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The Legal System in Côte d’Ivoire: Where Do We Stand?

 

By Dr. Kouable Clarisse Gueu

 

Dr. Kouable Clarisse Gueu is Assistant Professor of Law at the University of Bouaké, Côte d’Ivoire.

 

Published March/April 2009

 

Table of Contents

 

1. Introduction

2.The Organization of Côte d’Ivoire’s Legal System

2.1 General Principles of Côte d’Ivoire’s Legal System

2.2 Powers Separation Principle

2.3 From Uniqueness of Jurisdiction to Duality of Jurisdiction

3. The Various Institutions of the Ivorian Legal System

3.1 The Government

3.2 The National Assembly

3.3 The Judiciary Power

4. The Functioning of the Ivorian Legal System

4.1 Domains of Competence of the National Assembly

4.2 Domains of Competencies of the Executive Power

4.3 Domains of Competencies of the Judiciary Power

5. Sources of Law Applicable in the Ivorian Legal System

5.1 National Sources of Law Applicable in Côte d’Ivoire

5.1.1 The Ivorian Constitution

5.1.2 The Law

5.2 International Sources of Law Applicable in Côte d’Ivoire

6. Domains of texts in use in Côte d’Ivoire

6.1 Access to the Juridical Corpus in Côte d’Ivoire

7. References

1. Introduction

 

Located in Western Africa, Côte d’Ivoire (CI) was discovered in 1888 during a Treich-Lapleine exploration for a trade company located in La Rochelle. The country became a French protectorate in 1889, and was restructured into a colony in 1893.[1] Its final borders were established by L. Gustave Binger.[2] In 1899, the territory was entered into the French western African federation (AOF). CI was considered an overseas territory starting in 1946; on September 28, 1958, a referendum was passed which granted CI the status of member state of the French community. Despite having acceded to French community membership in 1958, CI became independent on August 7, 1960.

 

In modern and legal terms, independence created the state of Côte d’Ivoire. The consequence of this event was the establishment of the legal status of the Ivorian State through a constitution which set out the procedures for the creation of laws and the exercise of power and authority over the independent territory. Along with the constitution, CI also sought to establish a set of ideals which would characterize the nation as a whole. The indicated ideal is indicated, on one hand, by the triptych of the Ivorian motto: “union-discipline-travail,” and on the other by the adoption of the philosophical principle of the society’s organization, which is the government of people by the people, and the choice of democracy, solidarity, and development.

 

The state is located in western sub-Saharan Africa and is member of the African Union. It covers 322,462 sq. km., sharing borders in the north with Mali and Burkina Faso, in the west with Guinea and Liberia, and in the east with Ghana. To the south is the Atlantic Ocean, a main road for trade with the rest of the world. The population of Côte d’Ivoire is composed of sixty ethnic groups and many dialects connected to broader ethnic communities. The sixty ethnic groups are from diverse origins, primarily Mande, Voltaique or Gur, Akan and Krou.[3]

 

Despite the fact that CI has been autonomous and sovereign since its independence, the effects of colonial conquest have not completely disappeared. For more than half a century, the Ivorian state was administrated by the French state, such that CI has kept much of the same functioning principles as the French state. In effect, during the pre-independence period French governing principles were imposed upon local populations and traditional local organizations through pressure to conform to the colonial system. The functioning of Ivorian territory was thus marked by the French state organization, which is characterized by the centralization of the state and a public sector in charge of social management.[4] The centralized system is based on “the logic of a representation which erected the state as warrant of general interest, the only owner of rationality and legitimacy, and responsible for economic and social development.”[5]

 

The Ivorian legal system is based on the Constitution, a one-sided act, by-product of the will of the State from which is derived the entire Ivorian system of laws, as well as rights for all inhabitants and other legal subjects. Because of the colonial history of the country, the legal system of Côte d'Ivoire is strongly influenced by the French legal system which prevailed in Côte d’Ivoire up until its independence in 1960. This legal system provides all the rules establishing the status of public and private persons, and defining the relationships between public and private persons. It is therefore important here to present the organization and the functioning rules of Côte d’Ivoire’s legal system as well as the corpus of texts currently in use in Côte d’Ivoire’s legal order.

 

2. The Organization of Côte d’Ivoire’s Legal System

 

The section will both analyze the general principles which govern the legal system, and discuss the specific institutions through which the system operates.

 

2.1 General Principles of Côte d’Ivoire’s Legal System

 

The Côte d’Ivoire’s legal system had two primary stages of development. There first stage was the colonial period, during which the system was based on the French constitutional organization; the second stage began during decolonization, with the adoption of an autonomous legal system. In spite of the various adaptations, this second stage of development of the legal system was marked by the renewal of the general principles governing the colonial system. Thus the Ivorian legal system is based, on one hand, on the principle of powers separation, and on the other hand, on the adoption of the principle of jurisdiction uniqueness, which was changed by the adoption of the new Constitution of August 1st, 2000 into a duality of jurisdiction at the top level of the legal organization.

 

2.2 Powers Separation Principle

 

In order to understand the origin of the powers separation principle in the Côte d’Ivoire’s legal system, one must first understand the constitutional development process in Côte d'Ivoire, which began with the adoption of the first Constitution for Côte d'Ivoire on March 26th, 1959 when the nation was still dependent on the French Republic. Côte d'Ivoire was established as a French colony by the decree of March 10th, 1893 and administrated by a Governor dependent on the General Governor of Dakar. This colony was integrated into the French Western Organization (AOF[6]) system, following the status of overseas territory conferred by Article 60 as well as other articles from the French Constitution of October 27th, 1946.

 

Following the referendum of September 1958 in France’s African colonies and the adoption of the French Constitution on October 4th, 1958 which instituted the 5th Republic, on December 4th, 1958, Côte d'Ivoire chose to ask for its independence and its separation from the executive of Dakar, which was in charge of governing all colonies in western Africa. The country thus changed from being an overseas territory to a member of the French Community, a status which allowed the forthcoming country to set up the former territorial Assembly as a constituent Assembly. It is this constituent Assembly that adopted, on March 26th, 1959, the Constitution of Côte d'Ivoire which set up the territorial Assembly as a legislative Assembly. This constitution was adopted before the advent of the independent Ivorian State, and was similar to the political system of France, which established the principle of a flexible separation between legislative and executive powers.

 

While the separation of the powers is an essential condition for the realization of the rule of law, it is necessary to note that all States in the modern world do not have the same uniform model of powers separation. While under the French colonial regime, the principle of separation of powers in Côte d'Ivoire applied differently depending on local realities in certain areas.

 

This principle is characterized not only by the existence of various components of governmental power, but also by the organization of these components into distinct branches of government, independent of each other: legislative, judicial, and executive. These functions of these three branches are articulated depending on the political regime adopted by a given State. It is therefore possible to distinguish the parliamentary regime, characterized by the flexible separation of the three powers, from the presidential regime, which is characterized by a rigid separation of legislative, judicial, and executive functions.

 

Before its independence Côte d’Ivoire was, under the Constitution of March, 26th 1959, a regime close to the parliamentary[7] system. There was a Prime Minister who articulated his program to the legislative Assembly, which could grant or not its investiture by an absolute majority of its members. Such a system would function better if the President of the Republic and the Prime Minister, chief of the government, shared in the executive power, giving a dual characteristic to the executive as in classical parliamentary regimes. In the case of Côte d’Ivoire before independence in 1960, the Prime Minister was the only holder of executive power, serving as both Chief of The State and Chief of the government[8].

 

The constitution, which instituted this parliamentary system, expected therefore a mechanism to ensure accountability and power balance between the legislative Assembly and the government in their relationships, as the Prime Minister is empowered to dissolve the legislative Assembly and the legislative Assembly is able to decide over the responsiveness of the government through either the question of confidence or the vote of censure. If the responsiveness of the government is determined by the legislative Assembly to be insufficient, their vote will induce the resignation of the Prime Minister and the automatic dissolution of the government.[9]

 

This system where the Prime Minister was both chief of the State and chief of the executive was changed at independence by the effect of the law n°60-205 of July 27th, 1960 modifying the law n°59-01 of March 26th, 1959, related to the rank devolution, powers and prerogatives of the chief of the State for the Prime Minister and the erection of the legislative Assembly as National Assembly[10].

 

This system, which was similar to the parliamentary one, was partially abandoned under the new Constitution of the independent Côte d’Ivoire adopted November 3rd, 1960. From the principle of flexible separation of powers, Côte d’Ivoire moved to a rigid powers separation system, characteristic of a presidential regime. This regime of strict separation of legislative, executive, and judiciary powers limited the possibility of concentration of powers, as well as the reciprocal pressure existing with regard to the political responsiveness of the government vis-à-vis the parliament and the dissolution power of the parliament instigated by the government. This rejection of the former system allowed for the setup of the presidential regime, which requires the equality and independence of legislative and executive powers. Moreover the President of the republic and the Deputies are responsive vis-à-vis the people, who remain their common source of legitimacy.

 

2.3 From Uniqueness of Jurisdiction to Duality of Jurisdiction

 

The Ivorian judicial system is dedicated to the principle of uniqueness of jurisdiction at the level of the Court and Court of Appeal as well. The system of jurisdiction uniqueness prevailing in Côte d’Ivoire since independence imposes that the judge of common law should be competent at knowing all affairs, being subject to private or public law. In such a system there is no link between the competence and the source of the dispute. The same judge adjudicates regardless of the nature of the dispute – either the private law (civil, commercial, and penal) or the public law (administrative). This principle of uniqueness of jurisdiction has the advantage of avoiding conflicts of competences. It was chosen in order to simplify procedures. The uniqueness of jurisdiction should require both the administration and private individuals to be subject to the same judge and the same law. Such a hypothesis should allow really setting up a State under the rule of law, based on the uniqueness of rules and procedures in the treatment of disputes.

 

One could expect that this concern was a preoccupation for the State at the outset of Ivorian statehood when setting up judicial institutions, but it appears from the analyses of some authors that it was an issue of simplification of procedures and really the duality of rules will exist whenever the judge in charge of a dispute applies rules relatively to the nature of the dispute. It is question of whether to distinguish between the rules that apply to the administration and those to private persons.

 

But in a system of uniqueness of jurisdiction it is difficult to see the development of administrative law that is by nature the law of the public power. A tradeoff seems to exist between efficiency of the laws and rights which should be decided in favor of the administration.

 

Conscious thus of this fundamental limit of the uniqueness of the jurisdiction, Ivorian authorities made the choice, with the adoption of the new Constitution, to turn towards the system of jurisdictional duality.[11] Based on the Constitutional law established on August 1st, 2000, the Ivorian people proceeded to dismantle the Supreme Court and instituted a Constitutional council, a State council, a court of Cassation, and a court of Account.

 

3. The Various Institutions of the Ivorian Legal System

 

The Ivorian legal system includes, from an institutional point of view, a government, a national Assembly, and a judiciary.

 

3.1 The Government

 

The government, which holds the executive power as set out in the Constitution, holds its legitimacy through the fundamental principles of the State such as the republican, indivisible, non-religious, democratic and social characteristics. The head of State, chief of the government, is elected under direct universal suffrage. The President of Republic serves both administrative and political functions. He is responsible for setting national policy and is the head of the administration. He has a Cabinet, a General Secretariat and a General State Inspection. The President is elected for a five year term, renewable once.[12] To be eligible to hold the office of preside, one must be a minimum of 40 years old, but no older than 75. Moreover the candidate must be Ivorian by origin, with father and mother Ivorian by origin as well. He should never have renounced the Ivorian nationality and never have had another nationality. The candidate should have resided in Côte d’Ivoire continuously during the 5 years preceding the date of the elections and have a total of 10 years of effective presence in the territory.[13]

 

More rigorous and substantial conditions have been retained by the constitution of 2000. The importance of rigorous standards for the selection of candidates for the presidential election shows the importance of the position. Thus it requires FCFA20,000,000 as deposit, an attestation of physical and mental well-being confirmed by special physicians, a good morality and probity, the declaration of patrimonies and the justification of its origin as well as the regularity vis-à-vis the fiscal administration[14]. These eligibility conditions may be revised, subject to referendum passed by an absolute majority of voters.[15]

 

The President of Republic, though chief of the government, is not politically responsible to the National Assembly. This means that the National assembly can neither overthrow the government nor vote a Censure Motion against the chief of the executive. The only one possibility for the National Assembly to challenge the power of the President of Republic is through the High treason hypothesis. In such a case, the President of Republic is tried by the High Justice Court, which is composed of deputies and chair by the President of the Cassation Court[16].

 

The President of the Republic is helped in the role of chief of the executive by a Prime Minister, whom he nominates by virtue of his discretionary power. The post of Prime Minister was created in the Ivorian legal system in the constitutional revision of September 1990. The Prime Minister is exclusively responsible to the Head of State. He insures, as Prime Minister, the animation and coordination of the government action. He has to insure that the government action is conducted with harmony and efficiency. In that regard, the Prime Minister has to create balance between the overlapping competencies which arise from ministers’ willingness to act outside and over their domain of competencies, or resulting from the default in the writing of the decrees describing the attributions of the members of government. The Prime Minister has the power to propose the nomination of other members of the government to the President of Republic. He substitutes for the President of Republic in the case of the President’s absence from the national territory.[17]

 

The organization administrated by the President of the Republic has followed successive steps. In 1959, by law n°59-4 of March 28, 1959 the territory was divided into four administrative circumscriptions or departments, including the previous circles which were transformed into sous-prefectures; the sous-prefects replaced the chiefs of subdivisions and the prefects took the place of old circles commandants. The law n°61-84 of April 10, 1961 related to the functioning of departments, prefectures and sous-prefectures replicates the French law, mainly the law of August 10, 1871. In Côte d’Ivoire as in France, the department is an administrative circumscription and a local collectivity as well. All texts following the law of 1961 have only multiplied departments by creating new prefectures with the same organizational logic as in France[18]. The resolution of the political and military crisis in Côte d’Ivoire since 2002 has led to institutional arrangements which are problematic in the established constitutional order. In effect, “groups of insurgents in connection with foreign governments and international financial forces occupy the northern and the extreme western part of Côte d’Ivoire, threatening the integrity of the territory, national unity and government authority.”[19] These arrangements were translated into various agreements not related either to international law or to private law conventions. The Linas Marcousis agreement was the primary such arrangement, which is a political agreement that confirms the constitutional principles of the Ivorian state organization and also modifies in few points some constitutional disputes. For example, it is admitted in this agreement that the political parties are not the only political constitutional forces competent to contribute to suffrage. It is a requirement to take into account all parties of Linas Marcousis agreement, which get proportional ministerial posts. These parties are represented at the independent electoral commission for 2005 presidential elections, postponed in October 2006, in October 2007, and in November 2008, though no date has been determined since November 2008.

 

The crisis has also affected the presidential system instituted by the constitutional reform of 1960. The Ivorian presidential system is affected by the conditions of designation of the actual Prime Minister. In effect, contrary to the constitution, the President could was not able to freely nominate the Prime Minister and other members of the government. The sharing of ministerial posts and the nomination of the Prime Minister derive from the Linas Marcousis resolutions. Facing difficulties in applying this agreement, and following the requisite of the United Nations Security Council, the President of the Republic decided to engage in direct negotiations with rebel forces under the auspices of Burkina Faso public authorities. This negotiation led to the Ouagadougou political agreement, which is the current method of political power management in Côte d’Ivoire.

3.2 The National Assembly

 

The National Assembly in CI is unicameral as it has only one chamber. Unicameralism is logical in a Unitarian State as Côte d’Ivoire.[20] The National Assembly is composed of deputies elected for 5 years through direct universal suffrage by a majority of the voting population. They are eligible for reelection indefinitely. Candidates for legislative election must be at least 25 years old, Ivorian, and never have renounced the Ivorian nationality. Moreover the candidate should have resided in Côte d’Ivoire continuously during the 5 years preceding the date of the elections.[21] The candidates are subject to a double control, by the electoral commission, which fixes and publishes the list of candidates for legislative elections,[22] and by the Constitutional Council, which is the judicial component competent to signal disputes related to the election of members to the National Assembly or Presidency of the Republic.[23]

 

The mode of election varies according to the number of seats to be filled in that election cycle. When there is one seat to fill, the uninominal mode is used, with one round of voting by majority rule. If there are several seats to fill, the one round list with blocked majority without preferential vote applies.[24] The current legislature (2000-2005) is composed of 225 deputies, as opposed to 175 during the preceding one (1995-2000). This modification is the consequence of the change in the system of electoral district-sharing based now on superficies and population.

3.3 The Judiciary Power

 

Within the Ivorian legal system the Judiciary Power is organized and regulated according to rules that fix the organization of courts, the judges’ status, their competencies, and the way individuals can access the courts. Individuals who wish to make use of the judicial system must know in advance the competent judge, the way he could be referred and the way the trial will be conducted.[25] The Constitution of August 1st, 2000 states in Article 103 that “The judiciary power is independent from the executive power and legislative power.”

 

Article 103 reinforces this independence by submitting all judges only to the authority of law in their function. It is thus the legislature which fixes the rules determining the way action must be exerted, the forms to be observed by trial parties in order to guarantee the loyalty of debates, the revelation of the truth and an equitable and credible verdict by the judge.[26] The independence of the judiciary power stated by the Constitution of August 1st, 2000 is guaranteed by the President of Republic, who chairs the Superior council of Magistrate.

 

Nevertheless, in order to allow judges to undertake their activities impartially, it is not sufficient to only observe the recruitment rules that guarantee their competence, but judges should also have a status which preserves their independence, such that they may resist pressures on them while they hold this position.[27] While the magistrates of the seat are granted with the principle of immovability, the magistrates of public ministry are subject to the will of the Ministry of Justice. This status of public ministry has made the principle of power separation superfluous, as the principle of independence of the judiciary is so ensured.

 

In order to learn from the confusion of powers created by the hierarchical status of the public ministry, the Ivorian constitution incited a fundamental reform consisting of the modification of the disciplinary regime for the public ministry. The effect of this modification was to suppress the disciplinary power of the Ministry of justice by submitting the judges of the public ministry to the common discipline regime of the judges of the seat.

 

Under the regime of the old Constitution of November 3rd, 1960, the law fixed the disciplinary regime of magistrates. It was one of the objects of the law n°78-662 of August 4th, 1978, on the status of magistrates, modified by laws n°94-437 of August 16th, 1994 and n°94-498 of September 6th, 1994. From Article 35 of this law, “any neglect by a magistrate in the proprieties of his state, in the honor, in the delicacy or in the dignity, constitutes a disciplinary fault. The fault is appreciated, for a member of the Public prosecutor's department considering the obligations which ensue from its hierarchical subordination.”

 

In order to alter this regime, which attributed an intervention power to the ministry of justice in the functioning of the judiciary, the Ivorian constitution entirely removed the public ministry from the disciplinary attributions of the executive power, and transferred it to the only one authorized component in all judiciary systems, in order to guarantee the independence of the magistrates. Thus the public ministry escaped from the arbitrary risks of the ministry of justice and is disciplinary subject to the superior council of magistrates. The disciplinary sanctions such as those in Article 37 of the status of the magistrate are applied by the superior council of magistrates.

 

4. The Functioning of the Ivorian Legal System

 

The Ivorian Constitution of August 1st, 2000 fixed the functioning rules for public institutions in Côte d’Ivoire. In that regard the constitution determined the domain of competence of each public power, as well as the rules to be used in the Ivorian legal system.

 

4.1 Domains of Competence of the National Assembly

 

Within the State, the National Assembly serves as the primary democratic organ of government. The functions of the National Assembly thus are subject to strict rules codified so as to guarantee the stability and the authority of the government.[28] Nevertheless, as representative organ of the Ivorian people, the National Assembly holds the power of making the law and controlling governmental action, which is its sole power under the presidential system marked by a rigid separation of powers.

 

The power of the National Assembly to make the law is established in the Constitution of August 2000 in Article 61, which states that “the National Assembly votes on the law and agrees upon taxation.” Article 71 clarifies in turn that “the National Assembly holds the legislative power. It alone votes on the law.” The power of making the law is regulated by the Constitution, which delineates the matters in which the National Assembly fixes rules and determines principles. According to Article 71 of the Constitution, the National Assembly determines rules in matters such as citizenship, civic rights and fundamental guarantees in the exercise of public liberties, nationality, state and capacity of persons, matrimonial regimes, successions and liberalities, crimes and offences as well as applicable punishments, penal procedure, amnesty, status of magistrates, ministerial officers, justice auxiliaries, public service, prefects, diplomats, staff of local and regional authorities, and military function.

 

The National Assembly also determines the base, the percentage and modalities to recover all types of taxes, as well as the system of money creation and the electoral regime of the National Assembly and local Assemblies. It creates the categories of public establishments and regulates the state of siege and state of urgency. Aside from the preceding matters for which the legislature determines the rules, there are other matters in which the National Assembly is restricted to determining certain fundamental principles. Such matters include the general organization of the administration, in areas such as Education and scientific research; organization of the national defense, property regime, real rights and civil and commercial obligations; labor law, union and social institutions law; alienation and the management of state-administered property; transfer of enterprises from the public sector to the private sector; mutuality and savings, environmental protection, production organization, status of political parties, and the system of transportation and telecommunications.

 

In these areas, the National Assembly adopts either laws which determine the objectives of economic and social action for the State or organic laws aimed at governing various institutions, structures, and planned systems. The principle of separation of powers is relevant to the National Assembly, as regards the ability of this body to control the executive. In effect, as described by Montesquieu, in order to prevent despotism, it is necessary to separate powers within the State and create a balance between them. This equilibrium is realized under the Ivorian constitution by both the requirement of the Executive to inform the National Assembly of its actions,[29] and the power of the National Assembly to charge the President and members of the government for crimes committed. In order to exercise this latter power, a secret vote of the National Assembly must be held, with a 2/3 majority being required to charge the President, and a simple majority required to charge members of the government.[30] There are many mechanisms by which the legislature is empowered to exercise control over the executive. They may use written questions or oral argumentation with debate, or organize commissions of inquiry which allow the Assembly to understand and examine facts, enterprises, or public organizations[31] in order to make decisions.

4.2 Domains of Competence of the Executive Power

 

The domain of competence of the executive power is, like the legislature, characterized by a rigid separation of powers. The President of the Republic, leader under the presidential regime, serves as both chief of the State and chief of the government. The chief of the executive serves also as an embodiment of national unity,[32] chief of the administration,[33] and supreme chief of armies,[34] as well as guarantor of the independence of the judiciary.[35]

 

As the guarantor of the existence and the continuity of the State and protection of the Constitution, the President of the Republic, who embodies the executive power, has the power to initiate revision of the Constitution[36] and constitutional referenda.[37] The investment of this power solely in the President helps to ensure the continued respect of the Constitution. Also, when required by exceptional circumstances, the President of Republic is legally enabled to behave as a temporary dictator.[38] It was through this provision that the events of September 19th 2002 allowed the enactment of crisis powers.

 

During this time, the President of the Republic’s reluctance to take advantage of these powers led him to adopt only measures of policing. The implementation of the political agreement of Pretoria, intended to restore stability after the September 2002 events, impels the chief of State to resort in full substance to Article 48 of the Constitution by allowing all signatories of the agreements to be eligible for the forthcoming presidential election, regardless of formal eligibility conditions. This use of Article 48 of the Constitution, though necessary for restoring peace in the State, is not in accordance with the spirit and letter of the Constitution.[39] Nonetheless, the measures referring to Article 48 should not be seen as a flagrant violation of the Constitution which organizes the application of this disposition.

 

In legislative matters, the President of the Republic also has the power to initiate laws in the National Assembly.[40] In Côte d’Ivoire, this power makes it such that most of the texts proposed in the National Assembly are desired laws from the executive power. In the exercise of his right of legislative initiative, the President of the Republic has the power of veto, which allows him, prior to the promulgation of a law, to ask for a second deliberation on the law or some aspects of it. This second deliberation cannot be refused to him. The President of the Republic also has the power to legislate by ordinance[41] within the domain reserved to the National Assembly and to initiate referenda.[42]

 

In administrative matters, Côte d’Ivoire is a decentralized State which includes regions, departments, and communes. The President of the Republic appoints individuals for Superior civil and military employment. There are also, aside from these administrative demarcations, administrative independent authorities which are regulatory authorities for some sectors of administrative activities, such as the National Council of Mass Media Communication, Côte d’Ivoire Telecommunication Agency, the National Authority of Electricity Regulation, the National Agency for Urban Healthiness, and others.

 

4.3 Domains of Competence of the Judiciary Power

 

The organization of the judiciary is based on the law n°61-155 of May 18th, 1961 related to judiciary organization, modified by laws n°64-227 of June 14th, 1964, 97-399 of July 11th, 1997, n°98-744 of December 23rd, 1998, and n°99-435 of July 6th, 1999. The nation is organized into non-permanent jurisdictions, permanent jurisdictions, and arbitral jurisdictions. There are two-non permanent jurisdictions with specialized competencies related to specific areas of the law. The first of these is the High Justice Court, competent to judge members of the government for crimes or offences committed during their time in office. The competency of the Justice Court is related to the definition of crimes and offences by the penal laws in effect in the nation. The second, the Court of Assize, is competent to judge the highest and most severe levels of crime. Individuals are sent to the Court of Sat after being indicted by the Court of Appeal, which is the second degree instruction jurisdiction.[43] The assizes are held twice a year. They are held at each first instance Court. The Court of Assize includes a President, two Counselors who are all professional magistrates, and nine Members of the jury. At the Court of Assize, the accused always appears in detention. The judgment of the Court of Assize cannot be subject to a cassation power, the decision being definitive.

 

The permanent jurisdictions are composed of first instance courts and their sections, Appeal Courts, and supreme jurisdictions such as the Court of Cassation, the Court of Account and the State Council. There is also, since the treatise of October 17th, 1993 concerning the Organization for the harmonization in Africa of Corporate law (OHADA), a superior jurisdiction within the judiciary organization called Common Justice and Arbitrage Court (CCJA). This jurisdiction is in charge of applying and interpreting uniform acts taken in application of the OHADA treatise. The seat of the CCJA is in Abidjan. It is composed of seven judges elected for seven years, renewable once.

 

The CCJA is seized by appeal in cassation in order to rule on the decisions of the appeal jurisdictions and those given at first and last by courts, in subjects related to the application of uniform acts and rules planned by treatises, except decisions applying penal sanctions. Seizing the CCJA suspends all cassation procedures engaged at a national jurisdiction. The decisions of the CCJA are enforceable without resorting to the procedure of the exequatur.

 

In applying the corporate law, economic agents have the ability to submit contractual disputes to the arbitrage procedure. The CCJA has here the role to appoint and confirm the arbitrators selected among the parties, to follow the progress of the arbitral instance, to examine the verdict projects and to decide on the exequatur of the verdict. Only the CCJA is competent to give the verdict of exequatur.

 

Beside these jurisdictions there is another jurisdiction with a special nature due to the kind of questions it has to deal with. It is the Constitutional Council, whose domain of competence is the constitutionality of laws and rules of the National Assembly. It is the judge of national elections (presidential, legislative and referendum). It is also a consultative and notice organ. In effect it notices the hindrance of the PR[44]. It also notices the compatibility of international commitments with the Constitution.[45] It gives notices in case the President of the Republic resorts to Article 48 that grants exceptional powers when there are potential events that could lead to a grave crisis.

 

Côte d’Ivoire has nine first instance courts (Abidjan, Yopougon, Bouaké, Bouaflé, Daloa, Man, Abengourou, Korhogo and Gagnoa), and three appeal courts (Abidjan, Bouaké and Daloa). Appeal courts are divided into several civil chambers, correctional, and social.

 

In administrative matter, appeals are directly transmitted to the administrative chamber of the Supreme Court for appeals in excess of power, mainly for canceling an administrative act due to its illegality. The dispute of municipal elections is also the domain of the administrative chamber of the Supreme Court. But in matters of full dispute, i.e. in reparation of damage caused by the administration, contractual responsibility of the administration, dispute of contract, or fiscal dispute, appeal is submitted to the first instance jurisdiction, which is competent to know all civilian, administrative, and commercial affairs.

5. Sources of Law Applicable in the Ivorian Legal System

 

As all civilized countries in the world, Côte d’Ivoire has an elaborate and materially precise legal arsenal applicable in various arenas in society. Thus the State is regulated by international rules and domestic rules.

5.1 National Sources of Law applicable in Côte d’Ivoire

 

Within its national jurisdiction Côte d’Ivoire has a Constitution, laws, and rules.

 

5.1.1 The Ivorian Constitution

 

The Ivorian legal system is inherited from the French colonial system and was in use through successor instruments from which the French law was naturalized. These instruments are the Constitution and the cooperation agreements. Before getting to the current Constitution it is necessary to know that Côte d’Ivoire had a two-step process of constitution establishment.

 

The first step is related to the first constitution of March 28, 1958. This Constitution did not predict, as the constitutions of other African countries,[46] the application clause of the French juristic order. But this silence was filled by the ordinance n°59-913 of October 6, 1959, which contained the clause foreseeing the renewal of colonial juristic order. This ordinance fixed the conditions of application of Article 76 of the French constitution, and stated that “in the member countries of the community, dispositions with legislative or statutory values in use at the date of the choice expected at Article 76 of the constitution remain applicable in their dispositions, not contrary to the constitution as far as their modification or their abrogation have not been pronounced by competent authorities in virtue of the constitution and the new status of these states.”[47] This was the general line, the spirit or the letter of this French ordinance, which founded the various constitutional dispositions renewing later on laws and rules of the colonial era.[48]

 

After the first constitution in 1958, a new Constitution followed to outline the break of communitarian links with France. It was the Constitution of November 3, 1960. This Constitution, contrary to the first, indicates transitory dispositions in Article 76, which states that “the legislation currently in use in Côte d’Ivoire remains applicable until availability of new texts, if it does not contain anything contrary to the current Constitution”.

 

Following the military coup of December 24, 1999, the Constitution of November 3, 1960 which had prevailed for 40 years was suspended and replaced by the new Constitution adopted by referendum on August 1st, 2000. This constitution set up the second Republic and renews Article 76 of the first constitution in its Article 133. “The survival of this clause of renewing of the French juristic colonial order despite the political turmoil and resulting constitutional reforms attests that it is a fundamental principle of internal law of African states in general and particularly in Côte d’Ivoire.”[49]

 

The Constitution is the fundamental law chosen by Ivorian people. The text of the Constitution and its literal interpretation are under the competence of a special jurisdiction, the Constitutional Council. The role of the constitutional council is on one hand to guarantee the constitutional separation of powers while maintaining equilibrium between these powers, and on the other hand to guarantee the legality of the devolvement and the exercise of power.

 

The renewing of the French juridical order was also realized through the cooperation agreements signed before independence and those concluded on April 24, 1961 between the French republic and the Republic of Côte d’Ivoire. These conventions of cooperation renew colonial legislation, mainly the annex convention related to the employment of judiciary workers signed in Abidjan on June 30, 1959, the annex protocol to the convention related to relationships between the French public treasury and the public treasury of the Republic of Côte d’Ivoire and to reciprocal assistance and cooperation between Côte d’Ivoire and the French Republic for organization and functioning of treasury services signed in Paris December 31, 1959, the cooperation agreement in economic, monetary and financial matters, and the cooperation agreement in justice. These conventions also introduce the metropolitan legislation into the Ivorian judiciary order. This is the case with the Franco-Ivorian cooperation agreement related to High school signed April 24, 1961.

 

5.1.2 The Law

 

Relative to Article 71 of the Constitution of August 1st, 2000, the law covers the following domains: citizenship, civil and political rights, fundamental guarantees for the exercise of public liberties, nationality, state and capacity of persons, matrimonial regimes, successions and liberalities with procedure, and various other laws including organic laws and ordinary laws.

 

The purpose of the law is to determine the rules to regulate institutions and expected systems, or other areas as specified in the Constitution. In that regard various laws have been adopted and are in use. Laws are published in the Official Journal of Côte d’Ivoire.

 

The legislative corpus in use in Côte d’Ivoire is not the product of the Ivorian state. This corpus, partially from colonial origin, is composed of texts promulgated by the colonial government either on the Ivorian territory or in relation to it. These laws have been made applicable to the principle of legislative specialty, which was the criterion which determined the applicability of colonial legislation. In effect, according to this principle, colonial laws are applicable on overseas territories if they are made precisely to regulate or if they have been extended by a special disposition included in the law or in a decree.[50]

 

According to this principle, Côte d’Ivoire has agreed to a selection of laws being renewed in its territory after the colonial period. But this selection was not applicable to certain full right laws and to more general texts. Applicable full right laws were grouped into several categories by P. Darest in his treaty of colonial law of 1931. It was mainly a question of laws dating from the period of validity of the French constitution in Year III, legislation applied to acts or contracts in colonies, metropolitan law which followed the French people outside of the mother country, constitutional laws, international treatises, old laws, interpretative laws, and general laws. As indicated by Lampue, theses texts are those which, outside the constitution, organize the government, set general competency rules for public power, and set the functioning conditions of central organs whose actions impact the whole state.[51]

 

The more general texts, as mentioned above, constitute a category of laws that are fully applicable without requiring a special measure of extension to overseas territories. In that sense the Appeal council of Djibouti, a former French colony, has judged that the whole customary legislation of the mother country was applicable without any special measure of extension. The council indicated that “Considering that the three laws of April 28, 1816, April 21, 1818 and January 2, 1875 related to custom, have general interest characteristic, they are applicable to French Côte of Somali as a consequence of annexing of this country.”[52]

 

The French state council confirmed this position in its judgment to Dame Louys of December 3, 1948 concerning the metropolitan law of April 11, 1946, allowing women to have access to the judiciary. In effect, regarding the Ministry of Overseas which denied the right to Dame Louys to be a candidate for the professional exam of judiciary, the state council noted that the existence of a particular status of colonial judiciary can not contradict the general terms of the disposition of law of April 11, 1946.[53]

 

The principle of full applicability of general characteristic rules was extended to several categories of texts due to jurisprudential practice. The judge made fully applicable the customary legislation in A.O.F. by indicating that because customary services were in place in A.O.F., the legislation and the customary rule of the mother country were executive.[54] That was the case of application of the French civil code in A.O.F. In effect, all Appeal courts in Bordeaux asserted that the civil code published in Senegal the first time by order of September 28, 1805 was a binding law, but according to Degni Segui, “the civil code was not applied in fact until 1830 without any finding on this order in the archives of the colony.”[55]

 

Moreover, the appeal court in Bordeaux decided, based on the publication of various texts in the colonies, primarily the trade code and penal code, that “All acts from public power posterior to the resumption of the colony, do not allow any doubt on the anteriority of the promulgation of the civil Code.”[56] The colonial French state legislated many aspects of life in Côte d’Ivoire during the colonial period. These normative decisions made by the French, through their establishment of overseas territories and colonies, were implemented from the settlement of the Gold Coast in 1842 until independence in 1960.[57]

 

Thus Côte d’Ivoire has inherited much of its law, some of which was made applicable through special measures, and other simply by its general characteristics, have been applicable in the territory. The laws that have been made applicable are very diverse. In public law, due to the principle of legislative assimilation in that area, applicable laws to the mother country were also applicable to Côte d’Ivoire. In specific, these are the law of August 8, 1949 related to state of siege, the law of July 3, 1877 on requisitions, the law of July 1, 1901 on associations, the law of July 29, 1881 on independence of mass media, the law of January 11, 1892 and the decree of the February 1895 on custom, and the law of April 5, 1884 slightly modified and extended by the law of November 18, 1955 related to municipal organization in A.O.F., in A.E.F, in Togo, Cameroun and Madagascar. In private law, all the civil legislation, as well as that related to trade and crime, as promulgated in Senegal by the decree of November 1830, was applicable to Côte d’Ivoire by the decree of December 16, 1896 and several times modified and completed by posterior texts. The law of December 12, 1952 on labor law, and the ordinance of September 24, 1945 related to the exercise and organization of physicians’ profession, dental surgeons and midwives, were made applicable to overseas territories by the decree of July 28, 1952.

 

Thus Côte d’Ivoire has a Nationality code and a civil code. In effect laws, ordinances, decrees, arêtes and rules are enforceable throughout the Ivorian territory by virtue of promulgation by the President of the Republic three days after their publication in the Official Journal of the republic of Côte d’Ivoire. They are enforceable in each area of the republic as soon the promulgation is made known. The date of publication of the Official Journal is officially established by mean of observation made on a special register at the secretariat of the government. The same texts can be published according to an urgency procedure in exceptional circumstances. The urgent publication is made by display of the text in each prefecture, along with a verbal declaration set up by the Prefect, which guarantees a large diffusion. The text is also published in daily press and is subject to 3 radio diffusion announcements. The acts published according to urgency procedure become enforceable from their display.

 

The law states that it does not have a retroactive effect. The police and State security laws oblige all those living in the Ivorian territory. Buildings, even those belonging to foreigners, are subject to the Ivorian law. One cannot violate the public order and good customary laws.

 

5.2 International Sources of Law Applicable in Côte d’Ivoire

 

Contrary to the system in use in the United States, where treaties and Congressional laws are at the same level in the legal hierarchy, in Côte d’Ivoire treaties regularly ratified are, upon publication, a superior authority to domestic law, so long as the treaty is also applied by the other party.

 

Treaties of peace, international organizations treaties, and those modifying Côte d’Ivoire internal laws can be ratified only following a law. It is the President of Republic who negotiates and ratifies treaties and international agreements. The Minister of foreign affairs is the only one in charge of the preparation of the ratification and publication of conventions, agreements protocols, and international rules signed by Côte d’Ivoire or in which Côte d’Ivoire is engaged. The same applies to the renewal or renunciation of agreements. The other ministers must transfer to the Minister of foreign affairs the text on a treaty when they have participated in its elaboration or renunciation, immediately after the signature or adoption, regardless of the importance and character of the text.


After transmission to the Minister of foreign affairs, international texts must be published in the Official Journal of Republic of Côte d’Ivoire. They can also be published in a special official bulletin format with free consultation at the ministry of foreign affairs.

6. Domain of Texts in use in Côte d’Ivoire

 

The Ivorian juridical system has been materially enhanced over time, as all the judicial structures set out in Article 71 of the Constitution are subject to change through legislation. Though there are still certain reform texts that are not yet applicable, it is important to note that Côte d’Ivoire has legislated within the domain of Article 71 and is thus committed to the improvement of the legal system.

 

The following codes are effective in Côte d’Ivoire: civil, nationality, electoral, land, mining, labor, social investments, penal, military function, telecommunications, water, forestry, custom, oil, environment, civil procedure, commercial and administrative, procurement contracts, tax, public establishments, general status of public service, privatization of public enterprises law, judiciary and administrative trial organization law, status of magistrates and ministerial officers and justice auxiliaries law, general organization of administration, political parties law, insurance code law, etc.

 

Among all these laws some are organic, meaning that the objective of these laws is to regulate the various institutions, structures, and systems planned or qualified by the Constitution. These organic laws are voted on and modified through a special procedure. Once an organic law has been proposed, the National Assembly only has 15 days in which to deliberate and come to a vote. The text can only be adopted by the National Assembly with a 2/3 majority vote. Organic laws can be promulgated only after the Constitutional Council has declared that these laws are in conformity with the Constitution.[58]

 

In civil matter due to difficulties of assimilation between colonial and traditional law, the legislator did not choose the option of codifying traditional law. He suppresses it by adopting the law of October 7, 1964, which includes several aspects of the life of individuals. These are mainly individual and family law. Summing to a total of ten these laws rules the civil, the name, marriage, divorce, fatherhood, filiations, adoption, donations, successions and testaments…[59]. Are also in use the law of August 3, 1970 related to incapacities and father responsibility[60]. All these civil law are also replication of French civil code.

6.1 Access to the Juridical Corpus in Côte d’Ivoire

 

Texts in use in Côte d’Ivoire are published in the Official Journal, which is the legal announcement journal of the State. Nevertheless, because of structural difficulties, the Official Journal is not published within the period of publication of legal acts. To overcome this difficulty, it is possible to resort to the general secretariat of the government to get certified copies, or to refer to archives of National Assembly to gain access to preliminary working acts, debates, and texts of laws.

 

Along with these official sources, there are also public or private documentation services which have specialized documents related to Ivorian law. The National Center of Legal Documentation, which is a public service center created in 1955, is one such source. Via this center, through the link to the Ministry of Justice and Human Rights, one can find digital documents regarding civil, administrative, and penal jurisprudence. All texts in use in Côte d’Ivoire can be consulted at this center in PDF format.

 

Moreover, there is also the Ivorian Association for the Development of the Law (AIDD), which publishes a monthly review of legal and juridical information, including doctrine and jurisprudence. At the supreme jurisdictions level, such as at the Court of Account, the jurisprudence review is not up to date.

 

7. References

 

ATGER (A) : « La France en Côte d’Ivoire  de 1843 à 1893, 50 ans d’hésitations politiques et commerciales » Thèse de Doctorat 3ème cycle, Université de Dakar, 1962.

 

DAREST (T), « Traité de droit colonial », 1931, T1.

 

DEGNI SEGUI (R), « Codification et uniformisation du droit » in Encyclopédie juridique de l’Afrique, NEA, 1982, Tome1.

 

ASSI ESSO (A. M), « Précis de droit civil ivoirien : les personnes – la famille » col. Précis de droit ivoirien, 1997.

 

GONIDEC (P.F), « Les principes fondamentaux du régime politiques de Côte d’Ivoire » in Penant 1961.

 

KOUASSIGAN (A G), « Quelle est ma loi ? Tradition et modernisme dans le droit privé de la famille en Afrique Noire francophone » ed. A. Pedone, Paris, 1974.

 

Le ROY (E), « La formation des droits non étatiques » in Encyclopédie de l’Afrique, NEA, Dakar, 1982.

 

GONNIN (G) et KOUAME ALLOU (R), « Côte d’Ivoire: les premiers habitants » col. Histoire de la Côte d’Ivoire, ed. CERAP, Abidjan, 2006.

 

FOFANA (L), « Côte d’Ivoire: Islam et société, contribution des musulmans à l’édification de la nation ivoirienne (XI-XX siècles), col. Histoire de la Côte d’Ivoire, ed. CERAP, Abidjan 2007.

 

LOUCOU (J-N), « Côte d’Ivoire: les résistances à la conquête coloniale » col. Histoire de la Côte d’Ivoire, ed CERAP, Abidjan, 2007.

 



[1] I. DIABY, « Les politiques de décentralisation en Côte d’Ivoire » Thèse de doctorat nouveau régime soutenu le 4 juillet 1995, Université de Paris XIII, p.3 et ss.

[2] L. Gustave BINGER (1856-1936) était un officier, explorateur et administrateur français. Il explore les côtes du Niger et de la Côte d’Ivoire de 1887 à 1889 et devient gouverneur de la Côte d’Ivoire de 1893 à 1897, date à laquelle il prend la direction des Affaires d’Afrique au Ministère des Colonies.

[3] S.-P EKANZA, « Côte d’Ivoire: Terre de convergence et d’accueil (XVe-XIX siècles), coll. Histoire de la Côte d’Ivoire, Ed. CERAP, Abidjan, 2006, p7.

[4] In effect the French doctrine has widely demonstrated and criticized the classical conception of public policies based on the primacy of the state in the sectoral social management. Cf. L. ROUBAN, « La modernisation de l’État et la fin de la spécificité française » in RFSP 1990, n°4, pp. 528 and ss. P. MULER, « Les politiques publiques » Paris, PUF, Que sais-je? 1990, p.18 and ss. From the same author « Les politiques publiques entre secteurs et territoires » in Politique et aménagement du territoire, 1990, n°3, p. 20 ; J. CHEVALLIER, « Science administrative » Paris, PUF, 3rd ed. 2002, p.383 and ss. From the same author, « Décentralisation et politiques publiques » in AJDA 20 avril 1992, pp.120 and ss.

[5] J. CHEVALLIER, « Décentralisation et politiques publiques » op. cit. p.121.

[6] Afrique occidentale française

[7] Cf. F. V. WODIE, « Institutions politiques et droit constitutionnel en Côte d’Ivoire », Abidjan, PUCI, 1996, p43 and ss.

[8] Idem, p.44

[9] Cf. articles 48 to 52 from Constitution of mars 26, 1959.

[10] Cf. F. MELEDJE DJEDJRO, « Cours de Droit constitutionnel » University of Cocody, Abidjan, ed. ABC, 2007, p.130

[11] Cf. R. DEGNI-SEGUI, « Droit administratif général » Abidjan, édition CEDA, Abidjan 2002, Tome 1, p.34 et ss.

[12] Cf. art. 43 of the electoral Code.

[13] Cf. art. 35 of the Constitution of August 1rst , 2000.

[14] Cf. art. 35 of the Constitution

[15] Cf. art. 126 of the Constitution of August 1rst, 2000.

[16] Cf. art. 108 and 109 of the Constitution of August 1rst, 2000.

[17] Cf. pour tout le paragraphe les articles 41 et 53 de la Constitution du 1er août 2000.

[18] Cf on this point H. TAY, « l’Administration ivoirienne »in encyclopédie administrative, published by Institut international d’administration publique, Ed. Berger-Levrault, p30 ; Gazier, « Les problèmes spécifiques de l’Administration publique dans les pays sous développés » in Civilisation, vol. XI, 1961, n°2, p146. Ref. by R. DEGNI SEGUI, « Introduction à l’étude du droit » op. cit. p255.

[19] Cf. MELEDJE DJEDJRO, Cours de Droit Constitutionnel, Université de Bouaké, 2008.

[20] Cf. F. WODIE, « Institutions politiques et droit constitutionnel » op. cit. p.142.

[21] Cf. art 71 of the electoral Code.

[22] Cf. art.80 and 81 of the electoral Code.

[23] Cf. art. 94 of the Constitution of August 1rst, 2000 and art. 97 of the electoral Code.

[24] Cf. art 68 of the electoral Code.

[25] G. ZAMBLE BI TAH, « Cours de procédure civile » Université de Bouaké, édition ABC. 2006, p.1.

[26] Idem, p.1

[27] Cf. J. VINCENT, S. GUICHARD, G. MONTAGNIER and A. VARINARD, « Institutions judiciaires : organisation, juridictions et gens de justice » op. cit, p.753.

[28] Idem, p.637.

[29] Cf. art. 82 of the Constitution of August 1rst, 2000.

[30] Cf. art. 111 of the Constitution of August 1rst, 2000.

[31] Cf. art. 96 of the reglement of National Assembly.

[32] Cf. art. 3 of the Constitution of August 1rst, 2000.

[33] Idem. art. 41

[34] Idem. art. 47

[35] Idem. art. 104

[36] Idem. art. 124

[37] Idem. art.126

[38] Idem. art 48

[39] Cf. MELEDJE DJEDJRO, « Cours de Droit Constitutionnel » University of Cocody, 2007-2008.

[40] Cf. art. 42 of the Constitution of August 1rst, 2000.

[41] Cf. art 75 of the Constitution of August 1rst, 2000.

[42] Idem. art. 32 and 43

[43] Cf. ZAMBLE BI TAH G. « Cours de droit judiciaire privé » University of Bouaké, 2005-2006, p.16

[44] Cf. art. 40 of the Constitution of August 1er, 2000.

[45] Idem art. 86.

[46] Notamment Dahomey, Haute Volta, Niger

[47] Cf R DEGNI SEGUI, Introduction à l’étude du droit, inédit, p.247

[48] Idem,

[49] Idem, p.148

[50] P. LAMPUE, « Les lois applicables dans les territoires d’Outre-mer » in Revue Penant, 1950, p1 and ss.

[51]Cf. R. DEGNI SEGUI, « Introduction à l’étude du droit »op.cit, p237

[52] Idem, 238

[53] CE, Dame Louys, December 3, 1948, Dalloz 1949, p553

[54] C.A de A.O.F, of June 29, 1911, see R. DAREST, 1911, cited by R DEGNI SEGUI, op. cit. p239

[55] Cf R. DEGNI SEGUI, p. 240

[56] According to R. DEGNI SEGUI, the Appeal court of Bordeaux mentions, excluding the first promulgation of 1805, various others, mainly the November 5, 1830 one, without any proof of their existence. See Sirey, 1890, 2, p231.

[57] Idem

[58] Cf. art.71 de la Constitution ivoirienne du 1er août 2000.

[59] Cf A. AGGRET, Code Civil 1 : Droit des personnes et de la famille, juris-éditions ; A.-M ASSI ESSO, « Précis de droit civil ivoirien : les personnes-la famille » Libraire de droit ivoirien, Abidjan, 1997

[60] Cf. loi n°70-483 du 3 août 1970 sur la minorité. JORCI 1970, p.1364