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UPDATE: An Introduction to the Legal System and Legal Research in Chad

By Nadjita F. Ngarhodjim

Nadjita F. Ngarhodjim holds an LLB (University of N'Djamena), and LLM (University of Pretoria).  Nadjita worked as a Legal Officer at the African Commission on Human and Peoples' Rights. He currently is working as an Associate Political Affairs Expert with the United Nations Office for West Africa (UNOWA).

Published January 2012
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Table of Contents

Introduction: Historical Background

The Constitutional Framework

The law Making Process

Sources of Law

The Constitution

International Treaties

Acts of Parliaments

Acts of the Executive Branch: Rules and Regulations

Ordinances

Customary Law

Main Legislation

The Judiciary System

Legal Education and Legal Research

Some Websites Relevant to Legal Research

 

Introduction: Historical Background

The landlocked state of Chad is situated at the junction of Central, North East and West Africa. The colony of Chad became a Republic on 28th November 1958 within the French Community established by the Constitution of 4th October 1958 inaugurating the French Fifth Republic.

On 11th August 1960, the Republic of Chad became an independent State under François Tombalbaye, its first President. A new Constitution came into force on 28th November 1960. The political and legal system established by this new constitution, like those of many other former French colonies in Africa, was very similar to the French Fifth Republic. The main differences with the French system were that all the executive power is concentrated in the hand of the President, that the Parliament comprised only one House, the National Assembly, and that there was no Constitutional Council. The 1960 Constitution was repealed by the Constitution of 16th April 1962, which established one-party system.

On 13 April 1975, President Tombalbaye was killed in a military coup perpetrated by a group of army officers. On 15th April 1975, a High Military Council, chaired by General Felix Malloum, and a Provisional Government were established. The 1962 Constitution was suspended. The coup inaugurated a period of political instability in Chad. Very soon, the new military regime had to face armed rebellions, especially in the northern part of the country. A series of talks led to the formation of a Transitional Government of National Unity (Gouvernement d'union nationale de transition - GUNT) under the leadership of Goukouni Weddei, a former rebel leader, supported by Libya. The formation of the new government did not succeed in bringing the situation to normalcy as the country was divided into several regions controlled by armed factions. Furthermore, the relationship between Goukouni Weddei and his Prime Minister, Hissein Habré, himself a former rebel leader, was tense. The Libyan troops supporting Goukouni Weddei left N'Djamena in 1981, and a year later, in 1982, Goukouni was overthrown by Hissein Habré, who set up an authoritarian regime where fundamental rights and freedoms were suspended.

In 1990, Hissein Habré was toppled by his former right-hand man and Chief of Defense Staff, Idriss Déby. The new President proclaimed a democratic regime with the restoration of civic rights and freedoms. In 1993, an inclusive National Conference was held, which inaugurated a transitional period culminating in the adoption a new Constitution and the holding of general elections. There has been, since then, four presidential elections (1996, 2001, 2006, and 2011), all held under poor conditions of transparency. The 2006 election, organized during a period where the regime was faced with armed rebellion in the north and the east, was boycotted by major opposition parties.

Under the pressure of the international community (especially France, the European Union, and the United States of America), the regime initiated dialogue with the political opposition, and with the armed groups. An agreement was entered into with the political opposition on 13 August 2007 to work together on the framework for fairer and freer elections. At the last moment, the major opposition leaders and parties once again boycotted the 2011 presidential elections, claiming that conditions were not met for a free and fair poll and that the 13 August 2007 Agreement had not been fully implemented prior to the election.

Since the adoption of the 1996 Constitution, three legislative elections were organized, in 1997, 2002 and 2011.

The Constitutional Framework

The current Constitution of Chad was adopted by referendum on 31st March 1996. It was amended by the Constitutional Act 08/PR/2005 of 15th July 2005. The Amendment abolished the Senate, one of the two Houses of the Parliament, established an Economic, social and cultural council, and removed the limitation of presidential terms in office, allowing President Déby to run for a third term in 2006 and a fourth term in 2011.

In terms of the 1996 Constitution Chad is a Republic founded on the principles of democracy, the rule of law and justice. The separation of powers is entrenched in the Constitution, which established an Executive made up of a President elected directed by the people for a renewable five-years term, and a Government led by a Prime Minister appointed by the President. The Government is responsible before the Parliament comprising a single House, the National Assembly. The National Assembly can pass a vote of no confidence, obliging the Government to resign. The President has the power to dissolve the National Assembly in the situation of persistent conflicts between the Executive and the Legislative or when, twice in a year time, the National Assembly has dismissed the Government. The Judiciary is independent from the Executive and the Legislative branches of power. It includes the Supreme Court, the Courts of Appeal, the Tribunals and the Justice of the Peace.

Other institutions include the Constitutional Council, the Economic, Social and Cultural Council, the High Council of Communication and local institutions (regions, departments, communes and rural communities with their own legislative and executive branches).

The Law Making Process

Passing laws in Chad is not the monopoly of the Parliament. Such power belongs concurrently to the Parliament and the Executive Branch. There is a reserved legislative domain defined by the Constitution (Article 121). All other matters that have not been expressly identified to be within the ambit of the reserved legislative domain fall under the executive domain. Existing legislation on matters belonging to the executive domain can be modified by a decree taken after consultation of the Administrative Chamber of the Supreme Court. Any subsequent intervention of the Parliament in the executive domain shall be established by the Constitutional Council before its eventual modification by decree.

During the discussion of a Bill, if the Government is of the view that a proposal or an amendment falls outside the reserved legislative domain, it can draw the attention of the Parliament by raising the inadmissibility (irrecevabilité) of such a proposal or amendment. In case of disagreement between the Parliament and the Government, either party can defer the matter to the Constitutional Council that shall take a decision within eight days (Article 132 of the Constitution).

Sources of Law

Sources of law in Chad include the Constitution, international treaties ratified by Chad, Acts of Parliament, Regulations, ordinances, and customary law.

 

The Constitution

The Constitution is the supreme law of the land. All the other sources of law shall be in conformity with its provisions. The Constitution was adopted by referendum and shall be amended by referendum or by the National Assembly through a 3/5 majority vote.

 

International Treaties

Chad is a Civil Law Country. International treaties are dealt with under Title XIV (Articles 217 to 221) of the Chadian Constitution. International treaties are negotiated and ratified by the President of the Republic. Some treaties shall necessarily be ratified, and their ratification requires the authorization of the Parliament. These include peace treaties, defense treaties, trade treaties, treaties relating to the use of the national territory or the exploitation of natural resources, agreements relating to the international organization, treaties involving state finances, and treaties relating to the status of persons.

Treaties involving the transfer, the exchange, and the addition of territory need the consent of the people to be expressed by means of referendum.

Other treaties are negotiated by the Government. The President of the Republic shall be informed of such negotiations.

International treaties and agreements shall be compatible with the Constitution. If the Constitutional Council, at the request of the President of the Republic or the Speaker of the National Assembly, finds that a provision of a treaty is not compatible with the Constitution, such a treaty cannot be ratified unless the Constitution is amended. Once a treaty is lawfully ratified and published, it has an authority that is superior to national legislation.

Acts of Parliaments

Acts of Parliaments in Chad are passed by the National Assembly. Such Acts may originate from the Government (projet de loi) or from a Member of the National Assembly (proposition de loi). Once a bill is passed, it is sent on to the Government and signed into law by the President of the Republic within 15 days (8 days in case of emergency). During these 15 days, the President can send the bill back to the National Assembly for more deliberation. 

The Constitution identifies a domain where the Parliament can intervene by means of legislation. Within this domain, there is a distinction between matters for which the Parliament sets the rules and those for which it only determines the fundamental principles that need to be subsequently complemented by rules and regulations to be taken by the Executive Branch.

The Parliament can pass laws to regulate civic rights and fundamental guarantees for the exercise of public freedoms, taxation, citizenship, the status and the capacity of persons, matrimonial regimes, inheritance and liberal gifts, the determination of criminal offences and applicable sentences, criminal proceedings, amnesty, the establishment of new courts, the status of judges, etc.

The Parliament determines the fundamental principles of the administrative organization of the territory, the organization of national defense, the autonomy of local institutions, public health, social affairs and child rights, private properties, the protection of the environment and the conservation of natural resources, labor law, public estate, etc.  

Acts of the Executive Branch: Rules and Regulations

The Executive intervenes in the law making process principally by regulating matters within the executive domain, and secondarily by taking measures to complement the matters for which the Parliament has determined the fundamental principles.

Both the President of the Republic and the Prime Minister has statutory power. The President signs all the decrees deliberated by the Council of Minister. Such decrees are countersigned by the Prime Minister. The President also signs other decrees. The Council of Ministers shall determine, within the executive domain, matters on which the Prime Minister exerts his statutory power.

Ordinances

The Government may, for the implementation of its program, request the National Assembly to allow it to legislate, by ordinance, on matters that are normally within the scope of the reserved legislative domain. Such an authorization is time-bound, and the Government shall table all the ordinances that it has passed during the authorized period before the National Assembly when the latter is sitting. Failing to do so makes the ordinances null and void. Ordinances are passed by the Council of Ministers, which shall request for the opinion of the Administrative Chamber of the Supreme Court.[[1]]

 

Customary Law

Customary and traditional rules are applicable in communities where they are recognized, provided that they are not in conflict with the law. Customary and traditional rules promoting inequality between citizens are prohibited, and those governing matrimonial regimes and inheritance require the consent of the parties concerned.[[2]]

 

Main Legislation

Upon its accession to international sovereignty, the Republic of Chad chose to maintain colonial pieces of legislation, until such a time that they are replaced by national laws. The most important such a colonial piece of legislation is the Civil Code. Chad is still using the 1958 edition of the French Civil Code. In 1999, the government drafted a Persons and Family Code (Code des personnes et de la famille) which is yet to be validated and passed into law by the Parliament to replace the Civil Code.

Other important pieces of legislation include: the Labor Code (Act n° 038/PR/96 of 11th December 1996), the Penal Code and the Penal Procedure Code (Ordinance n°12 ET 13/PR/MJ of 9th June 1967), the Political Parties Charter (Act n° 45/PR of 1994), Ordinance n° 27 of 28th July 1962 Regulating Associations, the Press Regulation (Ordinance n° 005/PR/2008 of 26th February 2008), the Investment Charter (Act n°006/PR/2008 of 3rd January 2008) the Mining Code (Act n°011/PR/95 of 20th June 1995), the Anti-Corruption Act (Act n°044/PR/2000 of 16th February 2000), the Electoral Code (Act n°003/PR/99 of 7 January 2009), the Law on the Fight against HIV/AIDS/STD and the Protection of the Rights of the People Living with HIV/AIDS (Act n°019/PR/2007 of 15 November 2007) the Copyright Protection Law (Act n°005/PR/2003 of 2nd May 2003), the Petroleum Revenue Management Act (Act n°001/PR/1999 of 11 January 1999), the Judiciary Status Act (Ordinance n°008/PR/MJ/91 of 3rd August 1991).

The Judiciary System

The judiciary is independent from the Executive and the Legislature. Judges remain in function on a permanent basis, and they are only subject to the law in the exercise of their function. The judiciary comprises the Supreme Court, Courts of Appeal, Tribunals and the Justices of the Peace.  The administration of the judiciary (including the appointment, promotion, discipline and responsibility of judges, etc.) is the responsibility of the High Council of the Judiciary (HCJ). The HCJ proposes Judges to the President for appointment and promotion. The Council is chaired by the President of the Republic, with the Minister of Justice and the Chairperson of the Supreme Court respectively as first and second Vice-Chairs. The other members of the HCJ are judges elected by their peers. When sitting on disciplinary matters, the HCJ is presided over by its second Vice-Chair.

Besides the regular Courts, the 1996 Constitution established a Constitutional Council to control the conformity of laws and international treaties and agreements with the Constitution. The Constitutional Council also entertains disputes arising from presidential and legislative elections. It also monitors the lawfulness of the referendum operations and proclaims the result of the same. The membership of the Constitutional Council includes nine Counselors (three judges and six highly qualified lawyers) jointly appointed by the President of the Republic and the Speaker of the National Assembly for a non-renewable 9-year term in the course of which they are irremovable.

The Constitution also provides for the institution of a High Court of Justice, which is competent to try the President of the Republic and Members of the Government in case of high treason. The membership of the High Court of Justice includes 10 Members of Parliament, 2 Members of the Constitutional Council, and 3 Judges of the Supreme Court.

Legal Education and Legal Research

There are two main universities in Chad with a faculty of law: the University of N'Djamena and the Adam Barka University of Abéché. None of them has a functional law reporting system. Others universities have been recently created, including the University of Moundou (established in 2008) which has a law faculty.

The Chadian Legal Database (Banque tchadienne des données juridiques), hosted by the Center for Development Study and Training (Centre d'étude et de formation pour le développement - CEFOD) manages Legitchad, which is an online compendium of Chadian legal documents, including laws, codes, decrees, and the Chadian Law Review (Revue juridique tchadienne) which is available online.

Acts of Parliament, Decrees, and other official sources of law and documents are published in the Official Gazette of the Republic of Chad (Journal officiel de la République du Tchad), edited by the National Printing House of Chad (Imprimerie nationale du Tchad).

Most legal information about Chad (including the Constitution, Codes, Acts of Parliament, Ordinances, Decrees, jurisprudence, Official Gazette, law review, etc.) can be found on the Web page of Legitchad managed by the Chadian Legal Database (Banque tchadienne des données juridiques) located within the Center for Development Study and Training (Centre d'étude et de formation pour le développement - CEFOD). Some of these resources are accessible on the Website of the CEFOD.

Some Websites Relevant to Legal Research

State Institutions' Official Websites

Presidency of the Republic (French)

Government (French)                

Ministry of Finance, Directorate General for Tax (French)

The College for the Control and Monitoring of Oil Resources (French)

US Embassy

 

Legislation and Jurisprudence

Chadian Legal Database (French)

Legitchad

Droit francophone (French)

Association des Hautes Juridictions de Cassation des pays ayant en partage l'usage du Français (French)

 

Business Law

OHADA (French)

 

Human Rights

Amnesty International

FIDH

Human Rights Watch


 



[[1]] Article 125 of the 1996 Constitution.

[[2]] Articles 161 to 163.