UPDATE: The Gabonese Legal System and Legal Research
By Ernest Folefack
Update by Jean-Pierre Bozec
Jean-Pierre Bozec is the founder and Managing Partner of PROJECT LAWYERS, an independent law firm he launched in Gabon in 2011 after being during 8 consecutive years the founder and managing partner of a Big Four law firm in Gabon and other positions in France. He is a registered legal advisor in Gabon and also attorney at law in France (Paris Bar). Jean-Pierre has wide experience of projects and project financing in West and Central Africa. In 18 years of practice throughout Africa, he has developed a strong expertise in State contracts and legal and tax structuring of projects and project financings, notably for utilities, infrastructures, mines and oil & gas projects. Jean-Pierre BOZEC expertise have been has been consistently recognised has been consistently recognised by “Chambers Global, the World’s Leading Lawyers”, the International Who’s Who of Energy Lawyers 2013, the International Who’s Who of Business Lawyers 2014 and also now by 2013 IFLR 1000 for Energy and Infrastructure in Sub-Saharan Africa. While established in January 2011, Project Lawyers has been consistently appointed as the Business Law Firm of the Year in Gabon by Corporate INTL, again in 2013, as well as Gabon law business firm by Global Experts 2013, ACQ5 Global Awards 2013, IFLR 1000 Energy and Infrastructure Sub-Saharan Africa 2013 and others.
Ernest Folefack holds an LL.B from the University of Yaounde (Cameroon), a maîtrise in Public Law and Political Science and a DEA in Public Law (majoring in Health Law) from the University of Bordeaux I, and a Doctorate in Law (with thesis in International Law) from the University Montesquieu Bordeaux IV, France. Since 2000 he has been a Teacher-cum-Researcher in the University of Dschang, Cameroon. His main focuses are on International Law, Law of Regional Integration, Human Rights (trainer and representative of the University for International Moot Courts competitions in International Law and Human Rights Law), Constitutional Law, and Administrative Law (member of IACL/AIDC and the African Network of Constitutional lawyers). He participated in many conferences and seminars in Africa on Human Rights, International Humanitarian Law, and Constitutional Law, and has published articles in the fields of Higher Education, Human Rights, Humanitarian Law, Regional Integration Law, and Constitutional Law. Currently he is an invited research partner at the Danish Institute for Human Rights (DIHR) (August - December 2007).
Published June/July 2013
TABLE OF CONTENTS
Gabon is formally known as the Gabonese Republic. The name is derived from the Portuguese word “gabao”. It won independence from the French on the 17th august 1960. It is situated to the west of the Central Africa region. It is bordered to the north by Cameroon, to the east and south by the Republic of Congo, to the north-west by Equatorial Guinea, and to the west by the Atlantic Ocean. It has a surface area of 267,667 sq km and a population of 1,454,867. It is one of the least densely inhabited countries of Africa. It is endowed with a lot of mineral resources such as petroleum, uranium, phosphate, manganese, diamond, zinc, marble, niobium, and also very precious timber. It is inhabited mainly by about 40 Bantu ethnic groups, among which the Fang number around 30.9%.
Gabon is a unitary state. It is divided into three levels of administrative units: 9 provinces, 47 divisions, and 26 sub-divisions or districts. The capital is Libreville and the urban population is 85%. The currency is the XAF. It is part of Communautaire Financière Africaine (XAF) with five other central African neighbouring countries. The currency is placed under the responsibility of the Bank of Central African States (BEAC), with a fix currency rate with Euro.
Before becoming a French colony, the Atlantic coast of this territory was constantly visited by the Portuguese since 1472. Since 1600 Dutch also took interest in the territory as slave trade was practiced with coastal local ethnic sovereigns, particularly the Mpongwe as intermediaries. Conflicts erupted from time with the Dutch on the control of the coastal islands and mainland but no exploration of the interior was carried out. Exploration and penetration by the church effectively started in 1839 when the king of the Mpongwe signed a treaty for protection with the French. In 1849, BOUËT Willaumez settled slaves liberated from a captured slavery ship on a place he called Libreville (Freetown) earlier called Baraka on which American missionaries from New England settled in 1842. In 1850, an American (Paul du CHAILLU) started exploring the interior and the French intensified it starting in 1862. More French explorers went deeper into the land and signed treaties with tribal chiefs. In 1886, the consolidated territories were made a French colony by decree. As a colony, Gabon became as of 1910 part of the federation of four colonies known as “French Equatorial Africa”. When France was occupied and politically divided in 1940, French citizens living in Gabon fought a brief battle which ended in favour of the Gaullists and Gabon joined the allies. After the war, Gabonese started a struggle for independence. Jean-Hilaire AUBAME created a political party known as the “Union démocratique et Sociale du Gabon” and was the first Gabonese elected to the French National Assemble in 1946. In 1956, Léon MBA was the first Gabonese elected as mayor of Libreville. In 1958, an internal autonomy was given to Gabon within the framework of the then French Community. Independence was granted on the 17th August 1960. In February 1961, Léon MBA was elected President. Because of alleged fraud over his re-election in 1964, he was overthrown by the army in favor of Jean-Hilaire AUBAME, but French troupes re-installed him. He was re-elected in March 1967 then died in November 1967 and was replaced by the vice-president Albert Bernard BONGO. He was an ex-service man of the French army and intelligence. In 1968, he installed a one-party State in favor of his party “Parti Démocratique Gabonaise” (PDG). In 1973, he became a Muslim and took the Name of Omar BONGO. He has since dominated the political life of Gabon even after the return to a multiparty system under pressure in 1990. He died in June 2009. After an interim period where the Head of Senate, Ms Rose Francine ROGOMBE, were appointed Head of State to organise notably the election, Mr Ali BONGO ONDIMBA was elected Head of State for 7 years.
The Constitution adopted in 1961 has been profoundly modified, and even reformed since 1991. It lays down a number of fundamental rights in favor of citizens but above all the organization and functioning of the three main branches of government.
There is a presidential system but it is formally called semi-presidential, with a President (head of State) elected by direct popular vote for a seven-year term (no limits). The executive branch is the most powerful of the three branches. The President appoints a vice-President who is answerable to him alone and can not become president in case of vacancy. The President also freely appoints a Prime minister who is theoretically head of Government as he proposes members of the Cabinet for appointment by the President. The current government was appointed by the Decree of 27 February 2012. It is headed by Mr. Raymond NDONG SIMA
The legislative branch has a bicameral Parliament. The Senate consists of 91 seats elected for six-year terms by members of municipal councils and departmental (or divisional) assemblies. This House of Parliament is currently chaired by Mrs Rose Francine ROGOMBE. The National Assembly consists of 120 seats. Members are elected for a five-year term by direct popular vote. This House of Parliament is currently chaired by Mr Guy NZOUBA NDAMA.
The legislative branch shares the right to initiate new laws with the executive.
To be adopted, legislation must be votes in identical terms in both houses of Parliament. Once passed, to come into force, the Act must be promulgated by the President of the Republic and then published, in accordance with the Constitution.
The judicial power is exercised by supreme courts, appeal courts, and lower courts. The judiciary branch was profoundly modified and developed by the constitutional reform of 1991. It comprises of a number of autonomous specialised supreme courts: the Judicial Supreme Court, the Administrative Supreme Court, the Accounting Supreme Court, the Constitutional Supreme Court, and Court of State Security.
Judicial Supreme Court (Cour de Cassation)
This is the Supreme Court which is referred to as ordinary affairs. It has jurisdiction on criminal, social, commercial, and civil matters. It is divided into four chambers, each specializing in one of the areas of jurisdiction mentioned above. It receives cases in the last instance from appeal courts. Immediately below it are Appeal Courts (Cours d’Appels), the grassroots courts of the first instance, and high courts (tribunaux de première et grande instance).
Administrative Supreme Court (Conseil d’Etat)
This is the Supreme Court in administrative litigations or judicial review of the activities of the Executive and other public law bodies. It also has advisory jurisdiction which allows the government to refer drafts of laws and regulations for legal advice before sending them to Parliament or to cabinet for signature.
Accounting Supreme Court (Cour des Comptes)
This is the accounting court with jurisdiction to audit accounts of government and other public and semi-public bodies. It also has jurisdiction to adjudicate on all conflicts arising as the auditing of such bodies and to sanction the authorities concerned notwithstanding possible criminal investigations and prosecutions.
The Constitutional Court (Cour Constitutionnelle)
Its new organization and jurisdiction was laid down by the 1991 constitutional reform, making it one of the most important Courts to support the rule of law. It is made up of nine judges appointed by: the President of the Republic (3); the President of the Senate (3) and the president of the National Assembly (3). They have tenure of seven years, renewable once. The Constitutional Court has jurisdiction on: the control of the constitutionality of laws before promulgation upon referral by the Head of state, or the president of one or the other cameral of Parliament. For law already promulgated, citizens may raise their unconstitutionality before any lower court which has the obligation to make a referral to the Constitutional. It also has jurisdiction on all electoral litigations, all matters concerning individual fundamentals rights and public liberties, the interpretation of the constitution, and arbitration of conflicts of jurisdiction arising amongst the state’s highest institutions, particularly between the executive and the legislative branches of government.
The Court of State Security
This is not a permanent court, but can constitute for the impeachment of the Head of state, high treason, or violation of oath taken as President of the Republic. It may try on criminal grounds the Prime minister and members of the Cabinet and also Presidents and vice-presidents of the chambers of Parliament.
In addition to the executive, legislature and judiciary, the Constitution of the Gabonese Republic provides for two constitutional institutions.
The National Communication Council
This institution is notably responsible for ensuring respect for the expression of democracy and press freedom throughout the territory. Furthermore, the Council is in charge of controlling programs and regulations in communication and operating rules, and generally speaking, to control the content and the programming modalities emissions advertising broadcast by radio and television public and private.
The term of office of members of the National Communication Council is five (5) years renewable. At renewal time, one third (1/3) of the members appointed shall be new. The President of the National Communication Council is appointed for the duration of the mandate.
He is assisted by a Vice President appointed under the same conditions and for the same duration.
In case of temporary vacancy the interim of the President is provided by the Vice-President.
The Economic and Social Council
This body has jurisdiction over all aspects of economic, social and cultural.
This Council is in charge of Environment, social, cultural, financial and budget policies. In a word, the body has jurisdiction over all aspects of economic, social and cultural
The Economic and Social Council participates in any Commission of National Interest in Economic and Social character.
It collects and writes, with the participation of different entities that compose it, to the attention of the President of the Republic, the Government and Parliament, the Annual Reports of expectations, needs and problems of civil society with the Guidelines and Proposals.
The Economic and Social Council shall give its opinion on the issues with Economic, Social and Cultural character brought to its consideration by the President of the Republic, the Government, Parliament or any other Public Institution.
It must be consulted on any proposed plan or project program to economic, social or cultural, as well as all legislative fiscal, economic, social or cultural. It may be, previously associated with their development.
The Economic and Social Council is seized on behalf of the Government, the Prime Minister, requests for reviews or studies.
The Economic and Social Council may also make the analyse of any economic and social development. It reports its findings to the President of the Republic, the Government and the President of the Houses of Parliament
Are members of the Economic and Social Council
- Representatives of Trade Unions, Associations or socio-professional groupings, elected by their associations or groupings of origin;
- Superiors of the State in Economic and Social Frames field;
-Representatives of local governments elected by their peers.
The President of the Economic and Social Council is appointed by decree of the President of the Republic from among Senior Executives of State appointed the Economic and Social Council.
Two (2) Vice-Presidents and other officers are appointed by Decree of the President of the Republic on the proposal of Representatives of unions and associations or groupings business functions.
The officers of the Board are appointed for the term of office
The Gabonese legal system draws inspiration from the French civil law system and customs. Today, Gabon’s applicable law can be traced at three levels: the national legislation, regional legislation, and international treaties.
National legislation in civil, criminal, and social matters is either maintained by some of the laws inherited from the French colonisation or has been modified to take care of customary laws. Access to the Gabonese national legislation is improved by the regular publishing of the Official Gazette. In addition, libraries and documentation centers below or Lawyers firms can be of help.
The Official Gazette
Gabon has an Official Gazette known as Journal Officiel de la République du Gabon. It started appearing in 1959. It is published by the services attached to the presidency and is known as Direction des publication officielles. It appears only in print form.
There are two administrations located in Libreville from which one can consult the full collection starting in 1959:
The Civil Code
As is the case of most ex-French colonies, the Civil Code of 1804 is the reference document of all aspects of the legal system which is not criminal. The civil code was introduced in colonies as far back as 1833. It comprises the basic rules of family law, the status of persons, inheritance, donation, trust, torts, and contracts. At independence, Gabon continued using the code as updated by the French in 1960 with the ambition of gradually adjusting it to local realities. Since then, only two parts of the code have been voted on:
Part one: Law n° 15/72 of 29 July 1972 and subsequent modification;
There are provisions on the law of persons, in family law (marriage, divorce), the law of filiation and private international law.
Part two: Law n° 19/89 of December 1989
It deals with provisions on the law of inheritance and gifts
To access it, please visit CoopGabon.net.
Other Codes of Gabon: Criminal; Civil Procedure; Criminal Procedure; Social security; Labor; Communication; Administrative courts; Public procurement; Mining; and Forests. A new Code of hydrocarbons is being prepared. To this day, almost all business sectors represented in Gabon are regulated but not necessarily listed on the internet. To find the regulations (Laws, Decrees, Orders, Bylaws) in a business sector and its effective implementation, it is recommended to contact a Gabon law firm directly.
AUTHOR’S NOTE: Unfortunately, there are not a lot of cases published in Gabon. Some (in particular Constitutional decision) may be found in newspapers’ legal announcements, or in some particular books on a specific subject of law such as case laws of administrative courts.
As regarding published codes, they can usually be purchased from the Journal Officiel.
Gabon is member of regional organizations whose missions are to harmonize and unify the economic, monetary, banking, and business laws. A good number of such laws are already applicable in member countries including Gabon.
Gabon is member of CEMAC (Economic and Monetary Community of Central Africa States). Created in 1994, CEMAC is in fact a renovation of UDEAC, a custom union created in 1964. It has adopted a good number of common rules in the domain of custom law, foreign exchange regulation, anti-competition law, transport, maritime transport, etc. CEMAC has a regional court of justice and is also at the origin of harmonized principles of taxation (VAT, personal income tax and corporate income tax). Most of these legal instruments and information can be easily downloaded from the CEMAC pages. For banking regulation and licensing in the CEMAC zone, there is COBAC, which is the banking Commission and a specialized institution.
CEMAC activities are centred around the Regional Economic Programme which aims to "make the CEMAC an integrated economic space emerging, where security, solidarity and good governance prevail, in the service of human development."
This plan has an emerging agenda (2010 - 2025) in three five-year phases for the realization of CEMAC Vision 2025: Phase (2010-2015), which consists in building the institutional foundations of the emergence, the stage (2016-2020) is "the anchor of the pillars of economic diversification in the Community. Period 2021-2025 aims to consolidate previous phases. After its completion, it will lead to the creation of an economic area emerging at the CEMAC in 2025.
Gabonese business law is part of the uniform business law produced by the organization for Harmonization of Business Law in Africa (in French, OHADA). Created in 1993, it involves all French speaking African states. The organization has a number of permanent structures from which adequate information can be obtained:
· Ministerial Council: B.P. 547 Libreville, Gabon
· Permanent Secretariat: B. P. 10071 Yaounde, Cameroon
· The Common Court of Justice and Arbitration (CCJA) for adjudication of cases arising from the application of the business law: 01 B.P. 8702 Abidjan, Côte d’Ivoire
· The regional school of Magistracy (ERSUMA) for the training of judges from member states: 02 B.P. 353 Porto-Novo, Benin
OHADA law is made, outside the Treaty itself, by 9 Uniform Acts.
The Uniform Act on Arbitration Law is the law on arbitration of all states of OHADA. In this regard it is intended to apply to any arbitration occurring in a state of OHADA.
The Uniform Act relating to general commercial law contains provisions on acts of trade, the status of the trader, the goodwill, the interim trade and commercial sale.
The Uniform Act Relating to Commercial Companies and Economic Interest Grouping regulates the establishment, operation and dissolution of commercial companies.
The Uniform Act on the organization and harmonization of business accounting, which aims to harmonize the accounting firms headquartered in the OHADA.
The Uniform Act Organizing Securities presents three types of security: personal, movable and immovable safety,
The Uniform Act organizing simplified recovery procedures and means of enforcement deals with the enforcement of monetary obligations. Its particularity compared to other uniform acts is that it explicitly provides for the repeal of previous provisions, whether or not opposites.
The Uniform Act organizing collective procedures for the settlement of debts; this act regulates the treatment of firms in difficulty.
The Uniform Act relating to contracts of carriage of goods by road aims to put into practice the free movement of goods and people. This rule is consubstantial with the policy of economic integration engaged in OHADA.
The Uniform Act on cooperative companies.
Gabon is member of the Inter-African Conference on Insurance Markets (in French, CIMA) is in charge of regulating and licensing the insurance companies.
The organization is governed by a Treaty of 10 July 1992 as amended from time to time. This treaty gave birth to the Insurance Code and this Code was amended and supplemented by several Regulations.
By signing July 10, 1992 in Yaoundé (Republic of Cameroon) the Treaty establishing an Integrated Organization of Insurance Industry in the African members of the Franc Zone and establishing the Inter-African Conference on Insurance Markets (CIMA) Ministers in charge of insurance intended to provide the new organization with the broadest powers of decisions that they could not use on account of nationals pressures and that was not available to the International Conference of Controls Assurance (CICA ).
Thus, all the powers of supervision were they given to CIMA including the Regional Commission of Insurance Control (CRCA), which is the regulatory body.
Only remained in the exclusive area of jurisdiction of States, the powers of control of the activities of insurance intermediaries and technical experts related to the field of insurance.
All other powers, generally were given to an insurance supervisory body such as the approval of insurance companies and their leaders, the constant monitoring of solvency, the power of injunction and sanctions including withdrawal of approval, shall vest.
Most recently, the power to control the liquidation has been assigned. This power is shared with the Judge controller appointed by the competent court.
In addition CIMA defines the policy of the insurance industry, develop the single law, interprets and modifies. Finally, the Council of Ministers is the sole organ of appeal decisions made by the CRCA against insurance companies.
In a word, if the General Secretariat and the CRCA are technical bodies, the Council of Ministers appears at the end as a legislator and a judge.
Gabon does not recognize the compulsory jurisdiction of ICJ. International treaties ratified by Gabon are applicable in administrations and courts without further incorporation in an act of Parliament. Such instruments are superior to national legislation in case of conflict. Intellectual property is protected in Gabon as it is a member of both WIPO and OAPI.
OAPI is responsible for, among other things, to implement and enforce administrative procedures under the uniform system of protection of industrial property and the provisions of international conventions in this African area which the Member States have acceded and rendering the services related to industrial property.
Regarding literary and artistic property, the organization is responsible for ensuring the promotion and protection, to encourage the creation of national agencies authors, etc..
OAPI must contribute to achieving the objectives of industrial development policies of the African Member States, the following specific objectives:
- protection and publication of industrial property rights;
- encourage creativity and technology transfer through the use of proprietary systems;
- make legal space attractive to private by creating favourable conditions for the effective application of the principles of intellectual property investment requirements;
- implement effective training programs to enhance the capabilities of OAPI to provide quality services;
- create favourable conditions for the exploitation of the results of research and exploitation of technological innovation by domestic firms conditions.
Legal education in Gabon is the responsibility of Universities and professional higher schools. Admission for undergraduate law students is upon graduation with success in high school and obtaining admission into the faculty of Law and Economics. The first degree is obtained after three years (licence en droit), the post graduate studies are more selective and can lead students to Master and doctorate degrees. Graduates with at least a first degree can be admitted into professional school for the public service or legal professions.
The legal professions are limited to those of advocates, public notary, sheriff bailiffs, and legal advisers. Access to these professions is more or less regulated by the members of the profession with the supervision of the ministry of justice. Judges are recruited upon graduation with at least a first degree for two years of training and internship in the National School of Magistracy.
Libraries and Documentation Centres
Permanent Secretariat of the Government
B.P: 91 Libreville; Telephone (241) 77 47 70; Fax: 76 58 38
National Library & Archives
B.P. 1188/2188 Libreville; Telephone (241) 73 72 47/73 25 43/73 02 39. Fax: (241) 73 28 71
B.P 29 Libreville; Telephone: (241) 76 22 64/76 11 88; Fax: (241) 72 61 96.
The Constitutional Court
Telephone: (241) 72 57 17; Fax: (241) 77 43 72
National School Administration and magistracy (ENAM)
B.P. 775 Libreville; Telephone: (241) 72 00 06
Ministry of Labor
B.P. 2256 Libreville; Telephone: (241) 72 37 24
Ministry of Public Service
B.P. 469 Libreville; Telephone: (241) 76 15 27
Faculty of law
Telephone: (241) 73 29 16
Regional Law on Economic and Monetary Law
General Legal Information in Francophone Africa
Taxation codes (les codes des impôts) annual edition, with all important legal instruments on taxation. Editor: Droit Afrique, collection: les codes des impôts. 2013 edition, 416pp.
L’Organisation de la justice administrative du Gabon. Les juridictions administratives dans le monde France – Afrique, in La revue Administrative, Numéro spécial N0 6, Puf, 1999, p 43 – 48.
Le système politique gabonais
TALENCE : S.N., 1992, -489P
KOMILA A IBOANGA, F.
La résistance du pouvoir à l’instauration de la démocratie pluraliste en Afrique : le cas du Gabon. Revue Juridique et Politique Indépendance et Coopération. Vol. 45. N0 1. 1991. –P 10-23
Le Gabon à la recherche d’un nouvel ethos politique et social
Politique Africaine. N0 43. 1991. –P 50-62
Les enjeux de la construction de l’Etat du Gabon : essai d’anthropologie et d’histoire du droit.
Paris : Université Paris I, 1991, -491P.
PIE, Frédérique ; LE ROY, Etienne
Les politiques pénales en Afrique noire francophone : le cas du Gabon
Bordeaux : CEAN, 1989, - 195P.
REMONDO, Max ; GONIDEC, Pierre-François
Le Droit administratif gabonais.
Paris: LGDJ, 1987, -303P