or containing decisions, issued by the authorities
administrative (President of the Republic, Prime Minister, minister, prefect,
mayor...). These acts evade the constitutional control ensured by the

21
Ivorian Constitutional Council. But, these acts are not exempt from everything.
control; they are subject to the control of the administrative jurisdictions which are the
administrative courts and the Council of State.

2- The acts subject to constitutional control

Alongside acts that escape the control of the Ivorian constitutional judge
other acts exist, which are subject, for their part, to constitutional control of
Constitutional Council: there is, first of all, and this since the advent of the
Constitution of November 8, 2016, the constitutional laws adopted by way
parliamentary (article 134, paragraph 1)erof the Constitution). This consecration, which
translate a turnaround, proceeds from the reflections carried out by the Council
constitutional in 2012 and 2013 as part of two seminars he organized.
Here, by dedicating control to the constitutional laws adopted through the process
parliamentary, the constituent establishes a difference in regime between the laws
constitutional laws adopted by referendum and the constitutional laws voted by
the parliament. Discrimination arises from the fact that in one case, it is the sovereign
himself who acts, who decides, while in the other case, it is the delegate of the
people who make the decision. And yet, the constitutional law, adopted by the
parliament has the same nature and the same authority as that which derives from the people.
It is part of the Constitution. It is on the same level as the others.
provisions of the Constitution, being an integral part of the same legal act. Now,
the logic of constitutional control is based on the assessment of the
legal regularity of infra-constitutional norms, that is to say lower than the
Constitution, in relation to the Constitution, supreme norm. Under these conditions,
how to explain that we control the legal validity of the provisions of a
act in relation to other provisions of the same act, all being situated in the same
level? This circumstance could have conferred to the adopted constitutional law
by Parliament, a status of non-justiciability.
Secondly, there are treaties or international agreements presenting a
certain quality, under the terms of the Constitution. More precisely, it concerns the
treaties whose ratification is subject to an authorization law. These treaties are
defines speaks Constitution. It concerns peace treaties, treaties establishing
of international organizations and treaties that modify the internal laws of
the State.
Thirdly, one must mention the organic laws which are laws
voted by parliament, but according to a particular procedure and superior to the
required procedure for the production of ordinary laws. These laws, which extend the
Constitution aims to determine the rules of organization and
functioning of constitutional institutions.
Fourthly, there are ordinary laws which are laws adopted by
the legislative body according to the common law procedure.
Finally, the last category of acts: the regulations of the Assemblies
parliamentarians and their amendments.

22
 C- The terms of control
The question is how the control of constitutionality is carried out.
and what are its effects.
The Constitutional Council has, in this matter, a competence.
of attribution, in the sense that the Constitution limitatively enumerates the acts
subject to the control of the constitutional judge. The regime of these acts provides for
distinguish between those subject to mandatory control and those who are
subject to optional control.

1-Mandatory control, a control by action

This control, which must necessarily take place and for which the Council
The constitutional court is necessarily seized, targeting four types of acts. These are
almost all of the acts already mentioned, namely the constitutional laws adopted by
the parliament, international treaties or agreements, organic laws and the
regulations of parliamentary assemblies.

a) The constitutional laws adopted through parliamentary means

These laws are subject to mandatory review under Article 134 of the
2016 Constitution. This type of control is something new in Côte
Ivory Coast. As is known, it had been suggested by the Constitutional Council him-
same. The reason that underpins the establishment of such control is that the parliament,
revising the Constitution, acts as an organ established by the Constitution
which outlines how it must intervene. Acting within this framework, the parliament
appears as a constituent power, but a conditioned power, subject to
all points to the Constitution. And the laws adopted by the parliament in this context
must comply with the Constitution. From this requirement arises the necessity for
constitutional review. However, as we have seen, the constitutional law, through its
nature and its authority, is at the same level as the provisions of the
Constitution with respect to which it is controlled. What is strikingly illogical is the
constitutionality control regarding it.
With this point accepted, many questions arise regarding this control:
First of all, who has the standing to refer to the Constitutional Council? To this question
fundamental, the Constitution had not provided any response. It was necessary to wait for the
constitutional revision dated March 19, 2020 so that the Constitution brings
the expected response: it is the responsibility of the President of the Republic, the President of
the National Assembly or the President of the Senate to refer the Constitutional Council.
When should the referral to the Constitutional Council take place? The
The response provided by the Constitution in its article 134 is that the referral to the judge
constitutional must intervene before the promulgation of the constitutional law, the
promulgation is the act by which the head of state certifies that the law is
regularly intervened, and consequently gives the order to execute it. Thus, the
Promulgation makes the law enforceable.
If the audit leads to a compliance decision, then the promulgation
may intervene. In the opposite case, the law is null; it will therefore not be able to
to be promulgated.

23
 b) International treaties or agreements
These are acts that the State of Côte d'Ivoire enters into with other subjects of
international law, particularly with other States. The Constitution states, in
in their regard, once ratified, these acts have a higher authority than that of
laws, as soon as they are published, subject to each treaty or international agreement.
from its application by the other party. Possessing an authority higher than that of the
laws, treaties or international agreements cannot be on the same level
that the Constitution, nor a fortiori above the Constitution. This means that they are
below the Constitution. Hence the idea of subjecting them to a control of
compliance with the Constitution before their ratification, that is to say before they are
are part of the legal order of the State of Côte d'Ivoire (article
134 of the Constitution). Article 122 of the Constitution designates, regarding the
referral to the Constitutional Council, the President of the Republic, the President of
the National Assembly, the President of the Senate or 1/10emembers of the Assembly
national or of the Senate. Curiously, Article 134 of the Constitution brings back the
right of referral to three organs: the President of the Republic, the President of
the National Assembly or the President of the Senate. Without the article 122 of the
The constitution has been amended or repealed!
But not all treaties or international agreements are subject to such
control. Only certain international commitments are targeted. Article 134 of the
The 2016 Constitution designates, for this purpose, the international commitments referred to
Article 120 of the Constitution, which states: "Peace treaties, treaties or
international agreements relating to the creation of international organizations, those
which modify the internal laws of the State can only be ratified following a
law.
The authorization law for ratification is subject to control by the
Constitutional Council.
These are the treaties or international agreements whose ratification is
subject to an authorization law, it being understood that for the ratification of
other treaties or international agreements do not require an authorization law.
The President of the Republic can, therefore, act freely.
The treaties or international agreements referred to in Article 120 of the
Constitution are therefore subject to mandatory control, and this control must
intervene before the ratification which is the act by which the State expresses its will
to be bound by the provisions of the treaty or international agreement.
The question is at what precise moment the control should intervene:
before the vote on the authorization law or after the vote on it?
Under the empire of the First and Second Republics, the vote of the law
authorization could only take place after the Constitutional Council, seized, has
rendered a decision of compliance with the Constitution. Thus the referral to the Council
The constitutional matter had to intervene before the voting of the law.

Since the advent of the Constitution of November 8, 2016, one can have
the feeling that things have changed: henceforth, the law, like the treaty,
is subject to the control of the constitutional judge. Can we infer that the

24
submission of the treaty to the control of the constitutional judge may take place before or
after the vote on the authorization law?
In truth, one does not see how the submission of the authorization law to
Constitutional control would affect or challenge the principle according to
the referral of the treaty to the Constitutional Council must occur before the vote
of the authorization law. Because, it is not clear how the law could authorize the
the President of the Republic to ratify a treaty whose conformity with the Constitution
has not yet been certified by the Constitutional Council. This means that the good
It makes sense to consider that the constituent of 2016 did not intend to delegate.
due to the principle of the prior control of the constitutionality of the treaty by
regarding the vote on the authorization law.
But then, insofar as the authorization law can only occur when the
following a decision on the conformity of the treaty with the Constitution, rendered by the
Constitutional Council, what is the point of submitting such a law to a review of
constitutionality?
Initially, the constitutional control of the law authorizing it is intriguing; it
does not seem justified. But upon reflection, one comes to the conclusion that such a
control is founded: in practice, it may happen that the authorization law is
voted while the Constitutional Council declared the treaty contrary to the
Constitution; it may also happen—and it has happened several times—that the
authorization law be voted on without the treaty having been submitted to the control of
constitutional judge.
In the scenarios outlined, the authorization law has intervened in violation.
of the Constitution. Its control would have the effect of sanctioning it and, consequently,
to prevent the ratification of the treaty.
On the other hand, in the event that the authorization law is adopted in the
following the decision of compliance issued by the Constitutional Council, the
the control would be justified: it would tend to verify the point of whether the rules of
the competence and procedure prescribed by the Constitution have been respected.
It will be observed that in the hypothesis where the treaty control leads to a
compliance decision, the way is opened for the ratification of the treaty. The
the President of the Republic can therefore ratify this after the parliament has
I voted for the authorization law.

If, on the contrary, the treaty is deemed contrary to the Constitution, then its
Ratification can only take place if a revision has been conducted beforehand.
from the Constitution. Some derive from this the argument that the treaty would be
superior to the Constitution.
One cannot infer any superiority of the treaty in relation to the
Constitution. For the treaty does not require amending the Constitution. It is the State that,
freely, sovereignly, decides to amend its Constitution for the purpose of ratifying and
to receive the treaty, just as, vested with its sovereignty, the State can decide
not to revise its Constitution...
To this argument, we can add the following: in the control operation,
the treaty is the controlled act; the Constitution is the reference standard. The act
controlled is logically and necessarily inferior to the act in relation to which

25
the control is carried out. One can infer that in the Ivorian internal order, the
The constitution is above the treaty.

c) The organic laws

They constitute a category of legislative acts that can be said to
take place immediately after the treaty, but before the ordinary law. In
In other words, organic laws are positioned between the treaty and ordinary law.
Their rank in relation to the treaty results from the Constitution which, in its article 123,
place the treaty above the laws without distinguishing between organic laws and laws
ordinary.
The purpose of organic laws is, as provided for in article 102 of the
Constitution, to specify or to complete the Constitution regarding
the organization and functioning of constitutional institutions. Their
adoption follows a specific procedure, distinct from the procedure required for
the adoption of the ordinary law. Given their position in the hierarchy of
acts, organic laws are part of, in some States, such as Benin or Côte d'Ivoire
Ivory Coast, reference standards, that is to say standards against which ...
the legal validity of ordinary laws is appreciated. It is undoubtedly for this reason
reason that organic laws are subject to mandatory control of
constitutionality before their promulgation.
Who seizes the Constitutional Council? The answer given by Article 134.
new resulting from the constitutional revision of March 19, 2020 gives knowledge
that the obligation to refer to the Constitutional Council rests on the president of the
Republic, the president of the National Assembly or the president of the Senate.
In the event that the organic law is deemed compliant with the Constitution, the
promulgation, which was suspended following the referral to the Council
constitutional, can intervene. But, if the organic law is recognized as contrary to
the Constitution, then, it is 'null', under the terms of the Constitution; such a law
cannot therefore be promulgated, except to take it up again in order to align it
with the Constitution...

d) The regulations of parliamentary assemblies and their amendments

The Constitution determines the rules governing Parliament in its two
Chambers that are the National Assembly and the Senate. It dedicates its Title IV to
parliament. It also regulates, through the effect of its Title V, the relations between the
executive power and legislative power.
But the Constitution sticks to the great masses, that is to say to the
principles. That is why Article 99 of the Constitution states that
Each Chamber establishes its own rules. The purpose of the rules is to
complete the Constitution by specifying the detailed rules concerning
the organization and functioning of the National Assembly and the Senate. In
The regulation governs the legislative procedure as a complement to the Constitution.
This means that the questions related to the examination, to the study in Committee, to the
discussion and voting on laws are, in part, governed in accordance with
regulations of parliamentary assemblies. It is understood, then, that in

26
certain states, such as Benin, the regulations of the National Assembly are part of
block of constitutionality, therefore reference standards. One also understands
In Côte d'Ivoire, paragraph 2 of article 99 of the Constitution imposes control.
mandatory constitutionality of the regulations of the parliamentary assemblies and
of their modifications before their implementation.
Logically, the declaration of conformity comes into effect, and
therefore the application of the regulation. Conversely, the decision of non-compliance
opposes the entry into force of the regulation and, consequently, its implementation
application.

Optional control
The control is said to be optional, as it opposes mandatory control. It is
marked with the seal of freedom. The interested parties exercise it freely. This type of
The control has two modalities. In other words, this control can occur
in two different ways: either by action or by exception.

a) Control by means of action

Here, the control targets ordinary laws that constitute the largest mass.
laws from a quantitative point of view. It is worth noting that the control
mandatory constitutional laws and organic laws are also a
control by means of action. But, unlike the control of ordinary laws, the
control of constitutional laws and organic laws is a control
absolutely mandatory. The common point lies in the fact that the control of some and
other laws necessarily intervene before the promulgation, whether it concerns the
mandatory control or optional control.
The specificity of the control of ordinary laws results from its nature.
optional which essentially makes it a control whose initiative is left to the discretion of a
certain number of bodies or individuals designated by the Constitution. Indeed,
under Article 113 of the Constitution of November 8, 2016, the bodies or
entities qualified to bring before the constitutional judge are the president of the
Republic, the president of the National Assembly, the president of the Senate, or a
1/10e at least some deputies or senators or parliamentary groups,
to which human rights defense associations should be attached
legally constituted.
It should be noted that regarding associations for the defense of rights
The man the Constitution provides that these cannot defer to the Council
constitutional that the laws relating to public freedoms, excluding others
laws.
In any case, the referral to the Constitutional Council must occur before the
promulgation of the law. It follows from this that the constitutionality control of the law
by way of action is locked in time.
The Constitutional Council, thus seized, is required to rule within a period of
fifteen days from the referral, as in other cases.
Under the terms of the Constitution, when the Constitutional Council declares the law
in accordance with the Constitution, it may be promulgated. This means that the

27
promulgation, which was suspended following the referral to the Council
constitutional, may, therefore, intervene.
On the other hand, when the Constitutional Council makes a decision of
contrariety or non-compliance with the Constitution, the question arises
regarding the fate of such a law: what becomes of the said law? Under the influence of
First and Second Republics, the law recognized as contrary to the Constitution was
simply deprived of effect in that it could not be enacted. A
such a law could therefore not produce its effects because it could not come into force
vigor
As can be seen, such a solution conflicted with common sense and logic.
legal. Because the review of constitutionality is not a review of effectiveness,
but rather, a validity check, that is to say legal regularity. We
understand, therefore, that this solution, borrowed from the French Constitution of
October 4, 1958, was heavily criticized by doctrine, and particularly by
the dean Francis Wodié, former president of the Constitutional Council. One understands
so that the Constitution of November 8, 2016 corrected such a situation. In
er
effect, according to the terms of article 137, paragraph 1 , from the Constitution, the recognized law
contrary to the Constitution by the Constitutional Council as part of the review
by way of action is "void with respect to all". And, because it is void, a
Such a law cannot be enacted.
But the law can be declared partially contrary to the Constitution.
this hypothesis, positive law offers to distinguish according to whether the provisions
judged contrary to the Constitution are detachable or non-detachable from
the entire text.
Dans l’hypothèse où les dispositions reconnues contraires à la Constitution
are detachable from the entire text, therefore the provisions in accordance with the
Constitutions can be subject to promulgation, excluding those
recognized as contrary to the Constitution.
On the contrary, in the event that the provisions contrary to the Constitution
are not detachable from the entire text of the law, then the provisions
contrary are struck by nullity and the law cannot be promulgated... The
Provisions contrary to the Constitution paralyze the entire law.
The developments mentioned above also apply to others.
categories of laws: constitutional laws and organic laws (article 137 of the
Constitution).
It should be noted, in conclusion, that the control by means of action, occurring before the
the promulgation of the law is called ex ante control. In this regard, it is a control
preventive. It is different for the other optional control modality that is
control by way of exception.

b) Control by way of exception

The control of the law by means of exception is a control that intervenes
subsequent to the enactment of the law and, consequently, after the entry into
force of law. It can only be exercised against the law that has not been the subject of
of a review before its enactment. This means that if the law has already been subject to

28
of a constitutional review before promulgation, the authority of the thing
judged opposes that the same law be subject to a new review...
This type of control begins with the invocation of unconstitutionality of the
law by the litigant on the occasion of a trial before the ordinary judge.
Regarding this control, the Constitution of November 8, 2016 provides in its
Article 135, paragraph 1erAny litigant can raise an exception.
the unconstitutionality of a law before any jurisdiction.
The exception having been raised by the litigant, it follows, in accordance with
Article 135, paragraph 2, of the Constitution states that "the jurisdiction before which the
the challenge to the law is raised, suspends ruling and grants the litigant a
a period of fifteen days to submit to the Constitutional Council. Upon expiry of this
deadline, if the applicant does not provide proof of the referral to the Council, the
jurisdiction statute
These are provisions that were already included in the Constitution of
er
1 August 2000, supplemented on this point by the organic law of June 5, 2001 relating to
at the Constitutional Council.
It can happen that the Constitutional Council makes a decision
of incompetence. This is the case when the appeal for unconstitutionality is made through
exception was directed not against a law, but against a treaty or a
International agreement (see decision n°CI-2012-131/27-03/CC/SG, dated March 27)
March 2012, regarding the request for unconstitutionality of articles 256 to 266 of
insurance code of the Inter-African Conference on Insurance Markets, known as
CIMA Code).
The Constitutional Council can also render a decision.
of inadmissibility. This is the case, for example, when the exception
The unconstitutionality was raised, not before a court of judgment,
but before the investigating judge (see decision n°CI-2009-15-10/0025/CC/SG, of
October 15, 2009.
Quant au fond, le Conseil constitutionnel, régulièrement saisi, peut constater
that the law is in accordance with the Constitution. Logically, such a law
applies to the ongoing trial as well as to future trials.
Mais, il peut arriver que le Conseil constitutionnel déclare la loi contraire à la
Constitution. In this hypothesis, what happens? What becomes of the declared law?
contrary to the Constitution?
Under the dominion of the first two Republics, the Constitution did not provide
no answer to such a question. She was silent on the matter. Also,
Has the Ivorian Constitutional Council been called to rule on the issue in
rendered, in 2014, under the presidency of Dean Francis Wodié, a decision
of the repeal of the law recognized as contrary to the Constitution by way of exception.
Thus, the law is not simply devoid of effect; it is repealed. Which means
that such a law disappears for the present and for the future.
It is fortunate that the solution chosen by the Constitutional Council has been
dedicated by the new Constitution in its article 137, paragraph 2, which states:
The law or provision declared unconstitutional by the Constitutional Council
is repealed." The interpretation that was made of it was that the effects produced
subsistent, survive the repeal, as suggested by the very term of

29
the repeal. The constitutional revision, dated March 19, 2020, has just
provide another reading: on the one hand, it is now clarified that the repeal
takes effect from the publication of the Council's decision
constitutional or a later date set by this decision." On the other hand, it
it is curiously offered to the constitutional judge the power to 'determine the
conditions and limits within which the effects produced by the provision are
subject to being called into question. The constitutional provisions that we have just
the reproduced documents show that the decision of unconstitutionality made by
the judge can produce a retroactive effect, thus causing confusion between
the cancellation and the repeal. However, it is interesting to note that the effects
Products that are abnormally produced contrary to the Constitution can be destroyed.
It should be emphasized, on the one hand, that the law, whether it has been declared conforming
or contrary to the Constitution, can no longer be subject to appeals, on the other hand,
that the decisions of the Constitutional Council, whether they intervene in matters of
control by action or control by exception, are imposed on everyone,
and first, to the constituted bodies. It follows from there the obligation to execute or
to apply the decisions rendered by the Constitutional Council, which are
not open to appeal.

SECTION 4: The amendment of the Constitution

While the establishment of the Constitution consists of the elaboration and
the adoption of a new Constitution, the revision, on the contrary, consists of the
modification of the existing Constitution. Thus, the revision may consist of a
addition or in a subtraction. The revision, as defined, poses problems
theoretical and raises questions of legal technique.

§1er The theoretical questions

The Constitution, as we know, is the fundamental and supreme law of the State.
est la condition de validité des autres normes au sein de l’Etat. La question est,
So, to know if such an act whose establishment follows a procedure
exceptional can be reviewed or modified.
The answer is obviously affirmative for the following reasons: the
The constitution, being called to govern society, cannot ignore.
of the changes or aspirations of society. If it remains deaf to the aspirations
and the needs of society, in other words if it is out of phase with the
company, it exposes itself to being abandoned or circumvented and, consequently, to a
certain death. On the other hand, it would be inconceivable for the generations that have
establish the Constitution taking into account their needs, linking generations
futures by denying them the possibility of touching their work.
It follows from the above that the Constitution cannot benefit from a status.
of immutability; it must be able to be modified or revised, the question remaining
the method to follow to achieve this.

30
 Section 2: The legal technique for the revision of the Ivorian Constitution
The legal technique of constitutional revision refers to the procedure
to follow in order to achieve the revision of the Constitution. This procedure, which makes
intervening in the derived constituent power involves, in Côte d'Ivoire, three main
steps. These are the initiative, the consideration of the initiative, and finally
adoption.

The initiative
The initiative can be defined as the legally expressed willingness to see
the amended or revised Constitution. According to Article 177, paragraph 1er, from the
Constitution of November 8, 2016, "the initiative to revise the Constitution
belongs concurrently to the President of the Republic and to the members of
parliament." This is a phrase that is found in most of the
Constitutions, and that Côte d'Ivoire has continuously enshrined since 1960.
It is appropriate, regarding the provisions that have just been reproduced, to make
a clarification: the adverb 'concurrently' should not be understood as the
synonym of the adverb 'jointly'. This means that the Constitution does not require
not that the initiative comes at the same time from the President of the Republic and the
members of parliament. The idea of competition must be understood as
meaning that the president of the Republic acts alone and that the members of
parliament acts, they too, on their own, without the assistance of the president of the
Republic.
The question now is whether the members of parliament can
to act individually or whether they can only act collectively. The answer is
that each member of parliament has the right of initiative in the matter of
Revision of the Constitution. Each parliamentarian can exercise it individually.
you should associate with others to do so.
One must know that emanating from the President of the Republic, the initiative gives
place to a constitutional bill. On the other hand, proceeding from the members of
parliament, the initiative produces a constitutional bill.
It should be noted that the initiative is regulated: it adheres to limits; it
First, there are the limits related to the timing. Indeed, according to Article 178,
section 1erFrom the Constitution, it is prohibited to engage or pursue the
Procedure for amending the Constitution "when the integrity is compromised
of the territory.
It adds to the limits which are those related to the object of the revision.
Indeed, through the technique of constitutional revision, it is not possible to
amend certain provisions of the Constitution: pursuant to Article 178,
paragraph 2, of the Constitution, "the republican form of government and secularism
of the State cannot be subject to amendment." This provision of the
The constitution makes it known that it is not possible to replace the principle.
republican, who argues that power belongs to the people, by another principle
which would place the source of power outside the people. This means that one cannot,
by means of the constitutional revision process, replace the Republic
by the monarchy or any other form of government.

31
 It is not possible to revise the Constitution in order to establish or
to dedicate a religion as the state religion. Thus, the principle of secularism of
The state is protected against any desire for change through the means of
revision of the Constitution.
It should be noted that the initiative is taken, either by the President of the
Republic, whether by the members of parliament, it must endure, according to the terms of the
Constitution, a test that is that of taking into consideration.

The consideration of the initiative

The question is settled by article 177, paragraph 3, of the Constitution of 08
November 2016. Considering the initiative is a phase that one does not
is not found in all Constitutions. Only a few Constitutions have it.
planned. This is the case with the Ivorian Constitution of August 1, 2000. It is
today the case of the Constitution of November 8, 2016.
The goal attached to the requirement of consideration is to filter.
the initiatives to keep only those that are or seem serious and,
worthy of interest, excluding untimely, fanciful initiatives or
inconsiderate. The consideration of the initiative aims to respond to
the question of whether the initiative that was taken deserves to be given a
interest, that is to say if it deserves to be examined in depth by pursuing the
procedure. In this, taking the initiative into account seems to be the
admissibility of the initiative. And it is only when the project or proposal
of revision was deemed worthy of study that one can consider that the taking of
consideration is acquired. The Ivorian Constitution entrusts the Congress grouping
the National Assembly and the Senate have the responsibility to decide on the consideration of
the initiative. Thus, under the terms of Article 177, paragraph 3, of the Constitution, "for
the project or proposal for revision must be voted on at the
absolute majority of the members of Congress.
Once this step is completed, comes the one that concludes the process, which is the step of
the decision. For, taking the initiative into consideration does not equate to the adoption of the
text.

C- The decision
This question called for a response from the constituent of 2016 that
translate a constant while introducing a new element.
First, the constant element, that is to say, which has not changed since the
Constitution of 1erAugust 2000: it is the principle according to which the decision concerning
The revision of the Constitution belongs to the people. Based on the principle that
which the people are the sovereign, the drafters of the Constitution of 2016, to the
the way of those of the Constitution of 2000, entrusts the final word to the people,
That is to say the power to make the decision to amend the Constitution.
This principle is clearly stated in Article 177, paragraph 4, of the Constitution,
in the following terms: 'The revision of the Constitution is not definitive'
(acquired) only after being approved by referendum with an absolute majority of
expressed suffrages.

32
 The new element, now: whereas under the Constitution of the 1sterAugust
In 2000, this principle could not be deviated from in relation to certain subjects.
(the election of the President of the Republic, the presidential term, the vacancy of the
Presidency of the Republic, the procedure for amending the Constitution), with the
Constitution of November 8, 2016, the exemption from the principle of referendum has not
no more limits, outside the subjects exempted from the review procedure.
Thus, henceforth, by virtue of article 177, paragraph 5, of the Constitution "the project
or the proposal for revision is not presented to a referendum when the president
the Republic decides to submit it to Parliament. In this case, the project or the
A revision proposal is only adopted if it meets the majority of 2/3 of the
members of Congress effectively in office.
It is observed that the Constitution of November 8, 2016 enshrines,
regarding the revision of the Constitution, a setback from the Constitution
of 1eraoût 2000, dans la mesure où il n’y a plus de matières qui soient soustraites

to the revision by parliamentary means, the President of the Republic may

decide at its discretion to do without the people by entrusting the parliament with the
care of revising the Constitution regardless of the object of the revision.
This right, recognized for the President of the Republic, can constitute a means
to bypass the people. In this, it carries the risk of transforming
the exception in principle, especially when the President of the Republic has the
two-thirds majority in Congress, as is the case under President Alassane
Ouattara who, by all means (including pressures, intimidation and
frauds), grants itself a comfortable majority in Parliament...
It remains to be added that adopted by referendum or by the way
parliamentary, the constitutional revision law must be promulgated by the
President of the Republic. However, concerning the constitutional law, adopted by
the parliament, the promulgation can only occur after the Council
constitutional, necessarily seized, declared it in accordance with the Constitution.

33
 CHAPTER 2: THE POLITICAL REGIME OF IVORY COAST: A REGIME
PRESIDENTIAL WISH

The presidential regime is a system of separation of powers, as it is

the parliamentary system. But, unlike the parliamentary system, the
the separation of powers in a presidential regime is said to be rigid. The two powers
the political powers of the executive and the legislative are distinctly separated. Thus,
the two powers are devoid of reciprocal means of action: the Chamber
the lower house of parliament, that is to say, the one elected by direct universal suffrage, cannot
overthrow the government. The President of the Republic also does not have
the power to dissolve the lower house of parliament. This ensures
the equality between the two political powers.
The presidential regime is also characterized by the organization of power.
executive: in a presidential system, indeed, the executive power is entirely
devoted to the President of the Republic. It is therefore the political system in which
the executive is not shared between the president and a government headed by
a Prime Minister. In a presidential system, the executive is therefore unicameral. This
which means that it has only one leader: the President of the Republic. Even in
the hypothesis where the executive includes a Prime Minister, the regime cannot be
presented as having become bicéphalous: the Prime Minister has no powers
own; it depends, in every respect, on the President of the Republic who appoints it and
he delegates some powers that he can revoke at any time. The regime
therefore remains monocentric, the Prime Minister cannot be held responsible for
a head, that is to say a leader in the full sense of the word.
This is how the presidential regime presents itself. It is this political regime that Côte
of Ivory Coast was made upon its accession to independence. The choice of this regime
go back to the Constitution of November 3, 1960. This regime was extended
by the Constitution of November 8, 2016.
What are the reasons that led Côte d'Ivoire to choose this regime?
Presidential? The answer to this question was provided by President Philippe.
Grégoire Yacé on the occasion of the drafting of the 1960 Constitution. This
response given to understand that for the authors of the text of the Constitution
1960, the young state of Ivory Coast was to be equipped with a strong executive, given
you had challenges of the moment. There were two challenges: the first challenge
was the construction of national unity, consisting of bringing back to unity the
multitude of ethnicities that colonization juxtaposed. It was necessary to build a
nation de-tribalized, stripped of all tribal traces.
The second challenge was to overcome underdevelopment by using all the
energies; it was necessary, for that, a strong executive. In other words, it was
imperative for the framers of the Constitution to entrust a president with the
broader powers to act effectively on underdevelopment, that is to say
to transform underdevelopment into development, like healing, it is
transforming illness into health," according to the expression of Dean Wodié.
It is on the basis of these considerations that the Ivorian political regime was
built; since then, despite the constitutional changes that have occurred, the regime
The presidential election is maintained.

34
 SECTION 1eraThe two political powers
Under the principle of the separation of powers, upheld by the constituent.
Ivorian, political power has been entrusted to two distinct bodies: the president of
the Republic and the parliament.

§1erThe President of the Republic

According to the general economy of the Constitution, the President of the Republic
is the key to the political institutions, as evidenced by its status and its
powers.

A - The status of the President of the Republic

Regarding the President of the Republic, one must distinguish between the
designation, the electoral litigation that may result, and the mandate.

1- The designation of the President of the Republic

Two levels must be detached and examined, namely the conditions
exigées et l’élection au suffrage universel direct.

a) The required conditions

The question has been the subject of an evolution of the Constitution of November 3.
1960 to November 8, 2016: under the authority of the 1960 Constitution, the
eligibility conditions, as defined by law, were flexible, probably because
that M. Félix Houphouët-Boigny was the sole candidate, except for the election
presidential elections of October 1990, the first of the multipartism period. He was
simply required to be Ivorian, to enjoy one's civil and political rights, and
to be forty years old.
These conditions change shortly after Mr. Henri Konan comes to power.
Bédié: the law of December 13, 1994, concerning the electoral code is amended
fundamentally the requirements to be a candidate in the election
presidential. Thus, henceforth, the candidate for the presidential election must be
at least forty years old", be "Ivorian by birth, born of a father and
of mother they themselves Ivorians by birth." "He must never have given up on the
Ivorian nationality. He must also have continuously resided in Côte
Ivory Coast during the five years preceding the date of the elections" (article 49
the electoral code of 1994). These new eligibility conditions will be incorporated into
the Constitution of November 3, 1960 as a result of the constitutional revision in
date of July 2, 1998. They will subsequently be transposed into the Constitution
of 1erAugust 2000, which introduced the age limit set at seventy-five years old
less.
With the Constitution of November 8, 2016, the eligibility conditions for
the presidential election is substantially modified; the first condition,
who is the one holding at the age is thus defined: the minimum age changes from forty to

35
thirty-five years, and the age limit disappears. Which, clearly, constitutes a
recul par rapport à la situation antérieure. Car, il est établi qu’à partir d’un
At a certain age, the body weakens, and so does intelligence. This circumstance would have...
ordered that one cannot be a candidate in the presidential election beyond a
certain age. This reflection is all the more true in a presidential regime
The President of the Republic holds all executive power. Hence the necessity
to demand that he is in good health and that he enjoys all his faculties
intellectuals. Hence, the need, again, to set a ceiling beyond which one
should no longer be eligible.
The second condition is related to the enjoyment of civil rights and
politics.
Finally, the third condition, retained by Article 55 of the Constitution, is
the condition of nationality. This is where one feels the most
relaxations introduced by the Constitution of November 8, 2016. The condition
nationality as a tenant is a very sensitive condition. It had been considered
as poorly regulated by the Constitution of 1erAugust 2000. From now on, the candidate for
The presidential election must be exclusively of Ivorian nationality, 'born of
Ivorian origin from father or mother.

b) The election by direct universal suffrage

For the President of the Republic to have the prestige and authority that
Due to its function, the Ivorian constituent did not want it to be elected by popular vote.
indirect universal. That is to say, the President of the Republic does not proceed
of constituted bodies or elected Assemblies. It derives directly from the people.
sovereign. He is elected by direct universal suffrage. The constituent wanted that thus the
the President of the Republic, anointed by the people, has a strong legitimacy for
carry out the missions assigned to him. Under the 2016 Constitution, he formed,
at the beginning, team with the Vice President of the Republic. The revision
The constitutional law of March 19, 2020 reestablishes the two-round majoritarian single-member vote.
tours, le vice-président de la République n’étant plus élu, mais nommé comme
the transitional provisions of the Constitution had foreseen it, but now with
the agreement of the parliament (new article 55 of the Constitution).
Thus, if at the end of the first round, an absolute majority has not been reached
obtained, then, a second round is organized in which only
the two candidates who received the highest number of votes cast at
first round" (Article 56.3 new of the Constitution).
Regarding the second round, the principle is that a simple majority is sufficient.
to be elected. This means that the candidate who won the most
the number of votes is declared elected (article 56.5 new of the Constitution). But, it
It may happen, a rare hypothesis, that there is a tie in votes between the two candidates at
second round. In this case, the candidate who received the
highest number of votes cast in the first round (new article 56.3 of
the Constitution). After which, pursuant to Article 58 of the Constitution, the candidate
proclaimed elected by the Constitutional Council takes an oath before the Council
constitutional, in the presence of the Vice President of the Republic.

36
 The presidential election at hand may be subject to challenge. It is the
electoral litigation question.

2-The electoral litigation or the control of the presidential election

Overall, the control of the presidential election falls under the terms of the
Constitution, of the Constitutional Council. However, it should be noted that apart from the
Legislative texts, the preparatory acts and operations are exempt from the Council.
constitutional. Only the four levels that fall under the constitutional judge are
here: the control of sponsorships, the incidents likely to affect the
electoral process, the control of eligibility, and the control of the election.

a) The control of sponsorships

The ordinance dated April 8, 2020 concerning the revision of the electoral code,
but who, curiously, reproduces the entirety of the electoral code articles in it
modifying certain ones raises, among other things, a new requirement regarding
the presidential election: that of the sponsorship of any candidacy for the election of
President of the Republic 'by a list of voters representing one percent
(1%) of the local electorate, in at least fifty percent (50%) of the districts
autonomous and regions" (article 51, paragraph 2, of the electoral code). And "a voter
can only sponsor one candidate" (article 54, paragraph 4).
The electoral code assigns to the Constitutional Council a role concerning the
control of sponsorships. But, the Constitutional Council is not alone in
intervene. Under Article 54, paragraph 11, of the electoral code, the Council
constitutional ensures the control "of the sponsorship lists of applications", "in
relationship with the Commission responsible for elections, that is to say the Commission
independent electoral. Here, the Constitutional Council does not have the monopoly of
control; he shares it with the CEC: the practice has revealed that the Commission
independent electoral body receives endorsements, conducts a check and transmits
the files, for examination, at the Constitutional Council. It is therefore the Council
constitutional body that rules on the regularity, and thus on the validity of the sponsorships.
But the requirement for sponsorship served as a pretext for the elimination of a certain
number of applications for the presidential election; candidates whose number
The sponsorships received were, in front of the Independent Electoral Commission,
higher than the required number of sponsorships, saw, in the presidential election
from October 2020, their application rejected by the Constitutional Council for
insufficient sponsorships, on the grounds that the voters who had granted them
their sponsorship had, before them, given their endorsement to other candidates. A
This situation raises many questions, especially since the decision of the Council
The constitutional matter is not subject to appeal. However, it merely asserts, it does not
prove nothing.

b) Incidents affecting the electoral process

These are situations that may impact the normal course of events.
electoral process or hinder the proclamation of results. The nomenclature
from these situations has evolved from the Constitution and the electoral code from 2000 to the

37
Constitution of November 8, 2016. From now on, by virtue of the new article 57 of
the Constitution of 2016, as resulting from the constitutional amendment of the 19
March 2020, two situations are envisaged. And at these two levels, the Council
constitutionnel intervient.
The first hypothesis is as follows: under paragraph 1erof article 57 of
the Constitution, "if before the first round, one of the candidates selected by the Council
if the constitutional member is impeded or dies, the Constitutional Council may
pronounce the postponement of the election within seventy-two hours from its
referral by the Independent Commission in charge of elections. As can be seen,
The Constitutional Council assesses and decides. It has discretionary power.
The second hypothesis or the second scenario considered by the
The Constitution in its article 57, paragraph 2, presents itself as follows: "In case of death
or obstacles faced by one of the leading candidates after the first round,
the president of the independent commission in charge of elections seizes
immediately the Constitutional Council, which decides, within the seventy-two
hours from its referral, from the resumption of all operations
electoral." Here, unlike the first case, the Council
The constitutional body is required to make the decision provided for by the Constitution. It must
decide the resumption of the vote. He is then endowed with a related competence.

c) The eligibility check

It is the responsibility of the Constitutional Council, pursuant to Article
127, paragraph 1erof the Constitution, and of article 56 of the electoral code.
Regarding this control, a number of questions arise: first,
What is its purpose? This control, which takes place before the holding of the vote,
report on whether the candidate, whose file has reached the Council
constitutional, meets the conditions prescribed by the Constitution and the code
electoral to validly submit a candidacy.
Then there is the question of the procedure. This one is complex: the
applications, submitted by the Independent Electoral Commission to
Constitutional Council, it publishes them without delay, then it receives "in the
seventy-two hours following the publication of the applications "the claims and
observations of candidates or political parties sponsoring a
application.
What are the powers of the judge in this matter? The Constitutional Council,
deciding on any claims or even outside of any
complaint, may be led to declare the candidate eligible or ineligible, depending on
whether the eligibility conditions have been met or not. The decision
thus rendered, the Constitutional Council finalizes and publishes the definitive list of
candidates for the presidential election. The Constitutional Council acts or must act in
applying the texts, notably the Constitution. This implies that the Council
constitutional should be independent as stated in the Constitution. However, it has happened
that the Constitutional Council loses its independence. This was the case when the
The Constitutional Council invented the concept of 'derived eligibility' to avoid
to assess the outgoing president's eligibility in relation to the conditions set by
the Constitution, or adhered to the thesis of power according to which the advent of a

38
new Constitution resets the counters to zero and makes legal a
third term.

d) The control of the election

Here, too, the Constitutional Council is, under the terms of Article 127,
paragraph 3 of the Constitution and Article 60 of the electoral code, competent for
to know questions related to the regularity and sincerity of the election of
President of the Republic. Here, as in the control of eligibility, the Council
Constitutional plays a role that goes beyond the knowledge of litigation. In
In fact, the Constitution states, of course, that the Constitutional Council rules on the
contestations relatives à l’élection du président de la République. Mais, la
The Constitution also entrusts the Constitutional Council with the responsibility of proclaiming the
final results of the presidential election (article 127 in fine of the
Constitution). To this end, the electoral code stipulates that the electoral commission
indépendante communique au Conseil constitutionnel un exemplaire des procès-
minutes, accompanied by supporting documents, within three days following the
scrutiny (article 59, paragraph 4, of the electoral code). It is thus evident that even in
outside of any litigation, the Constitutional Council cannot proclaim the
final results without having checked the regularity and sincerity of the ballot.
Who can bring a case before the Constitutional Council in the event of a dispute? According to
Article 60 of the electoral code, the Constitutional Council is seized by any candidate
in the presidential election, excluding voters and parties
and political groups. The petitioner must act by written request, addressed to the
president of the Constitutional Council, within five days following the
proclamation of provisional results by the Independent Electoral Commission.
The applicant must attach to their request the documents produced in support of their
means. And the Constitutional Council, after examining the request, rules in the
seven days following the referral.
What are the powers of the Constitutional Council in this matter?
The election dispute may lead to the confirmation of the election when
the alleged irregularities, proven, and that led to cancellations
partial or adjustments, are not likely to alter the results
of the whole (decision no. E/0005/95 of October 27, 1995).
The examination of the litigation may, on the contrary, lead to the annulment of the
scrutiny and at the resumption of the presidential election when "the Council
constitutional notes serious irregularities that may undermine the sincerity
of the voting and to affect the overall result" (article 64 of the electoral code).
Yet, this is not what happened in 2010, following the second round of
the presidential election where the Constitutional Council, in disregard of the code
elected, proclaimed a winner, after having annulled the election for serious irregularities
in the departments of the center and the north (decision no. CI - 2010 - EP - 34/03 -
12/ CC/ SG of December 3, 2010, regarding the proclamation of the final results of
the presidential election of November 28, 2010.
The consequences of such a violation of the law were war, then the
rectification of the results of the presidential election of November 28, 2010 by the
Constitutional Council itself (decision n° CI-2011-EP-036/04/CC/SG of May 4)
2011).

39
 Finally, the question arises whether the Constitutional Council can
proclaim elected a candidate other than the one given by the Electoral Commission
independent as having won the election.
The Constitutional Council is not obliged to confirm.
necessarily the results as proclaimed by the CEC. The Council
constitutional is not the obligation of the CENI; it is not in a relationship of
subordination in relation to the IEC. It is bound by the truth of the ballots. That is the reason.
for which the texts require the IEC to transmit to the Council
Constitutional a copy of the minutes. This is to allow the Council
constitutionnel de réaliser un contrôle authentique, seule base de la proclamation
final results of the presidential election.
It follows from the above that the Constitutional Council, having a
competence related in the matter, must proclaim the results as resulting from
the will of the voters. Thus, the Constitutional Council can modify the
results proclaimed by the CEC. It can therefore declare elected a candidate other than
the one proclaimed by the CIS, although such a decision is fraught with consequences.
The Constitutional Council must even do so if the results of the vote
command.
The candidate declared elected by the Constitutional Council then takes an oath.
in front of him; the oath of office inaugurates the term of the elected president who
thus becomes the new president of the Republic; the oath of office
paves the way for the exercise of his mandate by the new president of the
Republic.

3- The mandate of the President of the Republic

The presidential mandate addresses the following issues: the question of the
limitation, that of incompatibilities, and finally, the issue of responsibility.

a) The principle of limitation

The principle of the limitation of the presidential mandate, enshrined by the
The constitution has two components. The first component is the limitation of the mandate.
presidential term of five years. This principle, relating to the duration of the presidential mandate,
find in most African States' Constitutions of succession
French. The Ivorian constituent could have used four years like in the United States-
United States, or seven years as was the case in France. The choice made by the
Ivorian constituents appear to be the median solution. And this choice benefits.
of a great permanence in the sense that in Côte d'Ivoire, all the Constitutions,
From 1960 to 2016, they retain a duration of five years for the presidential term.
in this period, the political power, which belongs to the people, returns to
people. And this one either confirms the outgoing president or entrusts power.
to a new president of the Republic.
The second aspect of the limitation relates to the number of mandates.
Presidential elections. Can the President of the Republic be re-elected indefinitely?
as was the case under the Constitution of November 3, 1960? The Constitution of
November 8, 2016, following that of the 1heAugust 2000 establishes the principle of the

40
limitation of the number of presidential terms by stating that the president of the
The president of the Republic can only be re-elected once. In other words, the president of the
République élu, et qui, de ce fait, a exercé un premier mandat, ne peut en exercer
another one as well. This means that it is prohibited to practice more than two.
presidential terms.
This provision is found in many Constitutions, notably
African. This is a solution through which Côte d'Ivoire has learned lessons.
of the past. This solution is part of a general movement participating in
new African constitutionalism. It is a principle that aims to ensure
the circulation of power and, consequently, to fight against coups d'état. He
allows to avoid the confiscation of power, that is to say that power, "received at
"passenger title" becomes a "lifetime power," according to the beautiful formula of
Dean Wodié.
Ivory Coast having changed its Constitution, the question arose as to whether
if the passage of the Constitution of 1heAugust 2000 to the Constitution of November 8
2016 reset the counters and made a third term possible for
the profit of President Alassane Ouattara. In other words, the question is whether
Mr. Alassane Ouattara, who had obtained, under the Constitution of the 1sterAugust 2000
two mandates, one of which was fully exercised under the 2000 Constitution, and
the other, started under the Constitution of 1erAugust 2000 and continuing under the
The 2016 Constitution allowed him to run for a third term as he claimed.
same.
The principle of limiting the number of presidential terms to two is not
not a new principle, a newly established principle, that is to say a
principle that would not have been established before the 2016 Constitution. The principle of the
the limitation of the number of presidential terms is a relatively old principle
as it had already been established by the Constitution of January 1er August 2000. The passage
from the Constitution of 2000 to that of 2016 does not therefore make the principle of the
limitation of the number of presidential terms, a new principle that would unfold
its effects only count from 2016.
Dedicated by the Constitution of the 1ster August 2000 and reaffirmed by the Constitution
since November 8, 2016, this principle has not ceased to exist and then,
reappear. It has existed continuously since the entry into force of the
Constitution of 1erAugust 2000. Existing continuously, this principle applies.
continuously since 2000. Thus, the two presidential terms obtained
respectively in 2010 and 2015, that is to say during the period when the principle of
the limitation is in effect, are affected by the principle of limitation. It follows that
the argument drawn from the change of the Constitution could not, in any
method, justify any sort of erasure of the past nor serve as a basis for
the statement that the meters would have been reset. This means that
President Alassane Ouattara could not legitimately run for a third term.
presidential mandate. It is understood, therefore, that he announced that he would not be
candidate for the presidential election scheduled to take place in October 2020, before
to reconsider following the death of Prime Minister Gon Coulibaly, candidate of the RHDP
in the presidential election.
In total, it should be noted that the meters could have been returned to
zero if and only if the new Constitution had abolished or modified the
principle of limiting presidential terms to two. The Constitution does not

41
not having done so or, more precisely, having reaffirmed the said principle, this one
applies since its consecration by the Constitution of 1erAugust 2000. He follows from there
that the meters could not be reset.
This is an opportunity to remind that the change of Constitution or the passage
Transitioning from one Constitution to another does not always entail total erasure or a clean slate.
thing of the past. It all depends on the will of the constituent, because it is not because
that if we change the Constitution, everything changes. To know if everything that precedes
disappears or if certain rules persist, one must refer to the will of
constituent; therefore, it is necessary to read the Constitution; for this, good faith is required and
the necessary lighting.

b) Incompatibilities
So that the President of the Republic can effectively dedicate himself and
effectively to the functions of its charge, the Constitution, in its article 61, establishes
incompatibilities with the presidential function. This means that certain
Functions or activities cannot be performed by the President of the Republic.
cumulatively with his role as President of the Republic.
The aim is not only to avoid burdening the presidential load,
but also to exempt the President of the Republic from constraints
external to its function. Thus, the President of the Republic cannot hold a
parliamentary mandate; he cannot hold any public office, nor engage in any activity
professional.
The regime of incompatibilities entails an obligation for the president of the
Republic to choose, when it finds itself in a case of incompatibility, it is to-
stating that he cannot combine with his role as president of the
Republic...

c) The question of the responsibility of the President of the Republic

It is necessary to distinguish two levels: political responsibility and responsibility.
penal.
Politically, the President of the Republic is irresponsible. This
means that the lower house of parliament, that is to say the National Assembly,
cannot bring into question the political responsibility of the President of the Republic
and consequently force him to resign. Symmetrically, the president of the
The Republic cannot dissolve the National Assembly. This is because
The Ivorian political regime is a presidential regime, thus a regime that postulates
the sharp or rigid separation of powers.
On the other hand, the president of the Republic is criminally responsible. He
is before the High Court of Justice which is an exceptional jurisdiction, to
terms of the Constitution, and which is composed of elected members of the Assembly
national and of the Senate. This jurisdiction is competent to hear about the
responsibility of the President of the Republic in criminal matters. This responsibility
the penal responsibility of the President of the Republic before the High Court of Justice cannot be
engaged only for the actions taken by the President of the Republic in
the exercise of his functions, and only when these acts are constitutive of

42
high treason. This is not defined by the Ivorian Constitution, in the
contrary to that of Benin of December 11, 1990. But it can be said that the
high treason is akin to serious breaches of duty committed by the
President of the Republic.
Likewise, the High Court of Justice is competent to hear about the
responsibility of the Vice President of the Republic and members of the
government for crimes and offenses committed by them in the exercise of their duties
functions (articles 156 to 162 of the Constitution).
It follows from the above that the High Court of Justice is not
materially competent to judge the President of the Republic outside of the
cases of high treason. It is also not competent to judge the vice-
President of the Republic and the members of the government regarding the
crimes and offenses committed by them outside the performance of their duties.

B - The powers of the President of the Republic

They are numerous. They practically cover all subjects. We
can distinguish the powers of the President of the Republic as
representative of the State, the powers granted to the president of the Republic as
as a guarantee of the continuity of the State, and, finally, the powers of the president of the
Republic in the formation of the government.

1- The powers of the president of the Republic as the representative of

the State
These are the functions related to the sovereignty of the State. The president of the
Republic, as a representative of the State, holds two types of
skills: some are exercised in internal order; others are involved
in relations with other subjects of international law such as States and
international organizations.
First, at the internal level, the Constitution assigns to the President of the Republic
the effort to promote national unity. This must consist in the construction and
the consolidation of the national unity still embryonic and precarious.
The President of the Republic is, on the other hand, vested with the power to
to determine and conduct the policy of the nation (article 64 of the Constitution).
It is a power that the President of the Republic exercises at their discretion. He
in this regard, marked its preferences, since the 1960s, for the
capitalism.
Furthermore, the President of the Republic is the head of the Administration. In this
quality, he appoints to civil and military positions, and especially to positions
state officials whose list is established by law.
Finally, the President of the Republic ensures the presidency of the Council of
ministers. In this regard, all acts taken in the Council of Ministers bear his
signature.
On the international level, the President of the Republic is the representative of
the State. In this capacity, he acts in the name and on behalf of the State of Côte d'Ivoire. Thus,

43
Under Article 69 of the Constitution, the President of the Republic has the authority,
on a diplomatic level, of the right to active and passive legation. By virtue of the right of
active legation, ambassadors and extraordinary envoys to the
foreign powers are accredited by the President of the Republic. As for the
passive legation right, it consists in this that ambassadors and envoys
extraordinary foreign powers are accredited to the president of the
Republic.
Finally, in his capacity as a representative of the State, the President of the Republic
negotiates and ratifies treaties and international agreements, acts of law
international, arising from the will of two or more subjects of law
international.

The President of the Republic, guarantor of the State in its identity and its
continuity
A ce titre, la Constitution fait du président de la République, d’une part, le
guarantor of national independence and the integrity of the national territory and,
on the other hand, the guarantor of the continuity of the State.

First of all, the President of the Republic, as the guarantor of integrity of

national territory has the National Armed Forces. To this same end, the
the President of the Republic can sign military assistance agreements and
military cooperation agreements.
Regarding the continuity of the State, the president of the Republic ensures
respect for the Constitution. In this capacity, he can refer to the Constitutional Council. He
can also declare a state of emergency in the Council of Ministers in case of danger
imminent resulting from a foreign war or an armed insurrection
(article 105 of the Constitution). When the state of emergency has been declared in this way, the
civil power, held by political and administrative authorities, passes
provisionally in the hands of the military. Such a situation can be a source
serious violations of rights and freedoms. This is why the
the extension of the state of emergency beyond fifteen days can only be authorized if
by the parliament.
The President of the Republic also has the power, under the law of July 07
November 1959 concerning the state of emergency, to decree, in the Council of Ministers,
the state of emergency over all or part of the national territory, either in case of peril
imminent resulting from serious breaches of public order, either in the event of occurrences
which, by their nature or severity, are likely to hinder the proper functioning
of the economy or public services or national interest. The state of emergency has
to effect, not to transfer power to the military, but rather to increase
the power of administrative authorities. Thus, the state of emergency opens for the
administrative authorities the power to limit the freedoms of individuals, account
you about the situation. This means that it can violate rights and freedoms
of individuals. Thus, what, in normal periods, would constitute irregularities,
becomes regular.
Finally, we will mention the crisis powers that the Constitution grants.
Article 73 recognizes the President of the Republic; we will study them under the
column dedicated to the relationship between the two political powers.

44
 3- The formation of the government
The executive power is entirely vested in the President of the Republic.
the government does not detach itself, as such, from the President of the Republic.
Thus, the government proceeds from the President of the Republic who appoints.
discretionarily the Prime Minister and who, at his proposal, appoints
the other members of the government (article 70 of the Constitution). The members
the government officials thus appointed do not have their own powers, to the extent that
All executive power is in the hands of the President of the Republic. It is the
reason why the Constitution provides for the delegation of powers or delegation
of powers in favor of the Prime Minister and the other members of
government on behalf of the President of the Republic. This one is totally
free regarding the determination of the powers he intends to delegate. And the
powers delegated by him are revocable at any time.
It should be specified that, unlike the delegation of signature in which
the acts taken by the delegate have the same legal nature as those issued by the
elegant, in the delegation of powers or competencies, the acts taken by the
delegates being the Prime Minister and other members of the government
have the nature and legal regime of the acts emanating from their authors.

§2: The parliament

From the parliamentary institution, we will successively examine the status and the
powers.

A- The status of Parliament

The status of the parliament raises a number of questions that we must address.
examiner successively.

1- The composition of the parliament

The composition of parliament has evolved due to the effect of the

Constitution of November 3, 1960, Ivory Coast established a parliament
unicameral, that is to say a parliament comprising one Chamber: the Assembly
national. Then, as a result of the constitutional amendment of July 2, 1998, the
The Ivorian constituent established bicameralism by instituting a Senate in addition to
the National Assembly. However, this bicameralism could not be effective due to the coup
State intervention occurred on December 24, 1999.

With the Constitution of 1heAugust 2000, Côte d'Ivoire reconnects with the
monocameralism: the parliament consists, once again, of a single Chamber,
the National Assembly.
Finally, the Constitution of November 8, 2016, restores bicameralism.
clear, the Constitution of the IIIe The Republic creates two parliamentary chambers: one
National Assembly and a Senate. The Constitution defines the Senate as being the
Chamber representing decentralized territorial communities (regions and
municipalities) and Ivorians living outside of Côte d'Ivoire.

45
 The Constitution, however, remains silent regarding the entity or the
entities represented by the National Assembly. However, for reasons related to its
we must consider that the National Assembly represents the people of
Ivory Coast. Because it is made up of deputies elected for five years by universal suffrage.
universal direct. The voting method chosen is the single-member majority vote or
list according to whether the electoral district has one or more seats. The
the scrutiny is at a round. The electoral code provides that where the number of seats is
greater than two, the candidate list must comprise at least 30%
female candidates. As for the senators, also entrusted with a mandate of
five years, they are elected, by two-thirds, by indirect universal suffrage, the remaining one-third being
appointed by the President of the Republic. The election of senators takes place by ballot
from a single-round majority list, and the electoral college is thus composed:
- elected District advisers;
regional advisors;
- municipal councillors;
candidates for the senatorial election other than those previously elected
cities." (article 109 of the electoral code).
The electoral code also provides that regarding the constituencies
equipped with more than two seats, the candidate lists are only valid if they
contain at least 30% of female applications.

2- The electoral litigation

Parliamentary elections can lead to disputes. We distinguish between,
in this regard, the eligibility dispute, the election dispute and the
disputes regarding disqualification. These three aspects of electoral disputes
fall under the jurisdiction of the Constitutional Council.

a) The dispute over eligibility

As indicated by its name, this litigation, provided for by the Constitution,
concerns the point of knowing if such a candidate for the parliamentary elections
(legislative or senatorial), whose eligibility is contested, meets the conditions
prescribed by the applicable texts to validly act as a candidate.
Logically, this dispute arises before the holding of the election.
Who can bring this matter before the Constitutional Council? One must question
the electoral code; under the terms of article 98 of the electoral code, the eligibility of everyone
Candidate for the legislative elections can be challenged by any voter of the
relevant electoral district. The request must be made within the time frame of
eight days from the date of publication of the provisional list of candidates
by the CIS.
The same applies to the challenge of the eligibility of any candidate for
senatorial elections. In this regard, the order of April 8, 2020 concerning the revision
The electoral code provides, in place of article 28 of the ordinance of the 14th
February 2018 regarding the election of senators, repealed, that "the right to
"Challenging eligibility for the election of senators belongs to every voter."

46
This must act "within three days from the date of publication
of the application by the Commission responsible for elections" (article 140 of the code)
electoral) .
It is important to note that the term voter used by the electoral code in
the proposals for the two types of elections do not have the same content: in the case of the
legislative elections, the term voter refers to any person listed on the
electoral roll of the electoral district. On the other hand, regarding the
senatorial elections, the voters are the local elected officials to which are added the
candidates for the election of senators other than local elected officials (article 109 of the
electoral code).
What decisions can the Constitutional Council, thus seized, make? Two
types of decisions are conceivable, once the threshold of admissibility has been crossed
the request: or the Constitutional Council finds the candidate eligible
(decision no. CI-2011-EL-049/17-11/CC/SG of November 17, 2011), and this candidate
validly participate in the ballot; or the Constitutional Council declares the
ineligible candidate (decision no. CI-2011-EL-052/17-11/CC/SG of November 17
2011), and in this case, the individual in question is excluded from the competition.

b) The election litigation

It is also provided for by the Constitution regarding elections.
legislative elections only concerning the election of senators. This dispute, which tends to
To annul an election for irregularities is under the jurisdiction of the Constitutional Council.

Who can file with the Constitutional Council? When and how? According to the terms
according to articles 101 and 142 of the electoral code, only the candidate or candidates may act.
the constituency in question, 'any party or political group that has presented
an application". The action must take place, regarding the elections
legislative elections, "within five days from the date of proclamation"
solemn announcement of the provisional results by the Commission in charge of the elections.

Regarding the election of senators, the request must be

filed within three days from the date of proclamation
official announcement of the provisional results made by the Commission in charge of
elections
What are, now, the powers of the Constitutional Council? Here, the
The Constitutional Council has full powers, and this is by virtue of Article 39 of the
Organic law of June 5, 2001 concerning the Constitutional Council: the Council may
confirm the election. This is the case in the following scenarios: the first is
the one where the alleged irregularities are not proven (decision no. CI-2012-EL-
09/30-01/CC/SG from January 30, 2012.
The second hypothesis is the one where the irregularities, proven in whole or
parties are not likely to affect the regularity or sincerity of the vote.
Under these conditions, the validity of the election is preserved (decision no. CI-
2012-EL-067/30-01/ CC/SG of January 30, 2012.
The Constitutional Council can, moreover, amend the results of
the election. In this case, the elected or their competitors can see their results
modifiés en plus ou en moins, et le Conseil constitutionnel peut, aux termes de

47
Article 39 of the organic law, confirms the election or 'proclaims the candidate who
was regularly elected" (decision No. CI-2012-EL-061/30-01/CC/SG of January 30
2012).
Finally, the Constitutional Council can annul the election. This is the case when it
It is established that serious irregularities affected the vote (decision no. CI-2012-EL-
063/30-01/CC/SG of January 30, 2012.
The vacancy caused by the cancellation calls, according to the terms of Article 103
and 144 of the electoral code, the organization of partial elections "within six months
who follow the vacancy in the concerned electoral district." And the code
electoral to add: "This deadline may be extended by decree in the Council of
ministers, upon the proposal of the Commission in charge of elections, for a duration
not exceeding six months.

c) The litigation of forfeiture

The dispute over the forfeiture aims to obtain from the Constitutional Council the
pronouncement of the disqualification of the elected official: deputy or senator. Not provided for by the
er
Constitution of 1 August 2000, it was only enshrined by the electoral code for the
seuls députés, dans la mesure où le Sénat, produit de la Constitution du 08
November 2016 did not yet exist. Established, the Constitution of November 8
2016 dedicates, in its article 127, the litigation concerning the deprivation both regarding
of deputies than senators. But, the 2018 ordinance relating to the election
senators had ignored him by only organizing the eligibility dispute and the
electoral litigation. The situation, as it stands, has been corrected by the order
of April 8, 2020 revising the electoral code: said ordinance takes effect
to the Constitution by organizing the litigation of deprivation in addition to the two
others.
What reasons can the disqualification of the elected official be requested? Before
the 2020 ordinance, the electoral code stated that deprivation could be
requested regarding the elected official whose ineligibility is established during the term.
The question then arose as to whether the deprivation could occur as well.
for cases of ineligibility arising after the election only for cases
prior to the election, but having escaped any challenge or scrutiny. The
The Constitutional Council has not had the opportunity to rule on the disputes it is facing.
was seized as having unusually intervened earlier in the field of litigation of
the election (see, for example, decision of January 19, 2012: Karamoko Yayoro v/
Gourène Germain.
Since the advent of the ordinance of April 8, 2020 concerning the revision of the code
electoral, things are clearer: the deprivation cannot be requested and
obtained only for cases of ineligibility that occurred after the election (articles 102 and
143 of the electoral code), excluding cases prior to the election.
Who can invoke the Constitutional Council? Unlike the situation
previous instance in which the application was only open to candidates from the
constituency, under the authority of the ordinance of November 8, 2020, every voter
can refer to the Constitutional Council.
When should the referral to the Constitutional Council take place? The one
Points reflecting the specificity of the litigation of disqualification relate to

48
moment of his intervention: this dispute, unlike the others, is not
locked into a deadline. He can intervene at any time during the duration of the
legislature.

3-The organization of the parliament

The Chambers, which make up the parliament, are institutions having a

internal organization based, essentially, on the regulation of which each
The chamber is provided. On this basis, the parliamentary assemblies include
parliamentary groups that are formed based on political affinities. The
Parliamentary assemblies also include Committees that are
tasked with studying, each according to their area of expertise, the submitted texts
to the different Chambers before their examination in plenary session for adoption. The
the work of these Commissions is therefore to clear the ground. It is therefore a
preparatory work.

4- Immunities and incompatibilities

So that the parliamentarian can act or work freely and
independence, the Constitution has provided a system of immunities and
of incompatibilities.
Incompatibilities, which should not be confused with ineligibility,
regarding certain functions that may affect freedom and independence
of the parliamentarian. They are provided for by the Constitution and supplemented by the code.
electoral. Thus, for example, the parliamentarian cannot exercise at the same
while exercising his duties as a parliament member, the duties of president of the
Republic or government member. These incompatibilities result in
legal consequences. Thus, the parliamentarian finds themselves in a case
of incompatibility is required to choose. He must, indeed, put an end to
the incompatibility. If he abstains or refuses, then the parliamentarian exposes himself to the
resignation by office. However, when it comes to the incompatibility between
parliamentary mandate and ministerial function, the issue is resolved through
the substitute: the substitute replaces the parliament member called to duties
ministerial during the presence of the parliament member in the government. Ceasing
as a member of the government, the parliamentarian returns to their seat at
parliament.
Regarding the immunities provided for in articles 91 and 92 of the
Constitution, they aim to protect the parliamentarian so that he is not
distracted from his duties. In this regard, the provided immunities are of two types.
They are irresponsibility and inviolability.
Under the title of irresponsibility, the Constitution stipulates that no parliamentarian
cannot be pursued, sought, arrested, detained, or judged on account of opinions
or votes cast by him in the exercise of his duties. Under the
parliamentary irresponsibility is totally covered: no criminal action
or civil, cannot be brought against him due to his expressed opinions or the
acts performed by him in the exercise of his duties.

49
 S’agissant de l’inviolabilité, il est à noter qu’elle tend à protéger le
parliamentary in his capacity as a representative of the nation, even outside of this
which pertains to the exercise of his functions as a parliamentarian, as he needs
of serenity. It should not be subjected to untimely lawsuits or
untimely distractions that could divert him from his task.
This protection covers the parliamentarian during sessions as well.
outside of sessions. But here, the parliamentarian is not covered in a way
absolute. The immunity he enjoys in terms of inviolability can be lifted.
When the chamber to which the parliamentarian belongs is in session, it is
this Chamber which is competent to lift immunity, upon request of the prosecutor
of the Republic. When the said Chamber is not in session, it is rather the
office of the latter which is authorized to lift the immunity.
On the other hand, it is not necessary to proceed with the lifting of
parliamentary immunity in certain cases. This is the case when the parliamentarian
was caught in the act. The prosecution of the parliamentarian, in this case, is
possible without the need for his immunity to be lifted.
Furthermore, the inviolability only applies when it comes to crimes or offenses.
prosecution of the parliamentarian is then possible when the committed offense is
rather a fine.
Finally, immunities only apply in criminal matters. Prosecutions remain
possible in civil matters. And even in criminal matters, immunity is not necessary.
to be lifted when it comes to authorized prosecutions...

B- The attributions of parliament

Under the terms of article 93 of the Constitution, the parliament votes on the law and
consent the tax. Moreover, the parliament controls the government's actions and
evaluate public policies.
It follows from the above that the parliament holds, solely, the legislative power.
that is to say the power to make laws. Thus, it is exceptionally that the
the President of the Republic intervenes in legislative matters. However, in
Despite the presidential nature of the political regime, there are points of contact.
between the two political powers, and it is within this framework that the implementation becomes apparent
works of the attributions granted to the parliament by the Constitution.

SECTION 2: The relations between the two political powers

These reports are, overall, of two types: there are the reports
susceptible of leading to the production of legal rules or norms, and
there are the other reports.

§1erReports concerning the production of legal standards

This is found under several headings.

50
 A- The problems related to the sharing of skills
In the manner of the French Constitution of October 4, 1958, the Constitution
Ivorian has planned two areas of regulation, namely production.
rules of law: on one side, there are the matters that the Constitution entrusts to the
law (article 101 of the Constitution). And there are other matters that, according to
the Constitution, fall under regulatory power, which is a power entrusted to
to the president of the Republic, in his capacity as the exclusive holder of power
executive (article 103 of the Constitution). Thus, according to the Constitution, the
parliament enjoys a competence of attribution, and regulatory power
of a common law competence.
The distribution of subjects, as established, can be respected as it is.
may be violated by the legislator encroaching on the regulatory domain. The
violation can occur through proposed laws and amendments that
could do the members of parliament. In this hypothesis, the technique of
the inadmissibility must apply: the president of the National Assembly or that of the Senate
must pronounce the inadmissibility. In case of dispute, the Constitutional Council
may be entered either by the President of the Republic or by a 1/10e at least
of parliamentarians. The Constitutional Council, thus seized, decides the question in
making a decision in which it states that the matter falls within the domain of
law or, on the contrary, in the regulatory domain.
To the technique of inadmissibility that here is added another process which is
the technique of deregulation. The hypothesis is that laws would be
intervened prior to the entry into force of the Constitution in the
domain that now belongs to the President of the Republic. In this case, the
President of the Republic, who wants to reclaim the entirety of his domain, seizes
the Constitutional Council which issues, not a decision, but an opinion, on the
foundation on which the President of the Republic can act...

B- The legislative procedure

It is defined as the movement that starts from the initiative of the law to
the adoption of the law. It is governed by articles 74, 109 and 110 of the
Constitution. It begins with the initiative: under the terms of Article 74 of the
Constitution, the initiative is subject to a competition of competencies. It
is the responsibility of both the President of the Republic and the members of parliament.
Article 74, paragraph 1er, of the Constitution, states in this regard: "The president of
the Republic has the initiative of laws concurrently with the members of
parliament
It should be noted that when the initiative of the law comes from the president of the
Republic, it gives rise to a bill. On the other hand, when the initiative is
the action of a member or members of parliament is rather referred to as a proposal
de loi.
The initiative taken, what is the next step in the procedure? Articles 109
new and 110 of the Constitution respond to this question by describing the
continuation of the procedure: first, pursuant to article 109, paragraph 1er, from the
Constitution, "bills and proposals are submitted to the office of one
of the two Chambers." This means that the text can be submitted to the desk.

51
of the National Assembly or the Senate. Such is the principle, such is the rule.
which is derogated by the effect of article 110, paragraphs 2 and 3, which provides:
The finance bill is first submitted to the National Assembly.
Projects or proposals for laws related to territorial communities are
submitted first to the Senate.
The text, thus submitted, is transmitted by the care of the Conference of
presidents to the competent Commission under the object of the text. When the
The commission has examined the text, the plenary assembly is seized for its
adoption. The text can be adopted or rejected. The text, adopted by one of the
Chambers of Parliament, is transmitted to the other Chamber for the purpose of adoption of a
unique text. However, it is possible that there may be disagreement between the two Chambers and
that the text is not adopted in identical terms. In this case, when the
project or the bill could not be adopted after two readings by
each Chamber, or, in case of emergency decreed by the President of the Republic
after a single reading by each Chamber, 'the President of the Republic can
to convene a Joint Mixed Commission tasked with proposing a
text on the provisions remaining under discussion.
The text, thus drafted by the joint commission, may be submitted
by the President of the Republic to the two Chambers for approval. The
The constitution specifies that in such cases, no amendment is admissible or from the
neither from the members of the House of Representatives nor from the senators, except by agreement of the president of the

Republic.
In the event that the joint committee fails to adopt
a common text, as well as in the case where both Houses do not
cannot agree on a common text, so the solution to the impasse is that
the final word belongs to the National Assembly: in accordance with the Constitution, the
the President of the Republic asks the National Assembly to rule
definitely on the text. According to the Constitution, "the National Assembly
can either take up the text drafted by the joint parity commission, or the
last text voted by her, modified, if necessary, by one or more of the
amendements adoptés par le Sénat ».

C-The execution of laws

It starts with the enactment of the law. According to Article
74, paragraph 2, of the Constitution, the President of the Republic 'ensures the
promulgation of laws within thirty days following their transmission
made of the law definitively adopted. This period is reduced to five days in case
emergency". The present indicative used indicates that it weighs
the President of the Republic has a strict obligation to promulgate the adopted law
by the legislative body. For the indicative is equivalent to the imperative. This means that the president of
the Republic is obliged to promulgate the law. But, it is possible that the president
the Republic does not execute. In this case, article 74, paragraph 3, of
The Constitution grants to the Constitutional Council, seized by the president of one of the
two Houses of Parliament, the power to declare the law enforceable, provided that
that the Constitutional Council has reviewed the said law and declared it in accordance with the
Constitution. It is clear that this can only happen if the promulgation, which

52
falls to the President of the Republic, did not occur within the deadlines set by the
Constitution.
It is worth noting that in this time frame scheduled for the enactment of the law,
the President of the Republic can request and obtain from the parliament a second
deliberation of the law, and in this case, the vote on the law 'is secured by majority'
absolute members according to the parliament, convened in Congress (Article 74.6)
new from the Constitution).
It follows from the above that the president of the Republic can only
defer the promulgation of the law, by means of the request for the second reading.
He cannot avoid it.
Once the issue of the promulgation of the law is settled and ensured
publication of this in the official journal, the President of the Republic must, in
pursuant to Article 65 of the Constitution, take appropriate measures to
ensure the full execution of the law. In this regard, 'he takes the regulations
applicable to the entire territory of the Republic." These regulations are
called derivative regulations because they are made in application of the laws. They derive
laws. They oppose another type of regulations called regulations
Autonomous. These are the regulations that intervene in the specific domain of
President of the Republic. These regulations do not aim to ensure
the execution of laws, unlike derived regulations. The regulations
autonomous depend directly on the Constitution, while the regulations
dependent derivatives, for their part, are based on the law from which they derive their existence and
their validity.

D- The prescriptions
They are provided for by Article 106 of the Constitution. Here, the president of the
The Republic intervenes in the field of law to take actions called
orders. This occurs at the request of the President of the Republic and on
empowerment of the parliament. The president requests it for the execution of his
program. The license or authorization, granted by parliament, is for
for a certain time, and the orders are taken in the Council of Ministers.
Although they operate in the field of law, the ordinances are not
not laws. They do not have the value of law. They are, rather, administrative acts.
Upon the expiration of the deadline given to the President of the Republic to take the
decrees, the President of the Republic can no longer issue decrees.
Those he took must be deposited on the desk of the parliament to be
eventually ratified. Once ratified, the ordinances cease to be acts
administrative measures to become laws, as they now benefit from the anointing
of the parliament.

The practice followed reveals abuses related to the use that the
The president makes use of this process: a very large number of orders are issued, each
year, in various legislative matters (both in matters of the law
ordinary than in those of the organic law), by the president of the Republic,
abnormally, on the basis of the finance law, which cannot, at best,
authorize only measures in the financial field. It follows that the president

53
of the Republic is improperly replacing the parliament, intervening without
authorization, in the field of this one, thereby violating the principle of separation.

The crisis powers of the President of the Republic

These powers result from Article 73 of the Constitution. By virtue of this
The President of the Republic may be required to exercise a dictatorship.
Ruler in the sense that, like in ancient Rome, he holds all powers.
But the implementation by the President of the Republic of his crisis powers
is subject to conditions.

1- The application conditions of article 73

The conditions prescribed by the Constitution for Article 73 to be
implemented are of two kinds: on one hand, there are the substantive conditions and,
on the other hand, the formal conditions.

a) The substantive conditions

There are two of them, and they are cumulative. First of all, one must
the occurrence of a serious and immediate threat weighing on the institutions of the
Republic, the independence of the nation, the integrity of the national territory or
the execution of international commitments. This threat must be serious and
immediate. This is the first condition which, although necessary, is
insufficient.
Then, the threat in question must have the effect of interrupting the
regular functioning of constitutional public authorities. This means that it
the circumstances in question must have resulted in paralysis
constitutional public authorities.
In addition to these substantive conditions, there are also formal ones.

b) The formal conditions

There are also two of them, and they have a cumulative nature.
The first condition pertains to mandatory consultations. The
The President of the Republic is, indeed, required to consult certain
personalities: the president of the National Assembly, the president of the Senate and the
president of the Constitutional Council. But, the opinions given by these personalities
are not mandatory. They do not oblige the President of the Republic.
He can take it into account or not.
The Constitution provides for a second condition of form. It is expressed by
the obligation of the President of the Republic to send a message to the
nation to inform him of its decision to invoke Article 73 of the Constitution
to face the crisis situation.
Once these formal and substantive conditions are met, the way is opened to
the use by the President of the Republic of Article 73 of the Constitution.

54
 2-The effects of the implementation of Article 73 of the Constitution
The use of article 73 of the Constitution causes the effects that
here.

The President of the Republic takes the measures required by the

circumstances
Due to the circumstances, the Constitution allows the president of the
Republic to accumulate all political powers in its hands. It is
the erasure of boundaries between powers. Thus, in addition to its domain
clean which is the regulatory domain, the President of the Republic takes ...
measures in the field of law. The measures he takes in the field
regulatory acts are administrative acts. In contrast, those he takes in the
the domain of the law has the value of law.

It should be noted that the measures taken under article 73 of the

Constitutions must aim to address the crisis situation. The powers of
the President of the Republic being thus finalized, the measures enacted must have
to put an end to the crisis and thus restore the normal situation.

b) The parliament convenes by right

The Constitution provides for the automatic meeting of Parliament, taking into account
about the gravity of the situation. The parliament meets, not to legislate, but
to follow the use that the President of the Republic makes of Article 73 of the
Constitution. Parliament can therefore assess whether there is abuse.
not from the president of the Republic. The parliament cannot, in this context,
engage the political responsibility of the President of the Republic. The nature
the political regime opposes it. But nothing opposes the implementation of the
criminal responsibility of the president of the Republic for high treason if the
the conditions are met.

c) The end of the crisis

According to the Constitution, once the crisis is controlled, the president of the
The Republic must send a message to the nation to mark the end of the crisis; and
the crisis having ceased to exist, the President of the Republic will no longer be able to take
measures under Article 73 of the Constitution.

§2: The other reports

These are the points of contact between the President of the Republic and the
parliament, which do not immediately lead to the production of acts
legal. This is the case for communications that the President of the Republic can
addressing the parliament through messages read by the vice president of the
Republic or a member of the government. These messages are not followed by any
debate (articles 114 and 115 of the Constitution).

55
 This is also the case for the calling of parliament for an extraordinary session.
by the president of each Chamber acting at the request of the president of the
Republic.
Il en va également ainsi de l’accès aux Commissions, ouvert aux membres du
government.
Finally, it is worth mentioning the control that parliament exercises over the
executive power through oral questions and written questions, to which it
It is convenient to add the Inquiry Commission and the evaluation mission.
The control that parliament exerts over the executive power cannot give
instead of recommendations and in no way to the liability being engaged
governmental, for reasons related to the presidential nature of the regime
politics (article 117 of the Constitution).

56
 COURSE PLAN

INTRODUCTION ......................................................................................... 1
I-From the status of colony to the status of Member State of the Community................... 1
II- From the Communborn to independencee ..................................................... 2
CHAPTER 1ERTHE LEGAL FOUNDATIONS OFTHE STATEIVORYN ................................. 5
SECTION 1: The constitutional evolution of Côte d'Ivoire............................. 5
§1: The Constitution of November 3, 1960 ................................. 5
A-The drafting procedure5
B-Adoption................................................................................. 6
C-The assessment of the constitutional procedure....................................... 6
Section 2: The Constitutional Act of the 27th ofDecember 1999 .......................................... 7
§3: The Constitution of 1erAugust 2000 ......................................................... 8
A-The drafting of the Constitution of January 1sterAugust 2000 ................................. 8
1-L’organe chargé de rédiger le texte : la Sous-commission Constitution.... 8
2- Writing the text................................................................. 9
3-The reception of the text by the transitional authorities........................... 10
B-The adoption of the Constitution of the 1sterAugust 2000................................... 11
C- The rejection of the Constitution by a part of the social body...................... 11
SECTION 2: The establishment of the Constitution of November 8, 2016.................. 12
§1heThe origins of the Constitution of November 8, 2016.............................. 12
An idea from the President of the Republice 12
B- The questions or inquiries raised by the project................ 13
1- Les objectifs poursuivis .............................................................. 14
2- The moment............................................................................. 14
§2: The drafting of the new Constitutionn ............................................. 15
§3: The adoption of the text of the new Constitution..................................... 16
§4: Assessment of the procedure followed.................................................... 16
A- The undemocratic nature of the constitutional process................. 17
B- The repercussions on the quality of the text........................................... 18
SECTION 3: The authority of the Constitution.................................................... 19
Section 1herThe Constitution, fundamental and supreme law...................................... 19
§2: The sanction of the supremacy of the Constitution: the control of
constitutionality
A-The char organguardian of the constitution: the Constitutional Council....................... 19
B- The issue of acts subject to the control of the Constitutional Council........ 21
1- Acts excluded from control........................................................ 21
2- The acts subject to constitutional control............................ 22
C- The modalities of control............................................................. 23
1- The mandatory control, a control through action........................ 23
a) The constitutional laws adopted through parliamentary means........... 23
b) International treaties or agreementsx .......................................... 24
c) The organic laws26
d) The regulations of the parliamentary assemblies and their modifications. 26
2) Optional control................................................................. 27
a) Control by means of action.................................................... 27
b) Control by way of exception28
SECTION 4 : La révision de la Constitution ................................................... 30
§1erThe theoretical questions ............................................................... 30
§2: The legal technique of the revision of the Ivorian Constitutione ............... 31
A-The initiative................................................................................ 31
B-The consideration of the initiative32
C- The decision................................................................................ 32

57
CHAPTER 2: THE POLITICAL REGIME OF THE COASTIVORYA DESIRED REGIME
PRESIDENTIAL
SECTION 1eraThe two political powers .................................................. 35
§1erThe President of the Republic......................................................... 35
The status of the President of the Republice ............................................ 35
1- The designation of the President of the Republic35
a) The required conditionss 35
b) The election by direct universal suffrage......................................... 36
2-Electoral litigation or the control of the presidential electione ....... 37
a) The control of sponsorships...................................................... 37
b) The incidents affecting the electoral processl ................................ 37
c) The eligibility check........................................................ 38
d) The control of the electionn 39
3- The mandate of the President of the Republic40
a) The principle of limitationn ....................................................... 40
b) The incompatibilitiess 42
c) The question of the responsibility of the President of the Republic.......... 42
B- The powers of the President of the Republic....................................... 43
1- The powers of the President of the Republic as
what representative of the State43
2-The President of the Republic, guarantor of the State
in its identity and continuity..................................................... 44
3- The formation of the government.................................................... 45
§2: The parliament .............................................................................. 45
The status of the parliamentt ................................................................. 45
1- The composition of the parliament....................................................... 45
2- Electoral litigation46
a) The litigation of eligibilitytea.................................................... 46
b) The election litigation..................................................... 47
c) The litigation of the forfeituree ................................................. 48
3-The organization of the parliament49
4- Immunities and incompatibilitys ................................................. 49
B- The attributions of parliament........................................................ 50
SECTION 2: The relationship between the two political powerss .............................. 50
§1erReports concerning the production of legal standards..................... 50
A- The problems related to the sharing of skillss.................................. 51
B- The legislative procedure................................................................ 51
C-The execution of the laws..................................................................... 52
D- The prescriptions......................................................................... 53
E- The crisis powers of the President of the Republic............................. 54
1-The conditions for the application of Article 73..................................... 54
a) The conditions of foundationd54
b) The formal conditions54
2-The effects of the implementation of Article 73 of the Constitution........... 55
a) The President of the Republic takes the
measures required by the circumstances............................................ 55
b) The parliament meets by right.......................................... 55
c) The end of the crisis.................................................................... 55
§2: The other reports ....................................................................... 55

58