EXACTLY WHAT DOES ARTICLE 64 OF THE ELECTORAL CODE IVORY COAST?

Paul Yao N'dre: President of the Constitutional CouncilPlunged into a political-military crisis, turned into rebellion, since September 2002, Côte d'Ivoire, the flagship West Africa, grew out of all his problems permanently after a presidential election held in October and November 2010, at a cost of hundreds of billions, for the country which is fighting to be admitted to the HIPC initiative.
Unfortunately, the fact that we can make today is that after the second round of the presidential election, November 28, 2010, Côte d'Ivoire Côte d'Ivoire is again facing a serious crisis bears this time the seeds of civil war, both positions are decided by both sides.
In this political imbroglio, all national and international attention is focused on the Ivorian electoral code.
Indeed, the Election Code in August 2000, a single provision taken alone all the media coverage caused by post-election crisis. She thus crystallized the challenge to the Constitutional Council's decision of 03 December 2010, giving the winner of the presidential election, the candidate of the Presidential Majority (LMP), Laurent Gbagbo.
The destroyers of the Constitutional Council accusing the institution not to have said the law provides that the election judge in the matter only option, cancel the whole election if it finds serious irregularities that marred the polling.For their part, defenders of the Constitution are braced on the absolute authority of res judicata to infer that the Act was well known and must be respected.
In such circumstances, common sense dictates that force remains to temperance and reason coolly to reread the famous Article 64 of our Electoral Code to locate things clearly.It is this exercise that we venture here, relying on input from eminent jurists of our universities.
EXACTLY WHAT DOES ARTICLE 64 OF THE ELECTORAL CODE IVORY COAST?
In Article 64 of the new electoral code, the Ivorian Act clearly states: "If the Constitutional Council finds irregularities such as to invalidate the elections and to affect the result of` all, `he pronounces the annulment `s election and notify its decision to the Independent Electoral Commission which shall inform the Special Representative of the Secretary General of the United Nations and the Special Representative of the Facilitator for all purposes.The date of the new poll is fixed by decree of the Council of Ministers proposed by the Independent Electoral Commission.
The polling place not later than forty five days from the date of the decision of the Constitutional Council. "
At this level, we would emphasize that this provision already resulting simply a single planning Ivorian electoral code of April 2008 to take into account the recommendations of the Ouagadougou Political Agreement, reached March 7, 2007.
It is through this adjustment as the original text to include the words "Independent Electoral Commission," Representative of the Secretary General of the United Nations "and" Special Representative of the Facilitator. "
Go back in time to see that already the Electoral Code of the Ivorian December 13, 1994 in Article 66 has inspired the legislature in August 2000, saying at the time: "If the Constitutional Council finds irregularities such as to vitiate and fair elections and to affect the result of `all, he pronounces` s `s election annulment. The date of the new poll is fixed by decree of the Council of Ministers. The polling place not later than forty five days from the date of the decision of the Constitutional Council. "
But as no Ivorian laws did not contain such a provision before about the presidential election, the legislature of 1994 is based on article 50, paragraph 2 of Ordinance No. 58-1067 of 7 November 1958 on the organic law the French Constitutional Council to which Article 3, paragraph 2 of Law 62-1292 of 6 November 1962 concerning the presidential elections and which read: "If the Constitutional Council finds the` existence of serious irregularities in workflow, it belongs to `assess whether, given the nature and seriousness of these irregularities, it is necessary to maintain these operations, or to deliver their complete or partial cancellation.Many similarities raise questions about the extent of powers that this provision gives the Constitutional Council, Supreme Judge and Ruler of electoral matters.
THE POWERS THAT ARTICLE 64 MAKES THE ELECTION JUDGE.
A simple literal reading of this article gives us to understand that the Constitutional Council has the power to cancel the election he enjoy discretion to determine the effects.
Indeed, the power to impose full cancellation of presidential elections that Article 64 of our Electoral Code gives the Constitutional Council is extremely important if we stick to all that this implies in the renewal notice the entire electorate.
But later, this arrangement allows us to glimpse something other than the simple reading of first litter.The total cancellation of the poll and the renewal of the convening of the electorate are subjected to conditions that the legislature was careful to notify and necessary to the finding of the election judge. They are:
-The finding of "serious irregularities such as to vitiate the fairness of the poll;-The finding of "serious irregularities in nature" to affect the result of `all '.
Thus, the power to nullify the election total by the election judge can not be activated when these two conditions are met.
It follows that the election should be canceled when these two conditions were fulfilled.
Better, if we push further curiosity in reading that article 64 of our Election Code, we easily realize a subtle, certainly unconscious of the legislature that is worth its weight in post-election e debate.
Indeed, the conjunction "and" placed between the two conditions should be cited.
By the same token, the two conditions become cumulative as they become indisputably linked to impose the delivery of the complete cancellation of the presidential election. This means that the Constitutional Council is necessarily required to pronounce the cancellation if and only if both conditions are met simultaneously.
Our goal here is to understand much about what this actually contains Article 64, thus pushing our reading and still give us realize that other thing.Indeed, the total cancellation of the presidential election, if one refers to this Article 64 is problematic, particularly the two conditions for this cancellation. In the sense that even the legislature is not clear what he means by "serious irregularities such as to vitiate the fairness of the poll" on the one hand and "to affect the result of` all 'other.
The election code gives no indication.So the important thing is that the strict application of this provision of Article 64 of our Election Code, is left to the sole discretion of the election judge.
Otherwise, the achievement of these two conditions cumulative result of the determination that has been conducted by the authority under this text, the Constitutional Council.
From that moment, this provision confers a discretion on the Constitutional Council.The Constitutional Council is only empowered under that provision of the Election Code, to determine the nature, severity and impact of the irregularities to the consequences.
As a reminder, it is good to know that in 1990, even though no provision of the Act indicated, the Constitutional Chamber of the Supreme Court Ivorian exercising the authority of the constitutional court for the 1990 presidential election had conducted some cancellations because of the devastation results of 274 ballot boxes.
At this time, the judge held that these irregularities did not have a decisive influence on the overall result because, he believed, the 274 ballot boxes were only 3% of all polling stations. He could not pronounce the annulment of any election and any ensuing justification according to experts, is that matter, the constitutional court has the so-called " power of reformation, "which is at the discretion or the determination of the severity and nature of the deficiencies and their impact on the entire ballot.
So if you want to return to the case of Ivory Coast in November 2010, it is possible to believe that in this case, the electoral court has certainly made the finding of the fulfillment of one of two conditions to result in the imposition of the total cancellation of the presidential election.
Certainly, the finding of "serious irregularities such as to vitiate the fairness of the poll, but not likely to affect the overall result by judicial interpretation.
In this regard, it is indeed serious irregularities had tainted the integrity of the election polling stations where they were observed.
The power of reform is in this case to the Constitutional Council to cancel the effects of such irregularities without jeopardizing the entire election.It should be noted here that beyond the number of spoiled ballots, what is at stake is rather the effect that hides the sanctimonious judge's decision in this election because of swelling the electorate in favor of a candidate.
These suppress the irregularities caused but whose importance could not affect the overall result is not the score of the candidates but the election itself, since it went uphis term. In this case, the judge's powers are so important that it can even recognize a winner other than that which took advantage of the irregularities. When only one of two conditions was conducted, the constitutional court has only one option: to cancel part of the election and declare a winner.
The Ivorian Constitutional Council decision of 03 December 2010, giving the winner of the presidential election, the candidate Laurent Gbagbo, therefore does not suffer any challenge and can not be treated as a sprain to the laws and regulations.Quite the contrary!