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Visiting the Senegalese Legal System and Legal Research: A Human Rights Perspective

 

By Horace Sègnonna Adjolohoun

 

Horace Sègnonna Adjolohoun, holds a B.A. (NSA Benin 1998), an LL.B. (Usam 2004), an M.Sc. (Brussels 2005), and an LL.M. in Human Rights and Democratization in Africa (Pretoria 2007). He is a lawyer and human rights expert, and currently serves as the Benin Constitutional Court Fellow. He has worked with the Francophone Africa Supreme Courts Association on a judicial human rights protection program (2001-2006). Research interests include international human rights law in domestic courts, corruption and the realization of socio-economic rights, national human rights institutions, human rights in Africa by the African Union, and RECs and the United Nations.

 

Published March/April 2009

 

Table of Contents

1. Introduction

1.1 Accessing the Law of Senegal

Part I:   Human Rights Law in Senegal: Institutions and Norms

2. Overview of the Senegalese Legal System

2.1The Legal Framework for Promotion and Protection of Human Rights

2.2 The Domestic Status of International Human Rights Law

2.3 Domesticating International Treaties and Decisions of Treaty Bodies

3. Domesticated Treaties and Relevant Legislation

3.1 Judicial Interpretation of Treaty Provisions

4. Procedure for the Domestic Enforcement of Foreign Judgments

5. Principles Governing Compliance with Judgments: Well-Established Principles and Institutions with Inherent Weaknesses

6. Overview of the Country’s Membership to Regional Bodies and Procedure for Enforcement of Decisions of Regional Courts

Part II:                   The African System

7. The African Charter on Human and Peoples’ Rights

7.1 The Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights

Part III: Conclusions and Recommendations

8. Conclusions

9. Recommendations

 

1. Introduction

 

Senegal is a relatively decentralised[1] civil law country with three branches of government, the executive, legislature and judiciary, which share in the state powers. According to Senegalese Constitution,[2] which is the supreme law of the land, the country is a liberal democratic republic.[3] The organs of state power are the President of the Republic, the National Assembly, the Government and the Judiciary.[4] Constitutionally organised as a semi-presidential system with checks and balances, the rule of law and separation of powers,[5] Senegal nonetheless has a rather strong presidency.

 

The President of the Republic is the head of state, and the Prime Minister is the head of government. Although the Constitution establishes the Prime Minister’s government as autonomous and affords it executive power, the Government appears to be controlled by the president. Appointed by the President of the Republic, who is very active in the day-to-day administration of the country, the Prime Minister is confined to “heading the Government” in conducting and coordinating national policies and public affairs. The Government is accountable to both the President and the National Assembly,[6] and both institutions are empowered to dismiss the Prime Minister. Ministers are appointed by the Prime Minister in consultation with the President of the Republic. All Constitutional and State Councils’ members are appointed by the President of the Republic. Members of the High Court of Justice, which has the power to prosecute top officials,[7] including the President, are appointed solely by the National Assembly.

 

Judicial power is vested in several different institutions: the Constitutional Council deals with constitutional matters, which as of to date do not expressly include human rights issues; the Conseil d’Etat (State Council) deals with administrative matters; the Court of Cassation deals with criminal matters; the Cour des Comptes is charged with checking public accounts, and other courts and tribunals also exist. Each of these superior courts is at the top of the hierarchy of courts for their specified jurisdictions. The appointment of all judges is done by the President of the Republic on the recommendation of the High Council of Magistrature,[8] after the nomination by the minister of justice. Civil offences and procedure are contained in the Civil Code and Civil Code of Procedure. Criminal offences and procedure are contained in the Criminal Code and the Criminal Code of Procedure.[9] These are national laws, which apply to all courts throughout the country without respect to their level in the judicial hierarchy. Presumption of innocence, public trials and right to a legal counsel are guaranteed for criminal proceedings. For family inheritance and other related cases, Muslims are given a choice between customary law and civil law. Despite relatively recent legislative reforms dealing primarily with the family code, equality between men and women is yet to be solidified in Senegal.[10] Importantly, Senegal has ratified without reservations the International Covenant on Civil and Political Rights (1978) and the International Covenant on Economic, Social and Cultural Rights (1978), the Convention on the Elimination of all forms of Discrimination Against Women (1985) and the Convention on the Rights of the Child (1990). The country is also party to the African Charter on Human and Peoples’ Rights (1982) and its Court Protocol (1998).

 

A bicameral parliament makes up the legislature, which comprises the National Assembly of 150 members as the lower house, and the Senate as the upper house with 100 members.[11] National Assembly sessions, debates, outcomes and documents are published in extenso in the Journal Officiel de la République du Sénégal.[12] Law reporting is also done through the Gazette.[13] Senegal disposes of various legislation in the form of codes including on environment, telecommunications, gas, forest, maritime, and labour.[14]

1.1 Accessing the Law of Senegal

 

Although accessing legal instruments in force within the Senegalese legal order, or cases decided by domestic courts, is challenging, there are certain sources and entry points which facilitate research on the law of Senegal. In situ research at domestic courts is a primary source for both collecting instruments and tracing cases. For accessing codes (civil, criminal, public contracts, mining, and others), decrees, and other statutes, the best source is the official website of the Government of Senegal.[15] Law libraries at Cheikh Anta Diop University in Dakar and Gaston Berger University in Saint Louis are also useful places to find the civil code, the civil code of procedure, the penal code, and the penal code of procedure, as well as law reports and law journals. Legal academia in Senegal does not include Law Schools in the common law countries’ models. Dakar and Saint Louis Universities rather host Law Faculties, which differ in many instances from what is seen in common law countries. For example, sustained law shops, journals and reports, legal clinics and other specific legal activities are not part of Law Faculties’ tradition in Senegal, though the Gaston Berger University in Saint Louis hosted the African Moot Court Competition in 2007 and their Law Faculty team were runners-up in 2008’s Moot at the University of Pretoria in South Africa.[16]

 

However, Senegal has a well established, organised and productive Judicial Training School (Centre de Formation Judiciaire de Dakar), which trains magistrates and other legal practitioners through specialised courses, seminars and other workshops. With regards to initial training of magistrates, the National School of Judicial Training (École Nationale de Magistrature) also recruits and selects trainees for a two-year judicial course. Both schools are located in Dakar. In addition, the UNESCO Human Rights Chair at Cheikh Anta Diop University in Dakar is renowned for training graduates of civil society groups, women organisations, lawyers and other law faculties in human rights and democracy. In the absence of an official law journal in Senegal, law reflections are published through various revues or bulletins by schools referred to above, as well as other human rights and civil society organisations. Unfortunately, no online access to such publications is available, as they can only be obtained at local bookshops in situ. Online, RevueBanque,[17] an e-shop with the ability to access or scan legal documents, proposes existing and new codes for publication. Some legal instruments including the Family Code and recent related amendments are accessible on Droit Francophone,[18] an online French-speaking legislative and jurisprudential database gathering information on the judiciary’s activities in Francophone Africa. Finally, obtaining relevant and updated information on Francophone Africa in the legal and judicial fields proves to be easiest and most effective when done from judicial networks. Three such networks are the Francophone Africa Supreme Courts Association,[19] the Francophone Cassation Courts Association[20] and the Francophone Constitutional Courts and Councils Association.[21] Their websites provide access to laws, decisions, statutes, courts organisation, legislation, and membership to regional and international relevant Organisations.

 

While providing an overview of the legal system of Senegal, this paper will emphasize norms and institutions which are in place that enable Senegal to domesticate and apply international law, especially human rights law. The following sections give relevant information regarding various state’s organs and powers, courts, and national and international legal instruments. Key legal issues are also discussed, such as equality in and before the law, access to justice and effective justice, women and children’s rights, gender equality, harmonisation of domestic legislation with ratified international law, and reception and application of foreign international judgments.

 

Part I: Human Rights Law in Senegal: Institutions and Norms

 

2. Overview of the Senegalese Legal System

 

The Constitution of Senegal addresses the promotion and protection of human rights in both the Preamble and the Bill of Rights. The Preamble affirms the people’s adherence to “the international instruments adopted by the United Nations and the Organization of African Unity,” citing among others, the Universal Declaration of Human Rights (UDHR), the Convention EDAW, the CRC and the ACHPR.[22] Paragraph 12 addresses discrimination and inequality. The Preamble also proclaims the right of everyone to participate in public affairs and have access to public services.[23] Importantly, the Preamble is ‘an integral part’ of the Constitution.[24] The Bill of Rights is enshrined in Title II of the Constitution, entitled ‘Freedoms and the person’. Equality before the law – with express mention of sex – is protected in Title I, entitled ‘The State and sovereignty’. The Bill of Rights covers all three ‘generations’ of rights and seems to adopt indivisibility and interdependence between categories of rights. Both individual and group rights are recognized. Particularly, Article 8 sets out a number of rights that are usually contained in a Bill of Rights. It reads:

 

The Republic of Senegal guarantees to all citizens their individual fundamental freedoms, economic and social rights, as well as group rights. These freedoms and rights are: Civil and political liberties, freedom of opinion, freedom of expression, press freedom, freedom of association, freedom to hold meetings, freedom of movement, freedom to protest, cultural freedoms, religious freedoms, philosophical freedoms, union freedoms, freedom of enterprise, the right to education, the right to literacy, the right to property, the right to work, the right to health, the right to a healthy environment, and the right to a variety of information. These freedoms and rights may be exercised under the conditions provided by law.

 

Specific civil and political rights are guaranteed in Article 7 (life, security, protection against physical mutilation, gender equality in and before the law), Article 9 (nullum crimen and right to defence; comprehensive fair trial rights’ protection), Article 10 (freedom of expression and press subject to public order), Article 11 (creation of press body without authorization required, but with press regulations set up by law), Article 12 (freedom of association subject to law and public order), Article 13 (secrecy and inviolability of communication and correspondence subject to law), Article 14 (freedom of movement subject to law), and Article 16 (inviolability of home – but not clear right to privacy – subject to judicial searches, public order and security). Under Title II, only one right is specifically guaranteed in the range of economic, social and cultural rights: Article 15 (right to property subject to public necessity expropriation but prior due compensation, gender equality in possession and ownership of land). Other rights in this category are provided under subsequent sections in Title II: ‘Marriage and the family’ (Articles 17 to 20), ‘Education’ (Articles 21 to 23), ‘Religions and religious communities’ (Article 24) and ‘Work’ (Article 25 – specific mention of gender equality in employment, salary and taxation; right to create and join labour unions).

 

 

2.1 The Legal Framework for Promotion and Protection of Human Rights

 

The general legal framework in Senegal is also in favour of the promotion and protection of human rights, although the country has not enacted sufficient legislation to respect implementation clauses in major human rights treaties.[25] Efforts have been made from an institutional standpoint. The following state organs have been established and are involved in the promotion and protection of human rights:

 

  • The Haut Commissariat aux Droits de l’Homme et à la Promotion de la Paix :

Established in 2004[26] and led by a woman lawyer and government minster,[27] the Commission includes a Guichet des droits de l'homme (a board) in charge of receiving complaints and making suggestions to the President of the Republic on subsequent responses.[28] The Commission also comprises a follow-up working group in charge of following the implementation of observations and recommendations made by the Comité Sénégalais des Droits de l'Homme.[29]

 

  • The Comité Sénégalais des Droits de l’Homme :

The Senegalese Human Rights Committee is the state human rights institution. Originally, it acted as a representative of trade unions and youth and women’s movements.[30] Its functions have subsequently been enlarged, as it serves as an intermediary between public powers and human rights non-governmental organisations, and coordinates the work of those organisations.[31] In 1997, the Committee became an independent tripartite and advisory body for dialogue, consultation and promotion of human rights.[32] The Committee was in practice the body chosen by the Government to make proposals for the implementation of the decisions of the human rights bodies, such as the Human Rights Committee (HRC) in the case of Famara Koné v. Senegal, discussed under sub-section 1.3 below.

 

  • The Ombudsman (Médiateur)

Traditional attributions and powers of the Ombudsman have been extended to preventive intervention and proprio mutu seizure. Further, it has competence to settle different conflicts between public administration and private corporations.[33]

 

  • The Comité inter-ministériel des droits de l'homme et du droit international humanitaire

This body is an inter-ministerial Committee on Human Rights and Humanitarian International Law, which complements the work of the Senegalese Human Rights Committee and represents Senegal in international human rights bodies.[34]

 

2.2 The Domestic Status of International Human Rights Law

 

Senegal is a monist country. Monism is also known as the doctrine of automatic incorporation.[35] This means that once a treaty is ratified by a state and published at domestic level,[36] it automatically becomes part of the law of the land and can be invoked as a cause of action before domestic courts. Moreover, in case of conflicts, municipal law takes a subordinate position.[37] Under Article 98 of the Senegalese Constitution, ‘treaties or agreements duly ratified shall, upon their publication, have an authority superior to that of the laws, subject, for each treaty and agreement, to its application by the other party’. A question may arise as to whether or not ‘the laws’ referred to include the Senegalese Constitution itself. Article 97 of the Constitution clears this equivoque by providing that where an international agreement has a provision contrary to the Constitution, the authorization of ratification or approval may only intervene after the amendment of the Constitution.[38]

 

Despite this normative precedence IHRL enjoys in the municipal order, the monist ‘direct incorporation’ does not seem to be unequivocal in judicial practice in Senegal. The best example is the Habré case[39] where the convention was ratified and published but was refused applicability. Against ‘direct incorporation’ of international law at domestic level under monism, was opposed a judicial ‘non-self executing’ status, thus indicating that there is a long way to go from ‘direct incorporation’ to ‘direct application’. The effect of this is that a convention can become part of domestic law through monist direct incorporation or even dualist legislative enactment without being of any remedial use for various administrative, legal or judicial technicalities. It is thus important to find out what the concept of a ‘self executing’ norm encompasses and whether the African Court Protocol is self executing or not, especially as applied to the Senegalese case study.

 

A norm which is deemed to be ‘self executing’ is one that ‘lends itself to judicial or administrative application without further legislative implementation’[40] or normative action. Bearing in mind the vagueness and complexity of the language in which international human rights instruments are generally drafted, these conventions might be self executing or not, wholly or only in some of their provisions. It will all depend on the domestic legal order. For instance, it is foreseen that the ICESCR will easily be self executing in South Africa because municipal law already provides for similar or same standard rights.[41] By contrast, while the Senegalese Criminal Code recognises torture as a crime in accordance with Article 4 of the CAT, universal competence was denied to the municipal judge because the country took no legislative action as of implementing Article 5(2) of the same convention. Generally speaking, Francophone Africa judges consider a treaty to be ‘self executing’ if ‘provisions are sufficiently precise to fit into legal and financial structures of the municipal law.’[42] Consequently, for non-self executing treaties to be applicable, states parties are obliged to undertake measures such as vote of credits, enactment of laws or modification of existing legislation. In any case, there are three principal relevant factors as to whether a treaty is self executing or not:[43] whether the intention of the drafters was to create a self executing treaty in whole or in part, whether the purpose and subject matter of the treaty was to create specific individual rights, and finally, what is the nature of states’ obligations under the considered treaty.

 

Referring to these factors, a priori, the African Court Protocol is arguably self executing in Senegal. First, the Protocol is a procedural instrument to the African Charter, both of which Senegal ratified. State parties to the Protocol recognise the establishment of the Court as a means of attaining the objectives of the Charter.[44] Further, by adopting the Protocol, parties clearly intended to provide a very important right, without which Charter’s rights would be worthless: the right to both procedural and substantive remedies in case of violation. Second, the purpose of the Protocol is to create an individual right to remedies as reads its Article 27(1). This specificity of the Protocol makes the remedies it provides a sort of ‘bare minimum’ right of immediate application upon domestic incorporation. Besides, the Charter’s rights constitute the subject matter of the Protocol. Finally, states’ main obligation under the Protocol is the implementation at the domestic level of the judgments that will be rendered by the Court. In this regard, by ratifying both the Charter and the Protocol, Senegal committed itself to apply these conventions, including the implementation clauses provided therein. More specifically, Senegal must not only comply with the judgments, but must also guarantee their execution according to Article 30 of the Protocol. Notwithstanding the precedent development, it is important to stress that whether there exists in Senegal relevant municipal laws into which the African Charter’s provisions can fit is another issue. Senegalese justices from both the Court of Cassation and the State Council consider the very poor national case law on the Charter’s rights[45] to be a result of the fact that municipal law – they cite the Constitution, including its preamble as well as laws on freedoms – already recognises and provides the considered rights.[46] It is worth noting that during the colloquium referred to above, the Senegalese justices commented that the Habré decision was a refusal of cassation judges to implement the convention, which Article 4 wordings give unequivocal universal competence to Senegal to do, notwithstanding Article 669 of the Criminal Code of Procedure.

 

All of this aside, the self executing nature of the African Court Protocol argued above will not a posteriori stand in front of actual questions related to the implementation of the African Court judgments in Senegal. The intrinsic nature of an international convention does not make it precise and comprehensive enough to deal with technicalities related to the various domestic realities of states parties. Therefore, it shall be considered that a margin is left to states to organise necessary measures (including administrative, legal and financial) ‘to give effect to’ the considered convention. Hence, the relevant question is whether Senegal has taken necessary administrative, legal and financial measures for the African Court Protocol to be self executing, meaning that the Court’s judgment may be enforced in Senegal without any impediment. Demonstrably, this is not the case to date. Indeed, a framework exists in Senegal: administrative (political and administrative bodies), legal (judicial bodies and the exequatur procedure) and financial (individuals may be paid compensation by the minister of finance). Yet, as developed later in this report, they have not been designed for and will not meet the effectiveness demanded by human rights matters, which the African Court’s judgments will be dealing with. Consequently, they will need to be revisited and adapted if not newly designed for Senegal to provide for the specific framework conducive to its commitments under both the African Charter and the African Court Protocol. To sum up, the African Court Protocol is yet to be effectively domesticated in Senegal. The question is discussed further on in this paper.

 

For now, regarding the recognition of treaty bodies at the domestic level, once international agreements (including human rights treaties) are binding upon Senegal and receive direct application in the municipal order, relevant treaty bodies should consequently be recognised by the Constitution, as well as municipal, administrative, and judicial authorities. At this point, it shall be recalled that ‘Senegal has accepted the primacy of international standards over national norms’.[47] Such recognition is not, however, to be presumed, as sometimes international agreements provide for prior acceptance by states parties of procedures (e.g individual complaints) or jurisdiction (to hear a particular case) of international judicial or monitoring treaty bodies. In this regard, Article 34(6) of the Protocol provides that the African Court shall not receive any petition under Article (5)3 – that is, individual complaints – involving a state party which has not made a declaration accepting the competence of the Court. Senegal is yet to make such declaration.

 

There is no express mention of the recognition of international customary law in the Senegalese Constitution. Yet, as has been pointed out above, the Preamble is part of the Constitution and thus acquires the same rank as the Bill of Rights’ provisions. Under the Preamble, Senegal adheres to the UDHR and the international instruments adopted by the United Nations, some provisions of which have gained universal normative value.[48] For instance, some universal and core rights such as non-discrimination, gender equality, education and health are guaranteed by the Constitution. Furthermore, the Senegalese people seem to share some universal human rights values such as ‘their determination to fight for peace and fraternity together with all the peoples of the world’[49] or ‘their recognition of the existence of sacred and inalienable human rights as the basis of any human community, of peace and of justice in Senegal and the world’.[50] The recognition of treaty bodies’ concluding observations is not expressly mentioned in the Constitution.

 

2.3 Domesticating International Treaties and Decisions of Treaty Bodies

 

West African countries of the French legal tradition follow the same ratification process.[51] The process generally includes two phases: the agreement’s review phase and the ratification phase strictly speaking.

 

Review of the agreement

After the signing of an Agreement by a duly mandated representative of the state, it is up to the Minister in charge of Foreign Affairs to make a referral report in a document known as a statement of reasons, to prepare a draft bill authorizing the President of the Republic to ratify it and a draft decree ordering its publication, and to forward all of the above in the form of a single document, in several dozens of copies, to the Secretary General of the government or the corresponding authority. This authority then submits the document to the Cabinet and, after its adoption by the Cabinet, to the monitoring body in charge of verifying the constitutionality of legislation.[52] When the document reaches this body, there are two possibilities:

  • The agreement is considered unconstitutional and may only be ratified after a review of the country’s Constitution;[53]
  • The text is deemed to be consistent with the Constitution.

 

In the latter case, the text of the agreement is sent to Parliament, which reviews and adopts a law authorizing the President of the Republic to ratify the agreement.[54] Under this procedure, the text of the Agreement is reviewed by three state authorities, which are:

  • The executive authority (Cabinet);
  • The judiciary (body in charge of monitoring the constitutionality of laws); and
  • The legislative authority (Parliament).
 
Ratification

The act whereby Parliament authorizes the President of the Republic to ratify an agreement is communicated to the Minister in charge of Foreign Affairs, who, on that basis, prepares letters of ratification and submits them to the President of the Republic for signature. The letters are produced in two copies, and after they are signed, they are sent back to the Ministry in charge of Foreign Affairs, which then sends one copy to the other party in the case of a bilateral agreement or to the depositary in the case of a multilateral agreement. The Ministry keeps the second copy. However, in some cases, rather than enacting a law authorizing the President of the Republic to ratify an agreement, the Parliament may directly ratify the agreement in question through the adoption of a ratification act.

 

As described above, once they are ratified and published in the official gazette, international treaties take precedent over all laws in Senegal. By virtue of this direct incorporation under monist systems, international treaties become law in the municipal order. Yet, as stressed in sub-section 2.2 of this report, this is not as easy, as situations may arise where an international treaty has no legal ground in municipal, normative, or procedural framework to be directly applied. Hence, there may be a difference between domestic validity and direct applicability,[55] not only from a legal standpoint as such, as it was argued in the Habré case, but also in practice. Indeed, international conventions need to fit within a certain legal, administrative and financial domestic framework in order to become directly applicable as any other municipal law. Moreover, direct applicability may be hampered by the lack of judicial activism, which enables purposive and progressive interpretation of international treaties when adjudicating human rights matters. As a matter of fact, monist countries such as Senegal[56] and Benin[57] have refused to apply IHRL after ratification. Surprisingly, despite the absence of implementation measures or even prior to ratification, judges have directly or indirectly applied IHRL – namely the African Charter – to adjudicate cases in Botswana,[58] Ghana,[59] and Kenya.[60] For all those reasons, domestication should be understood as bringing international law home through implementing legislation or other means as generally required by treaties. In Senegal, domestication has been done through enactment of new legislation, or repealing or amendment of inconsistent legislation as discussed below.

 

The Senegalese government was only in a few cases required to implement the decisions of human rights treaty bodies. The government’s typical practice in such an instance has been an institutional and participatory approach, which consists of requesting the Senegalese Human Rights Committee and other national competent bodies to make proposals for the implementation of the decision being considered.

 

The most relevant to date is the Famara Koné case, decided by the UN Human Rights Committee in 1994. This case illustrates how Senegal has received and implemented an international human rights body’s decision. The case goes back to 1982, when the victim, a Senegalese citizen, was arrested and detained by the government for his involvement in an alleged coup in Gambia. Transferred to Dakar, he was convicted for ‘acts deemed to compromise national security’, arrested and then released on bail for medical reasons. Ultimately, his case was never heard as he benefited from an amnesty in 1988. In 1989, he filed a complaint with the UN Human Rights Committee for ‘torture, degrading treatment and persecution for his political opinion as well as arbitrary detention’. The UN Committee found Senegal in violation of the ICCPR, and recommended that the government compensate the victim for its abuse of power.[61] Pursuant to this decision, the Prime Minister of Senegal requested the Senegalese Human Rights Committee to examine the case for an amicable domestic settlement.[62] In 1997, an agreement was signed between the state (represented by the Principal Inspector of Judicial Services) and Mr Koné. In terms of this agreement, Mr Koné accepted a plot of land to live on, a sum of CFA 500 000 (about 762 Euros), and medical insurance in compensation for damages he had suffered. In May 2001, the victim was still to receive a plot of land, and filed a complaint with the Senegalese Human Rights Committee. In its response, the Committee in 2001 had requested the State Minister in Charge of Presidential Affairs to provide all necessary information on the case.

 

3. Domesticated Treaties and Relevant Legislation

 

Although Senegal has a strong record of ratification of international human rights treaties, implementing of such legislation is very poor especially as regards economic, social and cultural rights. The ESCR Committee noted as follows:[63]

 

Although the new Constitution of Senegal in its preamble guarantees the enjoyment of economic, social and cultural rights, no legislation, apart from the new Labour Code, has been passed to implement the rights guaranteed under the Covenant.

 

The following implementation efforts have been made since Senegal’s second report to the Committee:

 

·       Law No. 2005-02 against human trafficking and for protection of victims;

·       Amendments in 2004 to Law Nos. 91-92 to make education free and compulsory for children aged 6-16;

·       Incorporation of CRC into the Constitution of 2001;

·       Law No. 99-05 of 1999 prohibiting excision, sexual harassment, paedophilia and sexual assault, as well as all forms of sexual mutilation, sexual violence and corruption of minors; and

·       Labour Code of 1997, which fixes minimum age of employment at 15.

 

As regards civil and political rights, Senegal has adopted a legislation incorporating the conventional incrimination of torture in its Criminal Code,[64] in accordance with Article 4 of CAT.

 

3.1 Judicial Interpretation of Treaty Provisions

 

Reliance on International Human Rights Law in Judicial Adjudication:

 

Although no specific judicial body is constitutionally vested with adjudicating human rights matters in Senegal, the Constitutional Council has decided interesting cases.[65] In Decision 15-94 of 27 July 1994 for example, the Council decided that by differentiating between candidates for the magistracy, Article 4 of the Law 92-27 of 30 May 1992 was contrary to the Constitution. The Council based its decision on ‘the constitutional principle of equality by reference to Article 6 of the Declaration of the Rights of the Man and the Citizen of 1789 and article 21(2) of the UDHR’.[66] In another decision,[67] the Council made reference to ‘equality in law and before the law as enshrined in the Declaration of 1789, the UDHR and Article 3 of the ACHPR’.[68]

 

Reliance on International Human Rights Law upon Ratification but Prior to Domestication:

 

On this point, cases decided by Senegalese courts are quasi-inexistent.[69] Two cases can be relied on to exemplify this state of affairs. The first is the well-known Habré case in which both the Court of Appeal of Dakar and the Senegalese Court of Cassation held that the United Nations Convention Against Torture (CAT) was not directly applicable in Senegal. According to the Courts, the municipal judge was incompetent to apply the Convention as it is not self-executing, but needs to be integrated into the municipal order by ‘necessary measures’ establishing local courts’ competence. According to the judges, the CAT can only be appreciated under Article 669 of the Code of Criminal Procedure.[70] Even though the case was not about Senegalese courts receiving and enforcing an international judgment, it gives an idea of the reaction such judgment may face where internal law or legal technicalities are considered to supersede international conventions.

 

The second case refers to the ‘transfer’ to the International Criminal Tribunal for Rwanda of a Rwandan refugee residing in Senegal who was accused of genocide. Senegal executed the referral of the ICTR in application of the Rome Statute.[71] This is an interesting case which shows that Senegal may respect orders from an international judicial body. But a referral is not a judgment, the enforcement of which may require a specific procedure for reception and have financial implications.

 

Considering that application of IHRL may cover both adjudication and reliance as a cause of action, the Sega Seck Fall case[72] is also deemed of interest. In this case, Mr. Fall, a trade union leader, challenged before the former Supreme Court of Senegal[73] a presidential decree which dismantled the Senegalese Teachers’ trade union. He requested that the Court declare the decree in violation of the WTO Convention no. 87, Article 4 of which provides that a workers’ association cannot be dissolved by an administrative act. The Supreme Court rejected this claim on the ground that there was no proof of publication of the convention. The judges then proceeded to argue that, even assuming the convention was applicable in Senegal, ‘it shall not in the “present conditions” prevail on the law, which the impugned decree legally takes from’. Such pronouncement is surprising at least from two standpoints. First, while the Supreme Court’s judges argued the lack of publication, they seemed to forget that the principle nemo censetur legem ignorare applies equally and foremost to judges. Second, the terms “in the present conditions” seem to suggest that the case was decided under the particular circumstances of the instance. Unfortunately, the “particularity” of such circumstances has not been made clear by the judges. Eventually, Senegal put an end to this contradiction by adopting its Code of civil and commercial obligations. This case is similar to the Habré case, following which Senegal adapted its legislation to organise the trial of Hissen Habré.

4. Procedure for the Domestic Enforcement of Foreign Judgments

 

The existing procedure is the exequatur applicable to foreign judgments seeking enforcement in Senegal. However, it is important to mention that the exequatur is a procedure aimed at ‘declaring enforceable in a state a judgment or an arbitration decision rendered in another state’.[74] For instance, this would be a decision of a Senegalese judge giving to a judgment of a Nigerian court the necessary binding force in the Senegalese legal order. In practice, the considered dispute often involves only private persons. This is because public entities, namely states’ entities and officials, generally benefit from immunities on foreign territories. It will therefore be almost impossible to have Senegal condemned by a judgment from a Nigerian court, which would lack both competence and legal normative ground to do so. Hence, it is necessary to distinguish between national and international or supranational judgments when it comes to enforcement of foreign judgments in Senegal, and Francophone Africa in general.

 

Even though the exequatur appears to be relevant to only “national judgments,” it is deemed of interest as, in any case, both national and international judgments will a priori need an enforcement ordinance in order to be implemented. Furthermore, it is useful to find out how foreign judgments are received in the Senegalese municipal order. The exequatur is filed with the President of the Regional Tribunal, which has jurisdiction rationae loci.[75] It is subordinate to five general conditions and one specific one:

 

·       The international competence of the foreign court issuing the judgment (namely competence rationae materiae);

·       The competence of the law applied to settle the dispute;

·       The respect of the principle of contradictory (fair trial rights, defence rights, parties should have been summonsed, represented or declared defaulting);

·       The absence of fraud to law;

·       The decision shall not be contrary to the public order or a domestic judgment.[76]

 

As far as the general conditions are concerned, the exequatur can be refused if the applicant was discriminated against, namely by being treated differently from national applicants of the state from which originates the foreign judgment. Bearing in mind the habitual slowness of judicial proceedings in African countries in general, the exequatur can be a very challenging procedure. Further, the exequatur judge is left too much discretion and can delay or even refuse to grant the required visa. Then, in any case, an enforcement ordinance and registration are indispensable to have a judgment implemented. These two conditions are applicable indifferently to foreign judgments and decisions of Senegalese courts seeking enforcement in Senegal.

 

With regards to foreign judgments coming from supranational bodies, it is necessary to put the exequatur procedure into context. Namely, the relevant question is whether the forthcoming decisions of the African Court fit into the definition of foreign judgments to which exequatur applies. Put another way, are the African Court’s judgments considered foreign judgments and do they need to be granted exequatur to become enforceable in Senegal? As stated above, the exequatur procedure is applicable to ‘foreign judgments’ defined as those coming from ‘another state’. Thus, only national judgments are concerned, such as, for example, a judgment from a Nigerian court seeking enforcement in Senegal as exemplified above. Such an approach is understandable, as decisions cannot go from one legal order to another without being subjected to the receiver’s legal check. In such circumstances, how should decisions coming from supranational or international judicial bodies be dealt with? Should not they be considered ‘foreign judgments’ as well since they come from another legal order? The answer to this key question goes back to the monism theory itself. As exemplified below, it appears that the normative direct incorporation and applicability of IHRL at the municipal level under monism applies for bodies established under such treaties. Obviously, exceptions are made for conventions including provisions on reservations and other similar declarations.

5. Principles Governing Compliance with Judgments: Well-Established Principles and Institutions with Inherent Weaknesses

As discussed above, in Senegal, the exequatur applies only to foreign judgments coming from foreign national courts. However, arbitral sentences coming from supranational bodies may need exequatur to be enforceable in Senegal, though under quite different conditions.[77] Thus, the general principle is the exequatur. To this principle, exception is made for judgments coming from international judicial or administrative bodies established under conventions to which Senegal is party. Demonstrably, such judgments should no longer be considered as international once they enter the municipal order. They must be given the same reception and enforcement as domestic judgments because the law they adjudicate has become a municipal law. At the end of the day, these judgments will face the same difficulties as any domestic judgments. For instance, in Senegal, just as throughout Francophone Africa, the litigant will have to register the judgment and ask for an enforcement ordinance with the rationae loci or rationae materiae competent municipal judge. The enforcement ordinance orders any competent public agent to implement the judgement. The next stage of the process should be as simple as for any other domestic judgments. With the help of a lawyer or a bailiff, the litigant will have the judgment enforced. In cases where the judgment is against the state, the Judicial Agent of the State attached to the ministry of finance shall be seized or called before the judge for necessary reparations. In sum, the municipal ordinary judge plays the central role in the enforcement process. This demonstrably raises concern with regards to the implementation of the African Court’s judgments. Is any judge in Senegal competent to deal with human rights matters, which the African Court’s judgments will be adjudicating? In democracies, deciding human rights issues is vested in specific jurisdictions as provided by constitutions.

 

In Senegal, the Constitution is silent on which municipal judicial or administrative body is competent to deal with the enforcement of international judgments in the application of IHRL. As the law stands, there is no specific procedure or competent body for the enforcement of these particular judgments. This means that litigants will have to seek enforcement ordinance with an ordinary judge, who might refuse it. In this case, the Constitutional Council may be of help, but the institution arguably holds no such competence and individuals lack direct access to the institution. However, it is not impossible to overcome these problems as the Council is actually more empowered than it appears.

 

It is interesting to point out first that the Senegalese Constitution is very open to IHRL, with an express mention of the African Charter, which rights the African Court Protocol is aimed at implementing. In most constitutional systems in the world, human rights are defined as constitutional matters in which constitutional courts are competent. Despite its unclear constitutional human rights’ mandate,[78] the Senegalese Constitutional Council has used other constitutional means, namely by building on its regulatory and constitutional control powers[79] to adjudicate human rights related cases.[80] Nonetheless, nothing in the Constitution prevents other courts, especially the State Council and Court of Cassation to deal with human rights cases. Thus, these courts may be called on in the process of enforcing the African Court’s judgments or as courts of appeal in case a lower court refuses (or accepts) to grant enforcement ordinance or even assuming the state opposes or delays enforcement. It is worth stressing here that both the Appeal Court and the Court of Cassation of Dakar reversed the judgment of the first instance judge in the Habré case. By doing so, these courts opposed direct application of a convention to which Senegal was party as ascertained by the findings of the first instance judge. Surprisingly, the Constitutional Council was not called on to decide which has precedence between the CAT and the code of criminal procedure. Neither was the Council asked to decide whether the refusal to apply an international convention was in line with the constitution.

 

Another issue is the restricted rules of standing, which does not allow direct individual access. Access to the Constitutional Council is restricted to the executive[81] (the President of the Republic, the Prime Minister[82] and the Minister of Justice), the legislature[83] (the Speaker, the Bureau or at least a tenth of parliamentarians) and the judiciary (State Council and Court of Cassation).[84] No individual – including legal practitioners – can directly submit a case to the Constitutional Council. However, individuals can go through the judiciary to access the Council. Indeed, individuals may invoke the exception of unconstitutionality of law during a proceeding before the Court of Cassation or State Council.[85] These courts must then refer to the Constitutional Council to decide. Besides, all political parties and coalition of parties can access the Council as long as they are duly registered. It is worth noting that the Council has no proprio mutu seizure.

 

All this said, two important questions at this stage are the independence of the judiciary and states’ willingness to obey international law and judgments. In most of African countries, the judiciary is a state power and judges’ training, appointment, and career are directly managed by executives. For instance, very few courts in West Africa have autonomous budgets, including supreme jurisdictions.[86] It is a civil law principle that an ‘effective judgment’ is the one ‘that produces expected effects; that is applied in practice’.[87] Yet, enforcing a foreign judgment on the territory of a state necessarily requires the support of the public force. It is all about creating rights and subsequent effects in the municipal order. This touches upon an intrinsic attribute of states’ sovereignty, which they generally protect jealously. It probably explains why states execute orders only when they are willing to do so, where they have interests. It should be wondered what the reaction of Senegal would be in case a municipal judge grants an enforcement ordinance to a judgement of the African Court against Senegal. Precedent judicial inconsistencies experienced in the Senegalese context teach enough on the issue. Analysing why and how the African Court Protocol should be implemented in African countries, it is important to take into account states’ frontline role with regards to implementation of human rights standards. This goes back to the very first stage of drafting process in which states’ experts and representatives are involved. For instance, the African Court protocol was developed following a consultation that lasted over two years and involved experts and diplomats from Senegal. In Senegal, negotiation and signing of international agreements is a power reserved exclusively to the Head of State. It is not an exaggeration to hold that ‘the Protocol is a compromise … seen as reflecting what is acceptable for drafting states to commit themselves to’.[88] In such circumstances, it is feared that political negotiations and implementation are preferred to legal or judicial procedures as is the case for bilateral agreements.[89] In which case, reception and enforcement would be left to states’ willingness. If so, individuals may not easily have the African Court’s judgments enforced against states and obtain subsequent reparation or compensation.

 

The present report being a prospective study on forthcoming decisions of the African Court, an analysis of existing similar initiatives is relevant for comparative case studies.

6. Overview of the Country’s Membership to Regional Bodies and Procedure for Enforcement of Decisions of Regional Courts

 

Initially ignored by the legislature, conditions for the effectiveness of foreign judgments were organised and set out by jurisprudence.[90] This praetorian work has been completed later by norms, namely regional treaties, most of which in the context of Francophone Africa pursue integration on political, economic (including business) and monetary matters. By setting up conditions for enforcement of foreign judgments, both jurisprudence and norms logically deal with “decisions exempted from exequatur.” The general nature of such decisions is quite relevant to the present case study. Even arbitration sentences are subject to exequatur prior to their enforcement.[91] Both African regional and international judicial bodies can be cited as examples. Among others, the supranational Common Court of Justice and Arbitration based in Abidjan, the International Criminal Tribunal for Rwanda,[92] or the International Court of Justice,[93] are directly enforced in the territories of member states, notwithstanding any anterior or posterior contradictory legislation. This has arguably led to the qualification of such judgments as ‘offshore’ and their courts of origin as ‘federal supreme jurisdictions’.[94] Senegal is member of three relevant regional organizations with judicial bodies. Those are the Economic Community of West African States (ECOWAS),[95] the West African Economic and Monetary Union (in French UEMOA),[96] and the Organization on the Harmonization of Business Law in Africa (OHBLA, in French OHADA).[97]

 

Under the Port-Louis Treaty of 1993 which created OHADA, judgments of the Common Court of Justice and Arbitration (CCJA) are exempted from exequatur in all the states’ parties.[98] As reads Article 20 of the Treaty:

 

The judgments of the Court are final and conclusive; execution and enforcement shall be ensured by Contracting States on their respective territories; in no case may a decision contrary to a judgment of the Court be lawfully executed in a territory of a Contracting State.

 

Further, under Article 41 of the Rules of Procedure of the Common Court, its judgments gain enforceability from the date of their issuing. The judgments carry supranational ‘authority,’ ‘no further domestic procedure being necessary for them to impose themselves with binding force on the territories of States Parties.’[99] Yet, these judgments are enforced subject to the rules of civil procedure in force in the state on the territory of which enforcement is sought. Though such execution is subject to the apposition on the judgment of the “execution formula” (enforcement ordinance) by the “competent national authority,” ‘it is about no more than checking the authenticity of the judgment.’[100] It is right that OHBLA is a particular initiative in itself. Actually, it is a unique harmonisation initiative in Africa and even in the world in terms of creating a ‘unique, modern and relevant business law.’[101] This may explain the precise language of the Treaty, as opposed to the vague formulation of human rights conventions in general. Both the drafting history and the language of the treaty show the unequivocal intention of the drafters to create a “common court,” the judgments of which are placed on the same footing with domestic judgments. Reading from the above provisions, the CCJA’s judgments are even given precedent over domestic judgments. To avoid any domestic impediment to treaty-based adjudications, even arbitral sentences rendered by the Court’s Arbitration Centre are granted exequatur by the President of the CCJA.[102] Then the arbitral sentence can be enforced subject to the “execution formula,” which, though considered as mere formality, cannot be refused in any case.[103] None of the Treaty and the Court’s Rules of Procedure indicates which domestic court is competent to appose the “execution formula.” In any case, first instance and appeal domestic courts are competent to adjudicate the treaty law. Only domestic courts of cassation have been deprived of their competence to the benefit of the common court. Implicitly, lower domestic courts’ judges are competent to appose the required formula in matters covered by the harmonised treaty law.

 

Similarly, at a sub-regional level, judgments of the Community Court of Justice of ECOWAS[104] should receive direct enforcement by domestic courts without any particular procedural measures.[105] Article 76 of the Revised Treaty provides that ‘the decision of the Court – which is final and not subject to appeal – shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies.’ While national courts are competent to enforce ECOWAS Court’s judgments, there is no normative or procedural provision indicating which specific domestic court is meant. With regards to this, the incumbent President of the Court confidently put: ‘We trust that, with these provisions, which are sufficient, we offer all guarantees that decisions of the Court shall be executed.’[106] In a comparative approach, it is worth noting that provisions related to enforcement under ECOWAS are not as strong as those provided by the OHBLA Treaty. At least one explanation can be given for this. While CCJA settles private disputes, the West African Court’s judgments may seek enforcement against states, especially in the perspective of the recent extension of the Court’s mandate to human rights matters. During recent sensitization visits in Senegal, the President acknowledged difficulties related to enforcement by declaring that ‘the Court is working in close harmony with national jurisdictions for the implementation of its decisions.’[107] The language of enforcement procedures under OHBLA seems to be more imperative, but very recent case law developments, namely related to the human rights mandate of ECOWAS Court of Justice, open new avenues.[108]

 

Established as a judicial organ of an economic and monetary community, the Court of Justice of UEMOA is dedicated to adjudication and interpretation of community law for a jurisprudential harmonisation within the community. Under Article 57 of Rule No. 01/96/CM of the Union, ‘the decisions of the court have mandatory force from the date of their pronouncements.’[109] As under OHBLA, execution is subject to municipal civil procedure limited to verification of authenticity of the judgment. Verification is assigned to a ‘national authority to be designated by Government.’[110]

 

To conclude on this overview of regional experiences, foreign judgments as issued by treaty bodies (international judgments) receive direct municipal enforcement notwithstanding exequatur, which applies only to foreign national judgments. Exception is made for arbitration decisions enforceable subject to exequatur by the supranational courts or municipal judge. Even though there may be slight differences , primarily with regard to the wordings of these regional norms and the subject matter of the considered treaty and judicial bodies, the African Court’s judgements are doubtless foreign international judgments. They should thus receive direct enforcement, at the most upon “execution formula” aimed to the sole verification of their authenticity. However, reading both the African Charter and the Court Protocol and referring to experiences of the African system, the forthcoming judgments will mostly seek enforcement against States Parties. The standing issue is therefore whether and to what extent the African Court’s judgments will fit into the existing enforcement framework and procedures, keeping an eye on national and regional experiences in the Senegalese context.

 

Part II: The African System

 

7. The African Charter on Human and Peoples’ Rights

Senegal ratified the ACHPR on 13 August 1982. The domestic effect of the ratification of international human rights treaties has been discussed infra.

 

7.1 The Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights

 

Senegal ratified the Court’s Protocol on 29 September 1998 but is yet to make the required declaration recognising the competence of the Court to receive individual complaints. Nonetheless, both Francophone Africa practitioners (including judges) and scholars recognise a convergence between dualism and monism on the reception and direct applicability of IHRL in the municipal order.[111] The African Court’s Protocol is meant to implement African Charter rights, which are expressly recognised by the Constitution of Senegal. As any other country of French law tradition, Senegal recognises the constitutional value of IHRL norms.[112] Yet, there remain real concerns regarding these norms. First, IHRL seems to be ‘sick of their norms.’[113] They impose equivocal obligations on states and do not provide for enforcement rules that are precise enough to avoid practical difficulties. Considering that community law, namely regional, economic, and political experiences, provide for more imperative implementation language, commentators have proposed to work towards a community human rights law.[114] It is suggested that African human rights law is community human rights law by nature. Second, the issue is the enforcement of judgments against states. The African Court’s Protocol clearly indicates that states shall comply with the judgments of the Court and guarantee their execution.[115] State parties, therefore, are implicitly given discretion not only to set up the procedure but also to designate the body in charge of implementation. Major problems stem from here. Provision on a declaration of competence and absence of provision on both the procedure and competent enforcement body appear as purposive accommodations which states granted them. Moreover, the clarity of states’ obligation to comply with and guarantee execution is questionable. It may lead to divergent national ways of implementing judgments. Demonstrably, states seem to have given themselves sufficient margin to recover from the absence of provisions on reservations. As duty bearers, should states be given completes discretion to guarantee execution of judgments? While the African Court’s judgments have binding effect in Senegal, can their enforcement be ensured?

 

French practice distinguishes between the “force obligatoire” and the “force exécutoire” of international foreign judgments.[116]

 

For instance, judgments of the European Communities’ Court of Justice carry both forces on the territories of States Parties, and judgments against private persons are enforced without exequatur. In comparison, authority and direct enforcement of the European Human Rights Court’s judgments seem to be more problematic. Indeed, Contracting Parties ‘undertake to abide’ by the final judgments of the Court with “force obligatoire.[117] The difficulty resides in the fact that municipal judgments deemed contrary can neither be annulled nor revised by the European Human Rights Court. Hence, the Court’s judgments lack “force exécutoire.” Hence, it is up to states to undertake necessary measures to ensure appropriate reparation for victims and avoid future similar violations. However, such obligation of means does not absolve states from concrete results, and delayed execution is subjected to the control of the Court. Furthermore, even though judgments oblige only litigants, the Court has heard that it has competence to go beyond and ‘clarify, safeguard and develop conventional norms.’[118] This pronouncement of the Court has been qualified in doctrine as an “interpretative authority.” Subsequently, the Court considered that states should harmonise their legislation with its jurisprudence without waiting to be called in an eventual dispute.[119]

 

Both the African Charter and the Court’s Protocol fulfil the conditions for direct enforcement of the African Court’s judgments in Senegal. While a framework exists, its relevance and effectiveness to this case study are questionable particularly considering that judgments will be enforced against states. Besides, the existing procedure and institutional framework do not seem to have been designed for IHRL adjudications to fit in. Considering all this, it is advisable to take the Senegalese state as a serious stakeholder in the implementation of the African Court’s judgments. Other political, administrative, and civil society bodies would be very important stakeholders as well to achieve a comprehensive and effective implementation of the African Court Protocol in Senegal. Hence, it is useful to undertake an overview of these institutions by pointing out in which way they will contribute to the project. The following seem to be the most relevant:

 

The Presidency: The Legal Cabinet and the Secretary General of the Government

These two governmental agencies deal with the preparatory work on the ground as far as the drafting of national legislation is concerned. They act as legal advisors to the President of the Republic, the Prime Minister, and the government in general. The Secretary General of the government will undoubtedly play a key role in the enforcement of the judgments of the African Human Rights Court. This is because, with the Ministers of Foreign Affairs and of Justice, and the Judicial Agent of the State, the Secretary General forms the executive arm of the enforcement of international decisions against Senegal.[120]

 

The Prime Minister and the Government

The Prime Minister is the chief of the government, who implements the policies of the government and ensures the enforcement of laws.[121] These attributions vest in the Prime Minister of Senegal the very executive power involving the coordination of government functioning. Thus, the Prime Minister will play an important part in any domestic enforcement procedure, especially for judgments in favour of individuals against the state.

 

The Ministry of Justice

In charge of the judiciary, administration of justice, and judges’ offices, the Minister of Justice should assess and introduce to the government any documents (civil and criminal procedure codes, rules of procedure, procedural codes and others used by the judicial administration) inconsistent with the African Human Rights Court Protocol.

 

The Judicial Agent of the State

Acting under the authority of the Minister of Finance, this Agent plays a key role in the material enforcement of foreign or international judgments. He or she is the legal representative of the state in judicial proceedings and is in charge of reparations – chiefly payment of monetary compensation.

 

The Judiciary

The judiciary is the monitoring body in charge of verifying the constitutionality of legislation (the Constitutional Council in Senegal). Further, high courts may be called to decide on cases of refusal of enforcement ordinance or execution formula to be apposed on judgments of the African Human Rights Court. An issue here is whether the Senegalese Constitutional Council, which lacks proprio mutu power, can launch a procedure in case of delayed implementation due to the state, for example. The African Court Protocol is clear on the law that parties to a case shall be notified the subsequent judgment. Yet, States Parties are guarantors of their compliance with the judgments in any case to which they are parties. Implicitly, once individual parties to a case are notified of the Court’s judgment, they will first need a minimum of execution ordinance to have it enforced. In this case, the Constitutional Council, the Council of State, and the Court of Cassation may have a particular role. Individuals may complain of the refusal of ordinance, ad vitam eternam delay of payment by the state or any other, as a breach of both the African Charter and Court Protocol. Besides, in case of refusal, judges render an ordinance of refusal, which can be challenge for unconstitutionality in a proceeding before the State Council and Court of Cassation. The Constitutional Council will then be called to decide the case.

 

The Legislature (the National Assembly)

It gives the authorization of publication,[122] but shall also enact all legislation for the purpose of ensuring compliance of the domestic order with the African Court Protocol.[123] Moreover, the National Assembly is a key institution in the process of giving effect to orders and decisions of international judicial bodies. Indeed, Parliament holds the major legislative power and as such will be the cornerstone of any legislative reform aiming at repealing a particular law or passing new legislation in order to facilitate the enforcement of foreign judgments.

 

The involvement of other institutions than those described above, such as the Senegalese Human Rights Committee and the Women’s National Consultative Council,[124] will be useful in enforcing the African Court’s Protocol. Because the African Court’s judgments will mostly seek enforcement against states, particular civil society involvement is necessary at all stages. Amicable settlement cases in Senegal[125] and elsewhere[126] have proved to be to the disadvantage of victims. At the end of the day, victims receive what states offer and get it whenever governments decide to pay.

Part III: Conclusions and Recommendations

8. Conclusions

 

Under the African Charter and the African Court Protocol, the African Court does not expressly have the power to ensure the enforcement of its judgments[127] apart from reporting to the AU Assembly the cases in which states have not complied with judgments.[128] Implicitly, the task of enforcement is left to State Parties. In Senegal, the African Court’s judgments are international foreign judgments to which the existing procedure, the exequatur, is not relevant. Actually, the African Court’s judgements gain status of municipal judgments by virtue of the direct applicability of the Protocol in the Senegalese domestic order. As municipal judgments, they will thus need at last a municipal ordinance to be enforced, this being only a formality, refusal of which may be considered as a breach of the considered conventions. The standing issue is whether a state will generously help in enforcing judgments against itself. This leads to suggest that political unwillingness would be a major constraint in the implementation and achievement of the required adaptations at both national and continental levels.

 

At the continental level, both the Assembly of Heads of State and Government and the African Union Executive Council should play a key role in providing for legislation and institutions at the national level. This is because, firstly, any decision of the Court shall be transferred to the state parties.[129] Further, as far as the Executive Council is concerned, it shall not only be notified of the decision, but also monitor the latter’s execution on behalf of the Assembly.[130]

 

The AU Assembly can ensure the integrity of the AU and the African human rights system by adopting political measures deemed necessary for the enforcement of the decisions of the Court.

9. Recommendations

 

In order for the African Court’s Protocol to meet efficient enforcement in Senegal, the state and other stakeholders will have to work together in order to:

 

  • Pass a law organising and defining the procedure for enforcement of international judgments. It must consider the irrelevance of exequatur and the shortcomings of the municipal judge holding exclusive power to grant or refuse enforcement visas, which may not be efficient in ensuring effective human rights justice and timely remedies. Therefore, any measure shall provide for a shorter time and quicker procedure for enforcement;
  • Amend the Constitution and/or establish a new Constitutional Court and provide easier individual access to the constitutional institution. This would give individuals a more effective remedy in case of breach of the eventual law organising enforcement or even to challenge the refusal of enforcement ordinance or unduly delayed payment;
  • Provide for special funds devoted to monetary aspects related to the enforcement of international judgments (legal assistance, procedure fees and monetary compensation);
  • Set up an independent body in charge of the implementation and monitoring of enforcement. The independence of the judiciary and the general unwillingness of states to obey unfavourable decisions shall be borne in mind. The ad hoc body should be composed of members of the judiciary, government officials and representatives of national human rights organizations; and
  • Raise awareness among all stakeholders, especially the judiciary and executive, and ensure a strong civil society mobilisation and permanent involvement in various processes.

 

As a matter of urgency, making the necessary declaration on the African Court’s competence would be the starting point to show Senegal’s good faith to fulfil its commitments under both the African Charter and the African Court Protocol.

 



[1]            Senegal is divided into 11 administrative regions, each headed by a governor appointed by and responsible to the President of the Republic. The law on decentralization, which came into effect in January 1997, gave significant central government authority to regional assemblies.

[2]            As adopted on 22 January 2001 and amended in 2003, 2006 and 2007. For the Constitution including the five subsequent amendments, see Constitution de la République du Sénégal du 22 Janvier 2001 available at http://www.gouv.sn/textes/Constitution_sn.pdf (accessed 25 September 2007).

[3]            Article 1 of the Constitution.

[4]            Article 6 of the Constitution.

[5]            Preamble and article 92 of the Constitution.

[6]            Article 53 of the Constitution.

[7]            Namely in case of treason, article 100 and 101 of the Constitution. The High Court of Justice amongst others presides over impeachments proceedings.

[8]            The Conseil Supérieur de la Magistrature (in French), the equivalent of the National Judicial Council in most of common law countries.

[9]            Cases are essentially subject to French law and reference document is the French Civil Napoléon Code of 1804.

[10]          E.g. polygamy is still permitted up to four wives, husband is head of family and choice of residence lies with him. Whichever parents have child custody, the father remains guardian unless he is unable to fulfil the role. Succession is governed by Muslim succession section of the Family Code.

[11]          The parliament of Senegal was unicameral before 1999 and from 2001 to 2007. The return to bicameralism since May 2007 is organized in the National Assembly as the lower house and the Senate as the upper house of the Parliament. The 100 Senate seats include 65 appointed by the President and 35 elected by about 12, 000 deputies and local councillors.

[12]           The Official Gazette, article 66 of the Constitution.

[13]           Relations between domestic and international legal orders are discussed later in the paper.

[14]           Main legislative sources include codes, the Official Gazette and web sources such as Natlex Senegal (for labour, social security and human rights related), Global Legal Monitor Senegal (for new laws passed), and World Legal Information Institute. Two mains links lead to further relevant and more detailed information: http://www.loc.gov/law/help/guide/nations/senegal.php (accessed on 26 January 2009) and http://www.loc.gov/lawweb/servlet/lloc_news?browse_country_Senegal (accessed on 29 January 2009).

[15]           Site officiel du Gouvernement du Sénégal. It is also of first interest visiting this document.

[16] For further information on the Moot Court Competition and in general, it is worth visiting the website of the Centre for Human Rights at the University of Pretoria.

[17]           Accessible here.

[18]          Accessible here.

[19]           Association Africaine des Hautes Juridictions Francophones (in French), with headquarters in Cotonou (Benin).

[22]           Para.7.

[23]           Paras.14 and 15.

[24]           See concluding para 18. Such provision is of great importance as it gives constitutional value to the Preamble, thus to the provisions of the treaties therein referred to.

[25]           For an overview of the situation, see ‘Universal Human Rights Index of United Nations Documents’ accessed 25 September 2007).

[26]           By Arrêté présidentiel No.5691 of 6 July 2004. See International Labour Organisation ‘Senegal Human Rights’ accessed 26 September 2007).

[27]           The incumbent Minister High Commissioner is Ms Mame Bassine Niang.

[28]          Article 3 of the Arrêté.

[29]           Article 5 of the Arrêté.

[30]          Décret No 70-453 of 22 April 1970 establishing a Comité sénégalais des droits de l'homme.

[31]           Décret No 90-003 of 8 January 1990.

[32]           Loi No 97-04 of 10 March 1997.

[33]           Loi No 99-04 of 29 January 1999.

[34]           Created by Decree 97-674 of 2 July 1997.

[35]           See O Thosa National Law and International Human Rights Law. Cases of Botswana, Namibia and Zimbabwe Law Social Change and Development Series (2001) 3.

[36]           The medium of publication in Senegal is the official gazette.

[37]           See J Dugard International law A South African perspective (2005) 47.

[38]          In any case, Senegal has accepted the primacy of international human rights standards over national legislation. See para 10 of the Human Rights Committee’s Concluding Observations CCPR/C/79/Add.82 of 19 November 1997 on Senegal’s report (accessed 27 September 2007).

[39]           Suleymane Guengueng and Others v Hissène Habré (2002) AHRLR 183 (SeCC 2001).

[40]          V Leary International Labour Conventions and National Law (1982) in MCR Craven ‘Domestic Application of the International Covenant on Economic, Social and Cultural Rights’ Netherlands International Law Journal (1993).

[41]           These rights are settled as justiciable on the basis of the Constitution and jurisprudence even though the country is yet to ratify the ICESCR. See F Viljoen ‘The Justiciability of Socio-economic and Cultural Rights: Experience and Problems’ (Unpublished paper on file with the author) 15.

[42]           See B Codjovi ‘Communication de la Cour Suprême du Bénin’ in Association Africaine des Hautes Juridictions Francophones (Ed) Les actes du colloque international sur l’application du droit international dans l’ordre juridique interne des Etats africains francophones Ouagadougou (2003) 147.

[43]           The same organisation has been adopted by Craven (n 40 above) 382-394 and CM Vazquez ‘The Four Doctrines of Self Executing Treaties’ The American Journal of International Law Vol. 89 No 4 (1995) 711.

[44]           See preambular paragraph 8 of the Court Protocol.

[45]           In the paper they presented during the colloquium, the Senegalese judges themselves referred to only two cases: Sega Seck Fall case of 29 January 1975 decided by the then Supreme Court of Senegal and the Habré case of 20 March 2001 decided by the Court of Cassation.

[46]           See Association Africaine Communication de la Cour de Cassation et du Conseil d’Etat du Sénégal (n 42 above) 290-291.

[47]           See n 18 above.

[48]          Namely through recognition erga omnes, judicial practice and treaty bodies referencing.

[49]           Para 9 of the Preamble.

[50]          Article 7 of the Constitution.

[51]           See BC Mbaye ‘The Hows and Whys of Promoting the entry into force of the Protocol to the ACHPR on the Establishment of an ACtHPR’ (Unpublished paper on file with the author) 10. Annexed to this report are samples of contents of Authorisation Act, Decree of Publication and Letter of Ratification.

[52]           In Senegal, the Constitutional Council is vested in such mission. Under article 92 of the Constitution, ‘The Constitutional Court shall decide on the constitutionality of laws and international engagements …’.

[53]           As provided under article 97 on inconsistencies between international law and the Constitution.

[54]           Two constitutional provisions are relevant to human rights treaties. First, article 96 provides that ‘treaties … which concern the status of persons … shall be ratified or approved only by virtue of a law’. Second, the legislative prerogatives of the Parliament and subsequent procedure are set down under article 74(2) of the Constitution that reads ‘the Constitutional Court may be seated for the purpose of having a law declared unconstitutional … by a number of Deputies at least equal to a tenth of the members of the National Assembly …’.

[55]           On the difference between ‘domestic validity’ and ‘domestic applicability’, see in general Craven (n 40 above).

[56]           As developed in the Habré case for non self executing status and in the Sega Seck Fall case for lack of publication among other reasons. See n 45 above.

[57]           E.g for lack of publication in Decision DCC 03-009 of 19 February 2003.

[58]          In Attorney-General of Botswana v Unity Dow (1992) L.C.R. (Const.) 623.

[59]           In New Patriotic Party v Inspector General of Police, Accra (1993) NLPR 73.

[60]          See Rono v Rono (2005) AHRLR (KeCA 2005).

[62]           For a full report on the case, see Comité Sénégalais des Droits de l’Homme ‘Rapport Annuel du Comité Sénégalais des Droits de l’Homme’ (2001) 32-34.

[63]           See para. 13 of CESCR Concluding Observations E/C.12/1/Add.62 of 24 September 2001 on Senegal’s Report (accessed 26 September 2007).

[64]           Loi No 96-15 of 28 August 1996. See para. 8 of Human Rights Committee’s Concluding Observations CCPR/C/79/Add.82 of 19 November 1997 on Senegal’s report (accessed 26 September 2007).

[65]           For a comprehensive overview of human rights and constitutional Senegalese case law, see Association des Cours et Conseils Constitutionnels des Pays ayant en partage l’Usage de la Langue Française ACCPUF ‘Jurisprudence nationale’ (accessed 4 October 2007).

[66]           Point 3 of the final considérants.

[67]           Decision 11-93 of 23 June 1993.

[68]          Para 13.

[69]           In-country expert for Senegal, Mr Kane, ascertained that Senegalese case law on the application of international human rights law is very poor (consultation through harmonisation yahoo group, email of 15 October 2007).

[70]          Para 18.

[71]           This case was reported to us by the in-country expert Mr Kane (consultation through harmonisation yahoo-groups, email of 15 October 2007).

[72]           Referred to under sub-section 1.2. See n 45 above.

[73]           In 1992, the Supreme Court of Senegal was dissolved and its competencies shared between the new Constitutional council, Council of state and Court of cassation.

[74]           AM Kutnjem ‘Le droit à la justice au Cameroun: A l’origine de l’accélération de la modernisation du code pénal camerounais’ Mémoire Online (accessed 26 April 2007).

[75]           Article 789 of the Code of Civil Procedure of Senegal. For other details on the procedure of exequatur see Livre V of the Code of Civil Procedure of Senegal articles 787-794 ‘Execution of Foreign Acts and Decisions’.

[76]           Article 787 of the Code of Civil Procedure.

[77]           Further details are provided on this under section 6.

[78]          Human rights are not the subject matter of the Council, which has no express constitutional competence in judicial human rights protection.

[79]           See articles 74, 92 and 96 of the Senegalese Constitution of 2001.

[80]          See for instance, Decisions 15-94 of July 1994 and 11-93 of 23 June 1993. For a comprehensive overview of human rights and constitutional Senegalese case law, see Association des Cours et Conseils Constitutionnels des Pays ayant en partage l’Usage de la Langue Francaise ACCPUF ‘Jurisprudence nationale’ available at http://www.accpuf.org/ images/pdf/cm/senegal/051-jc-principe_ega.pdf (accessed on 11 October 2007).

[81]          Article 74 of the Constitution.

[82]          Article 76.

[83]          Article 74.

[84]          In case of an exception of unconstitutionality invoked by a litigant before these courts.

[85]          By virtue of article 96 of the Constitution.

[86]          Are so called such courts, which decisions are final and not subject to appeal.

[87]          G Cornu (Ed) Vocabulaire Juridique France PUF (1996) 334.

[88]          Mbaye (n 51 above) 9.

[89]          See Mbaye as above 11.

[90]          See Kutnjem (n 74 above).

[91]           As provided by the 1959 Hague Convention on foreign arbitral sentences.

[92]           See article 26 of the Statute of the International Criminal Tribunal for Rwanda.

[93]           As under chapter 7 of the United Nations Charter.

[94]           See PG Pougoue OHADA, instrument d'intégration juridique’ Revue Africaine des Sciences Juridiques Vol 2 No 2 (2001) 11.

[95]           Community Court of Justice with seat in Abuja (Nigeria), 15 members.            

[96]           Court of Justice of UEMOA with seat in Ouagadougou (Burkina Faso), 8 members.

[97]           Court of Justice et Arbitration of OHBLA with seat in Abidjan (Cote d’Ivoire), 16 members.

[98]          See J Mbosso ‘The role of national jurisdictions and harmonized law’ International Business Law Journal European Communication Forum No 2 (2002) 216.

[99]           See B Martor et al. Le Droit Uniforme Africain des Affaires issu de l’OHADA Juris-Classeur (Ed) (2004) 15. However, articles 47, 48 and 49 of the Court’s Rules of Procedures provide for three extraordinary appeals: the opposition of third parties, which rights the judgments are deemed to infringe, an action in revision in case of new facts and the request for interpretation of a judgment.

[100]        As reads article 46 of the CCJA’s Rules of Procedure. See Martor as above.

[101]         See K Mbaye ‘L’histoire et les objectifs de l’OHADA’ in Petites Affiches Le Quotidien Juridique No 205 (2004) 4-5.

[102]         As provided by articles 30(2) and 30(6) of the Court’s Rules of Procedure.

[103]         Article 31 of the Rules of Procedure. See Martor (n 99 above) 273.

[104]         The Economic Community of West African States, which comprises 15 member states. In 2006, the jurisdiction of the Court has recently been extended to human rights violations hearings and the inclusion of the rights provided under the African Charter is underway (see article 9 of the revised Supplementary Protocol of the Community Court). After this, individuals from the community may also bring complaints before the Court. For comprehensive details see Panapress Dix Plaintes déposées devant la Cour de Justice de la CEDEAO (accessed 4 October 2007).

[105]         Article 76(c) of the Revised Treaty. See ECOWAS ‘Community Court of Justice’ (accessed 4 October 2007).

[106]         See Ministère des Maliens de l’Extérieur et de l’Intégration Africaine ‘Campagne de Sensibilisation : La Cour de Justice de la CEDEAO au Mali September 2005 (accessed 11 February 2008).

[107]         See Panapress (n 104 above) Para 4.

[108]        In October 2008, the Community Court of Justice decided a landmark slavery case known as the Hadidjatou Jugement of the name of a Niger 24 years old woman sold in slavery while aged 12 and used for labor and sex by her owner for over ten years. Niger was fined by the ECOWAS Court of Justice the equivalent of $24,000 for failing to protect the woman. Spokesperson of the Government publicly declared that Niger will respect the judgment.

[109]         See also article 20 of the Treaty.

[110]         Article 46(2) of the Union Treaty.

[111]         Namely since the United States Supreme Court decision of 1989 on the Palestinian case. See R Dossou ‘L’application des conventions relatives aux Droits Humains par le juge national’ in Association Africaine (n 42 above) 124.

[112]         From the jurisprudence of the French Court of Cassation Dame Pauline case of 2 June 2000 RGDIP-2000/3 at 810-824 and State Council Assemblée du Contentieux Sarran case of 30 October 1998-Rec at 368.

[113]         AS Sidibé in Association Africaine (n 42 above) 67.

[114]         See Sidibé as above.

[115]         Article 30 of the African Court’s Protocol.

[116]         According to the French Court of Cassation. See Association des Hautes Juridictions de Cassation des Pays ayant en partage l’Usage du Français ‘Les Conventions et la Jurisprudence devant le Juge National’ available at http://www.ahjucaf.org/-b-Quelle-est-l-autorite-des (accessed 12 February 2008).

[117]         See article 46 of the European Human Rights Convention.

[118]         See Ireland v United Kingdom 18 January 1978.

[119]         See Modinos v Cyprus 22 April 1993.

[120]         For instance, by activating amicable settlement procedures as in the Famara Koné case above referred to.

[121]         Article 52(2) of the Constitution.

[122]         Article 88 of the Constitution.

[123]         Articles 67 and 80 of the Constitution.

[124]         See Senegal Ministère de la Femme, de la Famille et du Développement Social ‘Rapport National sur la Mise en Œuvre de la Déclaration Solennelle des Chefs d’Etats et de Gouvernement sur l’Egalité entre l’Homme et la Femme en Afrique’ (2006) 2.

[125]         To our knowledge, Senegal is yet to pay damages as agreed on under amicable settlement procedure in the Famara Koné case. The victim has been waiting reparations for more than a decade now.

[126]         For instance in Benin Constitutional Court Favi case DCC 02-058 of 4 June 2002. Three years after the Constitutional Court’s judgment, the state decided to pay the monetary damages but not about 2000 Euros interest order by the same Court.

[127]         Amnesty International La Cour Africaine des Droits de l’Homme et des Peuples: Une occasion de renforcer la protection des droits humains en Afrique’ London July 2002 Online Archives (accessed 28 April 2007).

[128]         Article 30 of the Court Protocol.

[129]         Article 29(1) of the Court Protocol.

[130]         Article 29(2) of the Court Protocol.