Burkina Faso Legal Information and Research
Kounkinè Augustin Somé LLB (Ouagadougou), DEA (Nantes, Paris XII) LLM (Pretoria-American University, Cairo), is a graduate in International Human Rights Law with Specialization in Human Rights and Democratization in Africa and Humanitarian Assistance. He has comprehensive experience in the area of human rights, democratic governance and peacebuilding. Mr. Somé has written several articles and papers including on the APRM (Governance assessment, a tool for human rights promotion: A critical look at the African Peer Review Mechanism); on the Human Rights situation in Burkina Faso in the Human Rights Law in Africa Series (Volume 2, 2000 – 2004). Mr. Somé has worked with the Parliament of Burkina Faso as legal officer and is currently serving on Human Rights with the United Nations Integrated Office in Sierra Leone (UNIOSIL). He can be contacted by email.
Published November 2007
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Table of Contents
Burkina Faso, formerly known has Haute-Volta (Upper Volta) is a landlocked West African country. It shares borders with Mali (North), Niger (East), Benin (South-East), Togo and Ghana (South) and Cote d’Ivoire (South-West). Burkina Faso means “The Land of Upright Men” and its people are called Burkinabé.
The total Area is 274,200 sq km and the population is 14,326,203 as of the most recent census. The Capital City is Ouagadougou. The currency is the Franc CFA (XOF). Burkina Faso is a member of the Economic Community of West African States (ECOWAS) and the West African Economic and Monetary Union (WAEMU), in which it hosts the Commission.
The official language is French.
In its legal and political evolution, Burkina Faso has known four constitutional regimes respectively in 1960, 1970, 1977 and 1991. A remarkable fact is that a constitution has never succeeded directly to another; rather the different constitutional regimes have always been stopped by a military one. But before independence, “Upper Volta” had a constitution dominated by colonial rapports.
Burkina Faso, a former French colony gained independence in 1960 (August 5). Six years later, (1966) the government led by Maurice Yaméogo, pushed to the corner by the labor movement, was deposed by the army. A new constitution was adopted in 1970 and was later suspended in 1974 by the army again. The third constitution was adopted in 1977 and was again suspended by a military coup in 1980. Another coup d’etat in 1983 installed the National Revolution Council (CNR) led by Thomas Sankara. On October 15, 1987, Thomas Sankara was killed in another coup d’etat and Blaise Compaoré replaced the CNR with the Popular Front (FP). In 1991, a new Constitution was adopted through a referendum and Blaise Compaoré was elected president. He has since been re-elected in 1998 and 2005.
Burkina Faso is a democratic, unitary and secular state (article 31 of the Constitution). The 1991 Constitution, adopted by referendum established a semi-presidential regime. It allows an integral multiparty system and consecrates separation of powers. The head of state (President du Faso) is elected for 5 years and can be re-elected once. A unicameral Parliament composed of 111 MPs, is elected every 5 years and a Constitutional Council is there to ensure that other legal instruments/decisions conform with the constitution. The relationship between the Executive and the Legislature is characterized by the fact that the National Assembly can engage the Government’s responsibility by passing a vote of no confidence; in return, the Government can dissolve the Parliament (Art. 114).
For the past 15 years, political pluralism has been a reality in Burkina Faso and several political parties have competed during electoral consultations organized on a regular basis. New democratic institutions have enriched the country’s institutional set-up and have contributed to strengthening democracy. The protection of human rights is guaranteed in the constitution, though they still need actual implementation. Finally, the new dynamism of civil society groups and the freedom of expression are testimonies of significant progress in the area of democracy.
The main arms of government are:
· The Executive
· The Legislature
· The Judiciary
The Executive has two heads: the Président du Faso (PF) and the Prime Minister.
The PF is elected for 5 years and is re-eligible once (art 37). Candidates to be elected President du Faso must be burkinbé by birth, at least 35 years old (art 38), and their parents must be burkinabé. The PF is elected by the absolute majority at the first round; otherwise a run-off is organized 15 days after and s/he is elected with simple majority (art 39).
The functions of PF are incompatible with any other elective mandate, public job, or any other professional activities (art. 42). When the PF cannot perform his/her functions temporarily, his/her powers are temporary exercised by the prime minister. In the case of absolute or definite inability certified by the Constitutional Council, his/her powers are exercised by the President of the National Assembly. In this case, a new president gets elected not less than 30 days and not more than 60 days after the certification of the inability (art 43).
By law and in fact, the Président du Faso is the chief of the Executive; the mode of his/her election (art. 37) confers to the President a popular legitimacy, added to the many powers that the constitution gives him/her through articles 46 to 60. Such constitutional powers are as follows:
· ministers are not individually responsible
· a minister who disagrees with government policies should resign
The powers conferred to the government by the constitution are mainly exercised by the prime minister. S/he:
· is the chief of the cabinet and therefore leads and coordinates government action (art 63)
· ensures the implementation of laws
· appoints high civil and military positions (except for those that fall under the prerogatives of the PF)
· chairs cabinet meetings on delegation (art 64)
· determines the attributions of other cabinet ministers (art 65)
The current government, formed after the 2007 parliamentary elections and led by Tertius Zongo, former Ambassador the United States, is composed of 35 ministers.
The National Assembly holds two ordinary sessions yearly, each of them not exceeding 90 days. The first session opens on the first Wednesday of March and the second on the last Wednesday of September. If this Wednesday falls on the public holiday, the session opens on the following working day (art 87). The National Assembly can also hold extraordinary sessions called for by its President upon request of the prime minister or from the absolute majority of MPs, on a particular agenda. Such extraordinary sessions close as soon as the said agenda is completed (art 88).
The sessions are public; however, the Assembly may meet in closed session as the need arises (art 89).
No MP can be arrested, detained, or tried for his/her opinion or votes expressed during or in relation to his/her functions. (art 95); except when caught in the act “flagrant délit”. No MP can be arrested for correctional or criminal matters unless authorized by 1/3 of the MP when the Parliament is in session, or by the bureau of the National Assembly (art 96).
According to art 101, the law (among others things) determines the rules regarding:
The Judiciary is the guardian of individual and collective freedoms; it ensures respect for the rights and freedoms defined by the constitution (art 125).
The judicial and administrative jurisdictions are as follows: The Supreme Court of Appeals (Cour de cassation) is the highest jurisdiction of the judicial order; the Council of State (Conseil d'Etat) is the highest jurisdiction on administrative matters; the Court of Accounts (la Cour des comptes) is the highest jurisdiction when it comes to controlling public finances, the courts, and tribunals instituted by law. These jurisdictions apply the existing laws (art 126).
The Judiciary is independent (art 129). The President du Faso is the guarantor of the independence of the Judiciary (art 131); s/he is assisted by the Superior Council of the Magistrate, of which s/he is the president (132). The Superior Council of the Magistrate makes suggestions regarding the appointment and assignment of judges at the Supreme Court of Appeals, the Council of State and the Court of Accounts, and the presiding judges of the Courts of Appeals (art 134). Other Magistrates are appointed and assigned on proposition by the Minister of Justice.
Court sittings are public except as otherwise stated by law.
a) The Constitutional Council
The Constitutional Council is competent to decide on the constitutionality of the laws, Parliament rules and regulations, ordinances, treaties, and international agreement. Organic laws are automatically referred to the Constitutional Council before their promulgation. It regulates the functioning of public institutions and settles conflicts arising from their attributions. The Constitutional Council also ensures regularity, transparency, and sincerity of referendums, and presidential and parliamentarian elections. It decides all electoral disputes and proclaims the final results of presidential, parliamentarian, and local elections. It administers the oath of the president (art 152 of the Constitution).
The Constitutional Council is composed of a President, 3 judges appointed to the President on proposition of the Minister of Justice, 3 personalities appointed by the President, and 3 personalities appointed by the President of the National Assembly. Except for its President, the members of the Constitutional Council are appointed for 9 years. The Council is renewed by 1/3 every 3 years under the conditions stated by law (art 153 of the constitution). Only the President, the Prime Minister, the President of the National Assembly or 1/5 of the members of the National Assembly can file a petition before the Constitutional Council (art 157) and its decisions can not be challenged before any other institutions (art 159).
An organic law (Loi 11-2000/AN du 27 avril 2000, portant composition, organisation, attributions et fonctionnement du Conseil Constitutionnel et procédure applicable devant lui) determines the organization and functioning of the Constitutional Council and the procedure applicable before it.
b) Structure of the Judiciary:
Pursuant to the Loi 010/93/ADP portant organisation judiciaire au Burkina Faso, the jurisdictions of the judicial order in Burkina Faso are:
· The Supreme Court of Appeals
· The Appeal Court
· The High Instance Tribunals
· The Instance Tribunals
· The Department Tribunals
· The District (Arrondissement) Tribunals
· The Labor Tribunals
· The Judges for Children
· The Tribunals for Children.
The same law determines the geographical and material competence, the headquarters, and the composition of the jurisdictions mentioned above.
Burkina Faso’s legal system is based on civil law and is mainly copied from the French legal system. Local customary laws also apply to some extent. From top to bottom, the hierarchy of laws in Burkina Faso is as follows:
· the constitution
· regularly signed and ratified international treaties
· acts of parliament
The constitution is the supreme law of Burkina Faso and all other legal acts are derived from it and must conform to it. Adopted by referendum on June 2nd, 1991, the current constitution has been revised three time by Acts no. 002/97/ADP du 27 janvier 1997; 003 -2000/AN du 11 avril 2000; 001 -2002/AN du 22 janvier 2002. It can be accessed here under Textes Fondamentaux.
It provides for human rights and fundamental freedoms. Titre I “Des droits et devoirs fondamentaux” (on fundamental rights and duties) with its 30 articles (art 1 to 30) can be seen as the bill of rights.
Law (la loi) is defined as a regular deliberation of the National Assembly. Legislations are initiated by the Government (Projet de loi), the National Assembly (Proposition de loi) or by a group of 15, 000 citizens (initiative populaire) (art 98) who have their voting right. All projets de loi and propositions de loi are agreed by the Cabinet before they are tabled before the National Assembly.
When agreed on and put on the agenda of the National Assembly, draft bills are discussed and the voted into law. When a law is adopted, the PF has 21 days to promulgate it; such period is shortened to 8 days in case of emergency declared by the National Assembly (art 48). During this period, the PF can also request a second reading of the law, in totality or in some of the sections; such a request may be turned down by the National Assembly. If the PF fails to promulgate a law during the required period, it automatically enters into force after the Constitutional Council has taken good notice (art 154).
An organic law (loi organique) is an act of Parliament organizing the composition, attributions, and function and procedures applicable before a national institution such as the Constitutional Council, the Economic and Social Council, the National Electoral Commission, etc. Such organic laws and the Regulations of the National Assembly, before their entry into force, must be submitted to the Constitutional Council for review against the constitution (art 155).
Article 151 of the Constitution provides that treaties and agreements regularly ratified or approved have, at their publication, higher authority than the one of legislations, provided that the other party applies them.
An “Ordonnance” is an act signed by the PF after deliberation of Cabinet, in a domain reserved for Parliament and in accordance with articles 103, 107 and 119 of the Constitution. It enters into force as soon as published (art 99).
The “décret simple” (simple decree) is an act signed by the PF or by the Prime Minister and Counter-signed by the relevant members of the Cabinet (art 100).
This is an act which is signed by the PF and the Prime Minister after consultation of Cabinet ministers. It is counter-signed by the relevant member(s) of the Cabinet.
Until recently, only the Faculty of Law and Political Science of the University of Ouagadougou was training lawyers in Burkina Faso. The Faculty of Law offers degrees in different braches of law: LLB (Licence es sciences juridiques – 3 years); Maitrise en droit (4 years) and recently LLM (DEA, DESS). In recent times, a second university, the “University Catholique” or “Université Saint Thomas d’Aquain” has implemented a law department. Other private universities and tertiary institutions offer law as subject.
When one obtains a maitrise en droit, one can choose to become a magistrate, advocate, or jurist either in public administration or in private business.
First, one needs to take a test. When admitted, it takes a year of specialized training at the National School of Administration and Magistrature (ENAM). After this, one takes a year of practical training (stage) with a court. Upon completion, successful postulants are sworn in to sit in tribunal and courts. The magistrate profession is regulated by the “Loi organique No 036-2001/AN portant statut du Corps de la Magistrature”.
After successful completion of the fourth year of law studies with honors, one is qualified to take a test to become an avocat. The test is known as the “certficat d’aptitude a la profession d’avocat” - CAPA (aptitude certificate to practice as advocate). When one passes the CAPA, one goes for training in a law firm for two years. Upon satisfactory result, one is called to the Bar to practice as an Avocate. The ’’Loi n°016-2000/AN du 23 mai 2000, portant réglementation de la profession d'avocat’’ and the “Arreté interministériel No 2002 portant organisation du certificat d’aptitude a la profession d’avocat” organizes the advocate profession in Burkina Faso.
There is no structure in charge of comprehensive law reporting in Burkina Faso which makes legal research difficult. Some of the laws applicable in the country before independence can be found in the French law collections. However, within the Ministry of Justice, there is a “Codification Commission” that ensures harmonization of legal Acts and their publication in the form of codes. In this way, the Civil code, the Fiscal code, and the Penal code, among others, have been published. A scientific committee with technical support and advice from the Belgium Cooperation provides support to the Codification process.
The European Union supported the “Programme d'Appui à la consolidation du processus démocratique, l'État de droit et la bonne gouvernance (PADEG)”, a program supporting consolidation of the democratic process, the rule of law and good governance, and support of the publication of Codes and other legal materials.
The country’s Civil Code is replication of the French “Code civil” and to a great extent the “Code Napoleonian”. The Penal code is also drawn from the French Code penal. Only the civil procedure code (Code de procedure civile) was amended to suit the country’s judicial set-up. But again with the OHADA Treaty, most aspects the civil procedure code are no longer applied. The treaty establishing the Organisation pour l’Harmonisation du Droit des Affaires en Afrique, (organization for the harmonization of business law in Africa -OHADA Treaty), aims at harmonizing and facilitating legal procedures in applying business law among member states. Almost all French speaking African countries are members of OHADA.
The government official gazette, known as the “Journal Officiel” publishes laws passed by Parliament and other Acts taken by government such Presidential decrees, etc.
The National Assembly also publishes a series of compendiums “Le recueil des lois de l’Assemblée Nationale,” which is a compilation of laws passed by the Parliament every year. However this publication has been discontinued; the last publication dates back to 2004: Répertoire général des lois votées par l’Assemblée nationale (1992-2004), 1ère edition.
Constitution as revised by loi n°001 -2002/AN du 22 janvier 2002 (in French) can be found here.
Below is a selection of different legislation on selected topics:
Freedom of Association and Demonstration:
Statute of the Person:
Access to Land:
Judicial Divisions and Fair and Equitable Justice:
Transparent Public Management:
· Salif YONABA, « Les grandes décisions de la jurisprudence burkinabé : droit administratif », Collection Précis de droit burkinabé, Université de Ouagadougou, UFR Sciences juridiques et politiques, 2004. This publication contains selected decisions on administrative justice.