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The Gabonese Legal System and Legal Research

 

By Ernest Folefack

 

Ernest Folefack holds an LL.B from the University of Yaounde (Cameroon), a maîtrise in Public Law and Political Science and a DEA in Public Law (majoring in Health Law) from the University of Bordeaux I, and a Doctorate in Law (with thesis in International Law) from the University Montesquieu Bordeaux IV, France. Since 2000 he has been a Teacher-cum-Researcher in the University of Dschang, Cameroon. His main focuses are on International Law, Law of Regional Integration, Human Rights (trainer and representative of the University for International Moot Courts competitions in International Law and Human Rights Law), Constitutional Law, and Administrative Law (member of IACL/AIDC and the African Network of Constitutional lawyers). He participated in many conferences and seminars in Africa on Human Rights, International Humanitarian Law, and Constitutional Law, and has published articles in the fields of Higher Education, Human Rights, Humanitarian Law, Regional Integration Law, and Constitutional Law. Currently he is an invited research partner at the Danish Institute for Human Rights (DIHR) (August - December 2007).

 

Published September/October 2007
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TABLE OF CONTENTS

 

Introduction

Form of the State

Historical Note

Structure of Government

Executive

Legislative

Judiciary

Applicable Law

National Legislation

Regional Economic, Monetary and Business Law

                  Regional Economic and Monetary Law

                  Regional Business Law

Insurance Law

International Treaties Law

Legal Education and Legal Profession

Legal Education

Legal Profession

Legal Information

Selected Bibliography

 

 

Introduction

 

Gabon is formally known as the Gabonese Republic. The name is derived from the Portuguese word “gabao”.  It won independence from the French on the 17th august 1960. It is situated to the west of the Central Africa region. It is bordered to the north by Cameroon, to the east and south by the Republic of Congo, to the north-west by Equatorial Guinea, and to the west by the Atlantic Ocean. It has a surface area of 267,667 sq km and a population of 1,454,867. It is one of the least densely inhabited countries of Africa. It is endowed with a lot of mineral resources such as petroleum, uranium, phosphate, manganese, diamond, zinc, marble, niobium, and also very precious timber. It is inhabited mainly by about 40 Bantu ethnic groups, among which the Fang number around 30.9%.

 

 

Form of the state

 

Gabon is a unitary state. It is divided into three levels of administrative units: 9 provinces, 47 divisions, and 26 sub-divisions or districts. The capital is Libreville and the urban population is 85%. The currency is the franc. It is part of Communautaire Financière Africaine (XAF) with five other central African neighbouring countries. The currency is placed under the responsibility of the Bank of Central African States (BEAC).

 

 

Historical Note

 

Before becoming a French colony, the Atlantic coast of this territory was constantly visited by the Portuguese since 1472. Since 1600 Dutch also took interest in the territory as slave trade was practiced with coastal local ethnic sovereigns, particularly the Mpongwe as intermediaries. Conflicts erupted from time with the Dutch on the control of the coastal islands and mainland but no exploration of the interior was carried out. Exploration and penetration by the church effectively started in 1839 when the king of the Mpongwe signed a treaty for protection with the French. In 1849, BOUËT Willaumtz settled slaves liberated from a captured slavery ship on a place he called Libreville (Freetown) earlier called Baraka on which American missionaries from New England settled in 1842. In 1850, an American (Paul du CHAILLU) started exploring the interior and the French intensified it starting in 1862. More French explorers went deeper into the land and signed treaties with tribal chiefs. In 1886, the consolidated territories were made a French colony by decree. As a colony, Gabon became as of 1910 part of the federation of four colonies known as “French Equatorial Africa”. When France was occupied and politically divided in 1940, French citizens living in Gabon fought a brief battle which ended in favour of the Gaullists and Gabon joined the allies. After the war, Gabonese started a struggle for independence. Jean-Hilaire AUBAME created a political party known as the “Union démocratique et Sociale du Gabon” and was the first Gabonese elected to the French National Assemble in 1946. In 1956, Léon MBA was the first Gabonese elected as mayor of Libreville. In 1958, an internal autonomy was given to Gabon within the framework of the then French Community. Independence was granted on the 17th August 1960. In February 1961, Léon MBA was elected President. Because of alleged fraud over his re-election in 1964, he was overthrown by the army in favor of Jean-Hilaire AUBAME, but French troupes re-installed him. He was re-elected in March 1967 then died in November 1967 and was replaced by the vice-president Albert Bernard BONGO. He was an ex-service man of the French army and intelligence. In 1968, he installed a one-party State in favor of his party “Parti Démocratique Gabonaise” (PDG). In 1973, he became a Muslim and took the Name of Omar BONGO. He has since dominated the political life of Gabon even after the return to a multiparty system under pressure in 1990.  Now called Omar BONGO ONDIMBA, he is the longest serving African head of state.

  

 

Structure of Government

 

The Constitution adopted in 1961 has been profoundly modified, and even reformed since 1991. It lays down a number of fundamental rights in favor of citizens but above all the organization and functioning of the three main branches of government.

 

Executive

There is a presidential system but it is formally called semi-presidential, with a President (head of State) elected by direct popular vote for a seven-year term (no limits). The executive branch is the most powerful of the three branches. The President appoints a vice-President who is answerable to him alone and can not become president in case of vacancy. The President also freely appoints a Prime minister who is theoretically head of Government as he proposes members of the Cabinet for appointment by the President. 

 

Legislative

The legislative branch has a bicameral Parliament. The Senate consists of 91 seats elected for six-year terms by members of municipal councils and departmental (or divisional) assemblies. The National Assembly consists of 120 seats. Members are elected for a five-year term by direct popular vote. The legislative branch shares the right to initiate new laws with the executive.

 

Judiciary

The judicial power is exercised by supreme courts, appeal courts, and lower courts. The judiciary branch was profoundly modified and developed by the constitutional reform of 1991. It comprises of a number of autonomous specialised supreme courts: the Judicial Supreme Court, the Administrative Supreme Court, the Accounting Supreme Court, the Constitutional Supreme Court, and Court of State Security.

 

Judicial Supreme Court (Cour de Cassation)

This is the Supreme Court which in French is referred to as ordinary affairs. It has jurisdiction on criminal, social, commercial, and civil matters. It is divided into four chambers, each specializing in one of the areas of jurisdiction mentioned above. It receives cases in the last instance from appeal courts. Immediately below it are Appeal Courts (Cours d’Appels), the grassroots courts of the first instance, and high courts (tribunaux de première et grande instance).

 

Administrative Supreme Court (Conseil d’Etat)

This is the Supreme Court in administrative litigations or judicial review of the activities of the Executive and other public law bodies. It also has advisory jurisdiction which allows the government to refer drafts of laws and regulations for legal advice before sending them to Parliament or to cabinet for signature.

 

Accounting Supreme Court (Cour des Comptes)

This is the accounting court with jurisdiction to audit accounts of government and other public and semi-public bodies. It also has jurisdiction to adjudicate on all conflicts arising as the auditing of such bodies and to sanction the authorities concerned notwithstanding possible criminal investigations and prosecutions.

 

The Constitutional Court

Its new organization and jurisdiction was laid down by the 1991 constitutional reform, making it one of the most important Courts to support the rule of law. It is made up of nine judges appointed by: the President of the Republic (3); the President of the Senate (3) and the president of the National Assembly (3). They have tenure of seven years, renewable once. The Constitutional Court has jurisdiction on: the control of the constitutionality of laws before promulgation upon referral by the head of state, or the president of one or the other cameral of Parliament. For law already promulgated, citizens may raise their unconstitutionality before any lower court which has the obligation to make a referral to the Constitutional. It also has jurisdiction on all electoral litigations, all matters concerning individual fundamentals rights and public liberties, the interpretation of the constitution, and arbitration of conflicts of jurisdiction arising amongst the state’s highest institutions, particularly between the executive and the legislative branches of government.

 

The Court of State Security

This is not a permanent court, but can constitute for the impeachment of the Head of state, high treason, or violation of oath taken as President of the Republic. It may try on criminal grounds the Prime minister and members of the Cabinet and also Presidents and vice-presidents of the chambers of Parliament.

 

 

Applicable Law

 

The Gabonese legal system draws inspiration from the French civil law system and customs. Today, Gabon’s applicable law can be traced at three levels: the national legislation, regional legislation, and international treaties.

 

National Legislation

National legislation in civil, criminal, and social matters is either maintained by some of the laws inherited from the French colonisation or has been modified to take care of customary laws. Access to the Gabonese national legislation is not well organized. Nevertheless, libraries and documentation centers below can be of help. The Gabonese official websites such as Internet Gabon and Gabon.net may have some pages of national legislation.

 

The Official Gazette

Gabon has an Official Gazette known as Journal Officiel de la République du Gabon. It started appearing in 1959. It is published by the services attached to the presidency and is known as Direction des publication officielles. It appears only in print form.

 

There are two administrations located in Libreville from which one can consult the full collection starting in 1959:

 

  • The documentation centre of the National Assembly: You may be able to obtain copies upon request: (241) 76 23 69/76 22 64
  • National Archives. Some of the Gabonese law can be obtained using the various websites indicated in this article. It is regrettable for us and even for Gabonese lawyers that access to legislation is not systematic and that you need to go to many sources to be able to gather material even for one case.

 

The Civil Code

As is the case of most ex-French colonies, the Civil Code of 1804 is the reference document of all aspects of the legal system which is not criminal. The civil code was introduced in colonies as far back as 1833. It comprises the basic rules of family law, the status of persons, inheritance, donation, trust, torts, and contracts. At independence, Gabon continued using the code as updated by the French in 1960 with the ambition of gradually adjusting it to local realities. Since then, only two parts of the code have been voted on:

Part one: Law n° 15/72 of 29 July 1972 and subsequent modification;

Part two: Law n° 19/89 of December 1989

To access it, please visit CoopGabon.net.

 

Regional Economic, Monetary, and Business Law

 

Gabon is member of regional organizations whose missions are to harmonize and unify the economic, monetary, banking, and business laws. A good number of such laws are already applicable in member countries including Gabon.

 

Regional Economic and Monetary Law

Gabon is member of CEMAC (Economic and Monetary Community of Central Africa States). Created in 1994, CEMAC is in fact a renovation of UDEAC, a custom union created in 1964. It has adopted a good number of common rules in the domain of custom law, anti-competition law, transport, maritime transport, etc. CEMAC has a regional court of justice. Most of these legal instruments and information can be easily downloaded from the CEMAC pages. For banking regulation and licensing in the CEMAC zone, there is COBAC, which is the banking Commission and a specialized institution.

                 

Regional Business Law

Gabonese business law is part of the uniform business law produced by the organization for Harmonization of Business Law in Africa (in French, OHADA). Created in 1993, it involves all French speaking African states. The organization has a number of permanent structures from which adequate information can be obtained:

·       Main website

·       National correspondence for Gabon

·       Ministerial Council: B.P. 547 Libreville, Gabon

·       Permanent Secretariat: B. P. 10071 Yaounde, Cameroon

·       The Common Court of Justice and Arbitration (CCJA) for adjudication of cases arising from the application of the business law: 01 B.P. 8702 Abidjan, Côte d’Ivoire

·       The regional school of Magistracy (ERSUMA) for the training of judges from member states: 02 B.P. 353 Porto-Novo, Benin

 

Insurance Law

Gabon is member of the Inter-African Conference on Insurance Markets (in French, CIMA). It is in charge of the regulation and licensing of insurance companies.

 

International Treaties Law

Gabon does not recognize the compulsory jurisdiction of ICJ. International treaties ratified by Gabon are applicable in administrations and courts without further incorporation in an act of Parliament. Such instruments are superior to national legislation in case of conflict. Intellectual property is protected in Gabon as it is a member of both WIPO and OAPI.

 

 

Legal Education and Legal Profession

 

Legal Education

Legal education in Gabon is the responsibility of Universities and professional higher schools. Admission for undergraduate law students is upon graduation with success in high school and obtaining admission into the faculty of Law and Economics. The first degree is obtained after three years (licence en droit), the post graduate studies are more selective and can lead students to Maîtrise, DEA, and doctorate degrees.  Graduates with at least a first degree can be admitted into professional school for the public service or legal professions.

 

Legal Profession

The legal professions are limited to those of advocates, public notary, sheriff bailiffs, and corporate legal advisers. Access to these professions is more or less regulated by the members of the profession with the supervision of the ministry of justice. Judges are recruited upon graduation with at least a first degree for two years of training and internship in the National School of Magistracy.

 

 

Legal Information

 

Libraries and Documentation Centres

 

Permanent Secretariat of the Government

B.P: 91 Libreville; Telephone (241) 77 47 70; Fax: 76 58 38

 

National Library & Archives

B.P. 1188/2188 Libreville; Telephone (241) 73 72 47/73 25 43/73 02 39. Fax: (241) 73 28 71

 

National Assembly

B.P 29 Libreville; Telephone: (241) 76 22 64/76 11 88; Fax: (241) 72 61 96.

 

The Constitutional Court

Telephone: (241) 72 57 17; Fax: (241) 77 43 72

 

National School Administration and magistracy (ENAM)

B.P. 775 Libreville; Telephone: (241) 72 00 06

 

Ministry of Labor

B.P. 2256 Libreville; Telephone: (241) 72 37 24

 

Ministry of Public Service

B.P. 469 Libreville; Telephone: (241) 76 15 27

 

Faculty of law

Telephone: (241) 73 29 16

 

Online Information

 

Business Law

http://www.ohada.org

http://www.ohada.com

 

Regional Law on Economic and Monetary Law

http://www.izf.net

 

General Legal Information in Francophone Africa

http://droit-francophonie.org

http://www.juriscop.org

http://www.jurisint.org

http://www.droit-afrique.com

http://www.afrilex.u-bordeaux4.fr

 

 

Selected Bibliography on Gabon

 

Taxation codes (les codes des impôts) annual edition, with all important legal instruments on taxation. Editor: Droit Afrique, collection: les codes des impôts. 2006 edition, 336pp.

                  AKENDENGUE, Matin

L’Organisation de la justice administrative du Gabon. Les juridictions administratives dans le monde France – Afrique, in La revue Administrative, Numéro spécial N0 6, Puf, 1999, p 43 – 48.

BIGNOUMBA-MOUNDEMBA, Etienne

Le système politique gabonais

TALENCE : S.N., 1992, -489P

KOMILA A IBOANGA, F.

La résistance du pouvoir à l’instauration de la démocratie pluraliste en Afrique : le cas du Gabon. Revue Juridique et Politique Indépendance et Coopération. Vol. 45. N0 1. 1991. –P 10-23

                  GAULME, F.

Le Gabon à la recherche d’un nouvel ethos politique et social

Politique Africaine. N0 43. 1991. –P 50-62

JOHN-NAMBO, Joseph-Marie

Les enjeux de la construction de l’Etat du Gabon : essai d’anthropologie et d’histoire du droit.

Paris : Université Paris I, 1991, -491P.

PIE, Frédérique ; LE ROY, Etienne

Les politiques pénales en Afrique noire francophone : le cas du Gabon

Bordeaux : CEAN, 1989, - 195P.

REMONDO, Max ; GONIDEC, Pierre-François

Le Droit administratif gabonais.

Paris: LGDJ, 1987, -303P