43. The Court further recalls that exhaustion of local remedies is assessed as
at the time the Application is filed before it and compliance with this
requirement entails that Applicants must await the outcome of pending
domestic proceedings before seizing the Court.8 The only exception to this
rule is where proceedings in respect of the applicable remedy are unduly
prolonged.
44. The Court notes that, under Articles 1529 and 175(2) of the Respondent
State’s Constitution (hereinafter referred to as “the Constitution”), in force at
the time the present Application was filed, individuals are entitled to
undertake constitutional review of laws prior to their enactment.
45. The Court observes that in dismissing the Applicants’ constitutional petition
in respect of Law No. 034-2020/AN of 25 August 2020, the Respondent
State’s Constitutional Council held that:
a citizen may only seize the Constitutional Council to challenge the
constitutionality of a law that has already been promulgated through a review
procedure brought before a court in a case concerning him, either directly by
himself or by the diligence of that court; the Applicants brought an action
before the Constitutional Council against a law that had already been
enacted, in the absence of any proceedings pending before a court.
46. It follows from the foregoing that the Applicants should have seized the
ordinary courts and not the Constitutional Council to take action against a
law which has already been enacted.
8
Kenedy Ivan v. United Republic of Tanzania (merits and reparations) (28 March 2019) 3 AfCLR 48, §
51; Moussa Kante and Others v. Republic of Mali, ACtHPR, Application No. 006/2019, Judgment of 25
June 2021 (admissibility), §§ 36-40.
9 Article 152 provides as follows: "The Constitutional Council is the institution having jurisdiction over
constitutional and electoral matters. It is responsible for ruling on the constitutionality of laws, ordinances
and the compliance of international treaties and agreements with the Constitution. It interprets the
provisions of the Constitution. It controls the legality, transparency and sincerity of referendums,
presidential and legislative elections, and rules on electoral disputes. It proclaims the final results of
presidential, legislative and local elections.
The control of the legality and transparency of local elections falls within the jurisdiction of the
administrative courts. The Council of State is responsible for declaring the final results of these elections.
11