UPDATE: Guinean Legal System and Research
By Ibrahima Sidibe
Ibrahima Sidibe is Professor of Law at the University of Lansana Conte of Sonfonia-Conakry, Departement Droit Public Et d'Anglais, Centre Universitaire de Kindia, Kindia, Republique de Guinee, West Africa.
Published April 2012
See the Archive Version
Table of Contents
The new Guinean Constitution has 162 articles regrouped in 19 titles (Chapters). This Constitution that was adopted after the death of Guinea second president, General Lansana Conte on December 22nd, 2008 and the ensuing takeover by the army led by Captain Moussa Dadis CAMARA few hours later, asserts Guinea’s adhesion to the ideals and principles of the United Nations, the Universal Declaration of Human Rights, the conventions and international covenants on human rights, the Constituted Act of African Union, the African Charter of Human and Peoples’ Rights and its additional protocols relating to human rights as well as the revised treaties of ECWAS and its protocols of democracy and good governance. It guarantees the separation of powers and dedicates 22 articles to the rights and duties of the citizens. It provides for the possibility of the National Assembly being dissolved by the President of the Republic. It marks the beginning of Guinea’s third Republic. This Constitution, as mentioned before, provides for the separation of the powers of Government. As it will be observed, there are discrepancies in this separation, hence the necessity of discussing the powers of the Government.
It is led by the President of the Republic who is elected for five years renewable once and a Prime Minister.
His status and prerogative are provided by the Constitution
He is the first personality of the State; he is politically no responsible for acts accomplished in exercise of his duties. He can only be brought to justice (before the High Court of Justice) for high treason (Haute trahison). In case of vacancy of power (for impeachment, physical incapacity or death), the President of the National Assembly (the Speaker of the Parliament) takes over as the interim President. If the latter is also impeached, physically incapable or dies, one of the four Vice-Presidents of the National Assembly by order of precedence is designated to be the interim President.
The interim President will exercise the power for not more than sixty days during which fresh Presidential election will be held. Within that period, the Interim President cannot hold any referendum; he can neither dissolve the National Assembly nor take the initiative of the constitutional amendment. He cannot exercise the Presidential pardon.
The former Presidents of the Republic come after the President in Office in official ranks. They are, by right, members of the Economic and Social Council.
He is the custodian of the Constitution, the guarantor of the national independence, territorial integrity and the respect of international treaties. He appoints Guinean diplomatic representatives and receives foreign ambassadors accredited in Guinea. He is the head of the army and exercises exceptional authorities. He can submit to referendum bills in limitedly determined areas for adoption. He can take the initiative of bills to be submitted to the parliament and the constitutional review. He appoints and dismisses Ministers and other administrative officials; determines and conducts general policies of the nation. He has at his disposal the authority of regulation He can dissolve the National Assembly once certain conditions are met. He has authority of executive clemency. He is the President of the Superior Council of the Judges. He has the authority of sizing the Supreme Court for the control of constitutionality of laws. He appoints the President of the National Council of the Communication as well the President of the Economic and Social Council. His Mandate is incompatible with any other occupation, be it public or private.
The Prime Minister, the Head of the Government, is appointed by the President of the Republic and can be revoked by the same. The Prime Minister is responsible of leading, supervising, coordinating and impelling the actions of Government of which he proposes the structure to the President of the Republic.[] In the Constitution of the second Republic, the position of the Prime Minister was not provided even though several official have been appointed as Prime Minister. A jurist consult, M. Alhassan Makanera KAKE stated that the constitutional practices in Guinea combined with the interpretation of article 39 gives the constitutional ground for the post of Prime Minister in Guinea.[]
This Article stipulates that the President of the Republic appoints Ministers…He can determine by decree the prerogative of every Minister. He can delegate part of his authorities. The ideologists interpreted this article as allowing the President of the Republic to appoint a Prime Minister to assist him in carrying out his responsibilities.
The constitutional practices show that Prime Ministers have been appointed without the position being provided by the Constitution through the constitutional practice are the following: Lansana BEAVOGUI appointed by the Presidential decree 113/72/PRG of April 26 1972, he was not the Head of Government. After the change of Regime in 1984 through a Coup d’Etat, a Prime Minister, Head government was appointed, he was Diarra TRAORE. The post was to be scratched out on December 18, 1984 to be re-established by Presidential decree n# D96/098/PRG/SGG of July 9, 1996, naming Mr. Sidia Toure the Prime Minister, in charge of Economy and Finance portfolio. Later in 1999, a new Prime Minister, Lamine Sidime, was appointed only to be responsible of coordinating the actions of the government. In 2004, another Prime Minister, Francois Lounseny Fall, was appointed but resigned few months later. He has been followed by Cellou Dallin DIALLO.
All these Prime Ministers except the one before the adoption of the Constitution, as observed, were appointed on the ground of article 39. But Lansana Kouyate appointed Prime Minister at the beginning of the year 2007 as part of the deal that ended the general strike that, according to the report of Human rights organizations, claimed about 183 lives including largely among civilians. It was called up by the main Trade Unions. The agreement reached on the January 27, 2007 quelling the unrest provided for the appointment of a Prime Minister, Head of government. He was replaced one year and half after by Ahmed Tidiane SOUARE in June 2008.
After the death of the President of the Republic, General Lansana Conte, and the subsequent overthrow of the Government, Captain Moussa Dadis CAMARA appointed Mr. KOMARA as Prime Minister and Head of the Government.
Under the present Constitution, the position of Prime Minister is guaranteed. Article 52 stipulates that a Prime Minister and head of Government be appointed by the President of the Republic. After the election of the present President of Republic, the Professor Alpha Conde, Guinea has a New Prime Minster, Mohamed Said Fofana.
the authority of the President of the Republic, the General Secretariat of the
Presidency of the Republic's missions are: the implementation of government
policy in the areas of operation and coordination of activities of the
Presidency of the Republic. It supports the Head of State in his mission of
conception and orientation of the general policy of the nation, control government
action and ensures the proper functioning of public authorities and the
continuity of the State.
Under the authority of the President of the Republic, the General Secretariat of the Government's mission is to support the Prime Minister and Head of Government in the coordination of government action.
such, it has particularly:
- To organize, manage and monitor the governmental work and procedural laws and regulations - to control the legal form of draft laws and regulations - to ensure the physical formality of enactment and publishing legislative and regulatory texts - to ensure in his fields of competence, liaisons with the Ministerial Departments, the National Assembly, the Supreme Court and the Advisory Bodies - to centralize all acts of the Government and ensure their publication in the Official Gazette and / or report - to establish schedules for mission abroad for members of the Government and the State agents.
The Secretary General of the Government, appointed by Decree of the President of the Republic, provides leadership, coordination and monitoring of services;
The Secretary General of the Government attends the Cabinet meetings in an advisory capacity, draw up minutes and, issues an extract to Members of the Government. In conjunction with the Department of Communications, the Secretary General of the Government prepares press releases at the conclusion of Cabinet meetings.
Secretary General of the Government is assisted by a Deputy Secretary General
who acts as a replacement or substitute in the event of the absence or
incapacity. The Deputy Secretary General of the Government who is appointed by
Decree of the President of the Republic.
The General Secretariat of Religious Affairs
Secretariat General of Religious Affairs has the following missions: the
conception, development and implementation of government policy with regard to
As such, it has particularly:
- To promote religious culture - to promote the development of religious infrastructure - to invite the faithful believers to meet their obligations - to organize pilgrimages - hold festivals and religious ceremonies - to oversee the implementation of religious rules and prevent all doctrines and religious practices with deviationist characteristics - to ensure the preservation of the purity of faith, peace and social tranquillity; - to participate in the fight against social plague and encourage the development of religious virtues - to participate in the strengthening of the moral and civic education of citizens - to organize and participate in religious meetings - to prevent and manage conflicts of a religious - to promote and streamline the activities of NGOs and religious associations.
As main reason of separation powers, the Executive powers cannot make the law it applies. That could lead to dictatorship. Laws they deemed to apply are made by another institution. It will be the subject of the next discussion.
The legislative power is exercised in Guinea by the National Assembly, whose members are called ‘Deputes.’ Members of Assembly are elected through universal suffrage for five years renewable. 1/3 of them are elected through proportional poll from party’s national list. 2/3 are elected on majority poll system with single.
To be elected member of the National Assembly the Electoral Code set the following established by the Transitional National Council un the interim government led by General Sekouba KONATE set the following conditions:
a Be presented by a political party legally constituted;
b Be over twenty-five years of age;
c Every member of the National Assembly represents the country as a whole []
Are absolutely ineligible, the insane and State assisted persons. Are relatively ineligible, the Prefects, sub-prefects and their deputies, General Secretaries of Prefectures, treasurers, judges exercising in the constituency where they are in function for at least one year. The incompatibility concerns also members of the Economic and Social Councils and State functionaries while exercising their functions.
This institution has its own organization by which it functions.
The internal structuring of the National Assembly is provided by its Internal Regulation Act, which is established by an Organic Law []. It determines the structure of that Institution, the number and the mode of designating of parliamentary commissions, rules governing the debates etc...[]
As mentioned above one third of the MPs are elected through uninominal (single-seat) of single round polling system, the two third are elected on the party national list (proportional polling).[]
1 Uninominal with single round poll
Here, electors vote for only one candidate of their choice because a ballot cannot carry more than one name. The candidate winning the majority (be it simple majority or absolute majority) of voters is elected.
2 Proportional representation of national list poll
The 2/3 (78) of MPs are elected through this mechanism. Every political party presents a list of candidates equalling the number of the seats to be filled. The voters vote for the list of their political parties. The parties will be represented according to the percentage of votes they won during the election.
To determine the number of MPs won by party, they calculate the electoral quotient, which is equal to the number of votes expressed, divided by the number of seats provided. If after the operation there are remainders of votes non-ascribed, there are two methods of allocating that rest to parties: the method of the ‘largest remainder and the method of ‘largest average.’ Guinea, considering the second method more complicated, opted for the first one, the method of the ‘largest remainder.’ Here, after the operation of division, the party, which obtained ‘the remainder’ closer to the electoral quotient (the number of vote equivalent to a seat), will receive the seat.
Members of the National Assembly are protected by two sorts of immunity: while exercising their duties, they are protected by the immunity known as the parliamentary irresponsibility; and when they are exercising their functions, they are protected by the parliamentary inviolability. However, this immunity can be lifted by the National Assembly when necessary, after respecting certain conditions. []
Like the Executive power, the Legislative power has its attributions.
The National Assembly passes ordinary laws as well as the annual budget of the government. It controls the Executive power in its management of public funds and other State affairs; 1/10 of its Members have the rights to refer to the Constitutional Court for the control of constitutionality of government actions. It passes regulations, notably its internal rules such as the Internal Regulations Act.
For an in-depth analysis of this aspect, it is necessary to discuss successively the agenda of the session, the debates and the system of voting.
National Assemble meet in ordinary session two times a year: the first session start April 5th and cannot exceed ninety days. The second session starts October 5th and cannot exceed ninety days. If those two days are holydays, the session will start on the next working day. []
It can meet in special session either at the initiative of the President if the Republic or by the majority of the MPs
There are two types of legislative procedures: ordinary procedure and special procedure.
Ordinary legislative procedure
This procedure concerns the elaboration of laws the domain of which is determined by article 59 of the Fundamental Law. It is composed of steps:
The initiative of law belongs concurrently to the President of the Republic and the MPs. When an initiative is taken by the President of the Republic, it is referred to as ‘project of law’ (projet de loi); and when it is initiated by the MPs, it is referred to as ‘proposal of law’ (proposition de loi). Be it project or proposal of law, the bill is submitted to the National Assembly for discussion and eventual adoption through the methods discussed (see 3 below).
When the bill is passed by the National Assembly, is transmitted without delay to the President of the Republic for promulgation. The promulgation is the assertion by the Executive that it recognizes the said law and can consequently apply it, for it enters into force.
The President of the Republic has ten days to do that. The deadline starts running from the eighth day after the transmission of the law. If he does not, subject to article 63 and 64 of the Fundamental Law, the new law enters into force.
To this ordinary procedure can be added a special procedure as discussed below.
It mainly concerns constitutional laws and organic laws.
Referred to as constitutional laws those laws that amend, abrogate or complete the provision of the Constitution. According to article 91 of the Fundamental Law, the initiative of constitutional review can be taken concurrently by both the President of the Republic or the MPs.
The proposed review once adopted by the National Assembly cannot immediately enter into force unless approved by the people of Guinea through referendum. However, the proposed review initiated by the President of the Republic may not be submitted for referendum if the President of the Republic so requests and approved by 2/3 of the MPs. It is the same for the proposed review initiated by the MPs and that has acquired the approval of the President of the Republic.
There can be no procedure of review when the country is totally of partially under foreign occupation, during state of emergency or state of siege. Moreover, the secular nature, the republican form of the State as well as the separation of powers cannot be subject to any constitutional review.
Falling under the same category of procedure are the organic laws.
The organic laws are provided for by the Fundamental Law for special matters. According to its article 67, organic laws cannot be amended but by the 2/3 majority of the MPs present. They can neither be promulgated before the Supreme Court to which they are necessarily submitted, has declared them to be conform to the Fundamental Law.
There is a third and last special procedure; it concerns the National Budget.
The law allowing the realization of the National Budget is voted by the National Assembly. The conditions concerning the national budget are provided by the article 61 of the organic law of the Internal Regulation Act, article 68 of the Fundamental Law for the initiative of the budget and article 69 for its amendment.
However, the government has several means at its disposal to withstand the amendment of its proposed budget. For instance, article 69 of the Fundamental Law declares non-receivable any proposition of amendment that reduces public revenue or worsens public expenditure.
Article 65 of the Internal Regulation Act allows the government to set aside any untimely parliamentary initiative of amendment of the proposed budget. This means that the government can oppose to any discussion of parliamentary amendment and initiative that was not submitted to the relevant Commission prior to the plenary discussion.
Every aspect of the elaboration of the Budget is performed within a time limit
The discussion of the bill obeys strictly to determined timetable. In principle, the bill must be filed to the Bureau of the National Assembly and distributed to MPs on the day of the first Tuesday of October of the year that precedes the year of the realization of the budget. Those documents are in the blue color. [] The National Assembly must vote the budget within sixty days after the reception of the bill.
The bill is first discussed in specialized commissions, as mentioned before, established at the beginning of the session. The Commission of Finance, which takes part in every meeting with Ministers, examines aspect related to expenditure and then the one related to resources before submitting it to the plenary session for voting.
If after sixty days the budget is not voted, it enters into force by Presidential decree taking into account the amendment suggested by the National Assembly and accepted by the President of the Republic.[]
ii Voting the Budget
There are certain weaknesses in the law governing the procedure of voting the Budget: nothing indicates which part of the Budget should be discussed in the first place (resources or expenditure?); there is no possibility for the President of the Republic to order the National Assembly to vote the entire Budget at once (in bloc.)
The ceremony of voting starts by an introductive speech of the President of Commission of Finance immediately followed by the general report. The following authorities are required to be present through out the session: the Minister of Economy and Finance, the President of the Commission of Finance, ad hoc General Rapporteur. The other Ministers are not obliged to be president everyday, but they must be present whenever their particular departments are concerned.
The Debate starts by the general discussion about the exposé of the general report. Every speaker expresses his observation and critics. After the discussion, the National Assembly passes to vote. Here, the modality of voting varies according as they are about the resource or the expenditure.
For the resource, the voting is by Chapter for the General Budget; by Annex Budget for Annex Budgets and by categories of special account of treasure for special accounts of treasure. For the expenditure the voting is a unique vote for voted expenditure of the previous year (Services votés), and by Chapter for the new authorization (new expenditure) likewise for the Annexes and special accounts of treasure.
-Legislations voted or amended by the Guinean lawmakers are numerous. The most prominent are the following:
-Loi L 95/023/CTRN du 12 janvier 1995, Code de la Marine Marchande de Guinee (Law L 95/CTRN of January 12, 1995, creating the Merchant Marin Code of Guinea) published in the Official Gazette of June 25 1995;
-Loi 98/034/CTRN du 31 Decembre 1998 portant Code Civil de Guinee (Law 98/034/CTRN of December 31 1998 creating the Civil Code of Guinea) published in the Official Gazette of January 10, 1999
-Loi 98/035/CTRN du 31 Décembre 1998 portant Code de Procédure Civile de Guinee (Law 98/035/CTRN creating the Code of Civil Proceedings of Guinea) published in the Official Gazette of January 10, 1999
-Loi 98/036/CTRN du 31 Decembre 1998 portant Code Penal de Guinee (Law 98/036/CTRN of December 31, 1998 establishing the Penal Code of Guinea) published in the Official Gazette of January 10,1999;
-Loi 98/037/CTRN du 31 Decembre 1998 portant Code de Procedure Penale de Guinee (Law 98/037/CTRN creating the Code of Penal Proceedings of Guinea published in the Official Gazette of January 10, 1999)
-Ordonnance 003/PRG/SGG/88 du 28 janvier 1998 portant sur le Code de Travail (Ordinance 003/PRG/SGG/88 of January 28, 1998 creating the Code of Labor) published in the Official Gazette of February 10, 1988.
To control the correctness of application made by the Executive Power of laws passed by the Legislative Power, another is institution is created by the people of Guinea at the image of other nations where rule of law is the principle.
According to article 107 of the new Constitution, the Judicial Power is exclusively exercised by the courts. Because of their differences, they will be discussed separately.
The Constitutional Court is the competent tribunal in matters relating to the Constitution, the elections and rights and fundamental freedoms. It decides on constitutionality of laws as well as the conformity of international treaties with the Constitution. It also gives a ruling on redress sought against the acts of the President of the Republic. No other means of redress exist against its ruling.
The Constitutional Court is composed of nine members at least over the age of 45 years chosen for their good morality:
- Two designated respectively by the Bureau of Assembly and the President of the Republic;
- Three judges of twenty years of experience at least designated by their peers;
- One lawyer having at least twenty years of experience;
- One university lecturer holding an LLD in Public Law and at least having twenty years of experience designated by his peers;
- Two representatives of the Independent National Institution of Human Rights known for their long human rights experience.
The mandate of the members of the Constitutional Court is nine years non-renewable and his president is elected for the same period of time by his peers. They are irremovable during their mandate. They can neither be prosecuted nor arrested without the permission of the Constitutional Court unless they are caught in the very act.
In case of criminal offence by a member, he is brought before the Supreme Court. []
The Constitutional Court, which now replaces the Supreme Court on all constitutional and electoral matter, will have as sole reference the jurisprudence of the latter. Even though that jurisprudence is relatively poor on constitutional matters, some decisions worth mentioning: the decision 93/004/CS/CCA of October 28, 1993 concerning the challenge to the candidacy of General Lansana Conte (the actual President) to the Presidential election of October 5, 1993 launched by M. Bah Mamadou, Presidential candidate of Republican National Union (UNR). Published in the Official Gazette of November 10, 1993.
Decision 002/CS/CCA of July 25, 1996 concerning the challenge to the Organic relating to the protection and benefits of the former Presidents launched by M. Bah Mamadou, leader of UNR, published in the Official Gazette of August 10, 1996.
However, it is relatively rich in civil and criminal matters which can read in the Bulletin de la Justice Guinéenne’ (Bulletin of Guinean Justice) ‘Recueil des Decisions des Courts et Tribunaux avec Commentaires’ (Compendium of Decisions of courts with Comments)
The Supreme Court is placed at the top of the hierarchy of the Guinean courts in administrative and judicial matters.[] It has been known by various names: Superior Tribunal of Cassation from 1959 to 1983, Supreme Court in 1984 and 85, National Chamber of Annulment in 1986 to 1990, and Supreme Court since then.
The role of the Supreme Court is to ensure the uniformity in the interpretation of Guinean legislations. It sits on the judgments pronounced by other courts except those of the Constitutional Court. It is, therefore, not concerned with the acts that constitute the source of the dispute before it, but the issue of interpretation given to the law raised by the parties to the suit. Its mission is to ensure that the law is properly interpreted by the lower courts. It is not a third degree court. Its mission is to see whether the law was properly applied to the case or not.
The establishment, attributions, organization and functioning of the Supreme Court are provided by an organic Law.
Members of the Supreme Court enjoy the security of tenure in office meaning that they cannot be removed at will. They can only be prosecuted before the civil, criminal and commercial Chambers of the same court following an authorization and upon the instructions of the General Assembly.
At the structural level, the Supreme Court is composed of two Chambers, namely:
This Chamber is composed of one President who is in fact the First President of the Supreme Court, at least four Councillors, the Solicitor General and his Deputies. It gives rulings on, among others, the constitutionality of law and international accords, matters relating to Presidential and legislative elections including the question of their regularities, executive excesses, conflicts of jurisdiction between the Executive and the Legislative powers.
Civil, Penal, Commercial and Social Chamber
This Chamber is composed as the same manner as the Constitutional Chamber except that its President is not the First President of the Supreme Court. It gives rulings on appeals for annulment launched against the decisions of other courts pronounced in last resort in civil, penal, commercial and social matters, the transfers of matters from one court to another, the prosecution of a judge, (prise à partie), and conflicts of jurisdiction between different courts.
Court of Accounts
This Court is composed of a President of Chamber, two Councillors, Referendary Judges whose number is determined by the Ordinance of the First President of the Supreme Court on request of the President of the Chamber and Solicitor General with his Deputies. It gives rulings on reckonings of public accountants, the management of funds and the accounting of every institutions receiving stating funding.
This judicial system is marked by the existence of various categories of courts: ordinary courts, the special courts and administrative organs of judicial characteristics.
These courts have a general jurisdiction, meaning that their jurisdiction covers all matters except those excluded by special laws and conferred to other courts. They comply with the double-degree principle.
There are courts of first instance; this means that they are courts before which cases are brought in the first place. Their jurisdictions are determined according to the monetary values of the interest of the case before them. They are:
The reform of 1986[] laid the ground for the legislator to create a Justice of the Peace in every prefecture of the country. And the law n#021,[] like the precedent, stipulated that the jurisdiction of a Justice of the Peace covers the Prefecture in which it is established and retained 26 Justices of the Peace in the country.
Article 61 of law n# 021 provides that Justice of the Peace is headed by a President, who is a ‘unique judge. [] That judge assumes at the same time the functions of Judge, the Prosecutor and Examining Magistrate. There can also be one or several surrogate judges or Examining Magistrates appointed in a Justice of the Peace.
The jurisdiction of the Justice of the Peace is the main difference between it and other courts. Subject to particular legislative provisions or rules, Justice of the Peace is competent in all matters except those involving the Administration. [] Therefore, it has jurisdiction in both civil and penal cases.
- Jurisdiction in civil and commercial matters
According to Article 63 of law n# 021, Justice of the Peace deals with every civil matter and commercial matters in first resort (with possibility of appeal) the value of which does not exceed fifty thousand (50,000) Guinean francs. However, according to the same provision, this amount can be amended by Presidential Decree taken on proposal of the Minister of Justice.
Moreover, in addition to the procedures of injunction to pay and to do, provided by the code of civil proceedings, the jurisdiction of the Justice of the Peace extends, in first resort, to all action-at-law related to the capacity of individuals. Its jurisdiction also covers all requests of payment, review and suppression of alimony.
These jurisdictions of Justices of the Peace in civil and commercial matters go along with other jurisdictions, as it will be observed:
- Jurisdictions of Justice of the Peace in penal cases
Here the Justice of the Peace has double jurisdictions in minor offences called contraventions and misdemeanours. []
The Justice of the Peace deals with offences considered as contraventions.[]These offences are punished by an imprisonment for one to fifteen days, and a fine from ten to fifty thousand Guinean francs with possibility of seizing objects related to the reprehensible act.[]
However, Justice of the Peace is allowed to take cognizance of civil suit conjunctive to the prosecution engaged to punish offences, which fall within its jurisdiction whatever may be the values of the request.
There is another category of offence within the jurisdiction of Justice of the Peace, which is relatively more important. It is the offences referred to as misdemeanours. They are offences of breach of law punishable by maximal imprisonment of five years. These offences are normally conferred to the jurisdiction of the Tribunals of First Instance called in penal matters, Tribunals of Misdemeanour (tribunal correctionnel); court to be looked at ulterior.
However, acting as a court of exception, the legislature removed some misdemeanours from the jurisdiction of the Tribunal First Instance to be conferred to Justice of the Peace. Subject to the provisions of the Code of penal proceedings, Justice of the Peace deals with offences committed by minors within the limits of its territorial jurisdiction.[]
As it will be analyzed later, the decisions of first resort of Justice of the Peace are brought in appeal before the Court of Appeal. []
The Justice of the Peace is not the only court of the first degree, its jurisdiction, as observed before, is limited, ground for the existence of other jurisdiction of first degree for matters out of its reach.
The law n#021 after all the abovementioned amendments retained ten Tribunals of First Instance on the national territory of Guinea.[]These courts have their seats in Boke, Kindia, Mamou, Labe, Kankan, Faranah, N’Zerekore and three in the special zone of Conakry.[]
The special zone of Conakry was introduced in the legal organization by article 40 Paragraph 1 of the Presidential Decree n#031. This specialty can be perceived in the organization of Tribunals of First Instance.
For its structure, according to article 39 of the Law n#021, the Tribunal of First Instance is divided into two sections: Civil and Administrative Section, and the Penal Section.
By derogation to this article, according to the abovementioned Presidential Decree, the three Tribunals of the special zone of Conakry have three sections: Commercial Section, Civil and Administrative Section, and Penal Section.[]
Each section deals with matters falling within its territorial jurisdiction. The President of the Tribunal is responsible for its proper functioning. []
The derogation to article 39, as mentioned before, concerns only the jurisdiction of the Tribunals of the special zone of Conakry; it does not make any fundamental distinction regarding the composition of the tribunals.
With regard to their compositions, the Tribunal of First Instance is headed by a unique Judge. [] However, the principle of collegiality applies in social cases (labor matters). This composition is as follows: [] one President, one or several magistrates, one or several Examining Magistrates, and for the special zone of Conakry, one senior magistrate of Preliminary Examination.
The duty of the Examining Magistrate is to inform the accused of either the retention of charge against him or his acquittal.
The other members of the court are a Chief Clerk assisted by one or several Clerks; the Prosecutor Office is represented by a Public Prosecutor and one or several Deputy Public Prosecutors.
In view of the importance of the Public Prosecutor, his duties are herein below examined.
-Public Prosecutor assigns magistrates of his office to different sections of the tribunal at the beginning of the year. []
- He may review this assignment during the year, and if necessary, exercise by himself their duties,
- He is in charge of financial and logistic management of the tribunal. In that, regard he concerts with the President of the tribunal who is cosignatory of all acts of management. []
- He controls the execution of sentences within the jurisdiction of the Tribunal; supervises the work of the police officers of the Criminal Investigation Department, as well as the establishment of the police records.[]
- He pays periodic visit to police station in order to avoid unduly prolongation of preventive detention and custody. []
- The President and the Public Prosecutor of the tribunal carry out inspections in Justices of the Peaces in their jurisdiction. They (according to their respective responsibilities) ensure the proper administration of the judicial services and normal regulation of cases. They report on their observations, respectively, to the first President of the Court of Appeal, and the Solicitor General, Procureur General. []
- In case of absence or prevention, the Public Prosecutor is replaced by the senior Deputy Public Prosecutor according to the Act of appointment. []
These elements entering in the composition of the Tribunal of First Instance are engaged complementarily or in interaction for its proper functioning.
In their functioning, the Tribunals of First Instance have three kinds of sittings: the ordinary sitting, which is to make usual decisions within their jurisdictions [], the itinerant sittings taking place outside the seat of the Tribunal. However, it cannot be held outside the jurisdiction of the Tribunal. And the last type of sitting is the solemnly sitting, which takes place at the beginning of every judicial reopening. It gathers all the magistrates of the Tribunal.
It is worthy to notice that these sittings deal only with matters falling within the jurisdiction of the tribunals.
For its jurisdiction, being an ordinary court, the Tribunal of First Instance has a general jurisdiction with regard to every individual and every matter to the exception of those expressly attributed to the jurisdiction of another court.[] As such, it is competent:
- It has an exclusive jurisdiction in matters determined by the Code of Civil Proceedings. []
- It is also competent in other matters conferred to it by special Acts.
A Tribunal for children has been established near every Tribunal of First Instance, to the exception of the special zone of Conakry, which harbors only one for all the three Tribunals. It deals with conflicts related children within their territorial jurisdiction. [] Paragraph 1 of the same article 102 creates a Tribunal of Labor for the special zone of Conakry.
The Civil and Administrative Section is equally competent in social and commercial matters.
The Penal Section is to determine misdemeanours and contraventions committed by persons having reached their age of majority. The President of the Tribunal, who is responsible for its proper functioning, settles the conflicts of jurisdictions between the Sections. []
Both the Justices of the Peace and Tribunals of First Instance are courts of the first degree. According to the principle of double degree of courts, a decision pronounced by those courts can be taken in appeal to another court hierarchically superior. That is the court of the second degree.
In Guinea, the Court of Appeal is the only court of second degree. The law n#021, which organized it, created two Courts of Appeal in the country: one in Conakry, and the other in Kankan.[] Each of them has an attributive jurisdiction and a territorial jurisdiction covering two natural regions: []the Court of Appeal of Conakry covers Lower Guinea and Middle Guinea. Thus, it has under its command seven Tribunals of First Instance: Kaloum, Mafanco, Dixinn, Kindia, Boke, Mamou and Labe, with fourteen Justices of the Peaces. [] And the Court of Appeal of Kankan covers the Forest Region and Upper Guinea. It has three Tribunals of First Instance: Kankan, N’zerekore and Faranah, with twelve Justices of the Peaces. []
As it will be observed, their structure is different from that of Tribunals of First Instance.
For its Composition and structure, according to article 13 of the law n#014, each Court of Appeal is divided into three chambers: the Chamber of Accusation also called the First Chamber; the Civil, Commercial, Administrative and Social Chamber; and the Chamber for Misdemeanour.
By derogation to this article, article 14 of the same law n#021, provided for at least five Chambers for the special zone of Conakry with the existence of two separate Commercial Chambers.
Article 20 of the law n# 021 organized the Court of Appeal as follows: the President (the first President), the Presidents of Chambers, the Councillors to the Court, the Chief Clerk assisted by several Clerks, the Prosecutor Office is represented by Solicitor General the First Deputy Solicitor General, and other Deputy Solicitor Generals.
As provided by Article 29 paragraphs 1 to 5 of the Presidential Decree n#031, the functions of Solicitor General are the same as those of Public Prosecutor.
Likewise, the composition, the jurisdiction of the Court of Appeal is different from those of the courts of the first degree.
With regard to its Jurisdiction, according to article 8 of the law n#014, the Court of Appeal deals with:
n Civil, economic and social matters as well as the decisions on misdemeanour pronounced in first resort by Justices of the Peace and Tribunals of First Instance brought before it in appeal. It can also take cognizance of decisions pronounced by professional disciplinary organs or arbitrator’s awards according to the law or the will of the parties.
n Matter transferred to it by Supreme Court, after annulment. []
The Court of Appeal is Judge of exequatur of legal decisions pronounced abroad. The First President is Judge of exequatur of arbitrator’s awards. []
In order to carry out its different functions, the law n#021 provides that the Court of Appeal has three kinds of sittings: Ordinary Sitting, Solemn Sitting and General Assembly.
The Ordinary Sitting is the Sitting of judgement. It gives ruling on appeal lodged on decisions of courts under its territorial jurisdiction, and on transferred cases after annulment. Here the Court is composed of three persons: the President, the Clerk and the representative of the Prosecutor’s Office.
In case of prevention of the President of a Chamber, he is replaced on request of the First President, by another President of Chamber of the same court, or by the senior Councillor of the Chamber. []The law n#021 continues by stipulating that in case of prevention of a Councillor, he is replaced by another Councillor of the same Chamber, or on request of the First President, by another Councillor of another Chamber.
During the Solemn Sitting, the Court is composed at least of five members including the First President or his representative, the Solicitor General or his representative. It takes place in the First Chamber, all the Judges wearing red robes. It gathers for the followings occasions: case of taking issue with a judge, the swearing in of Judges, and the installation of members of the Court.[]The Court has no jurisdiction to rule in Ordinary Sitting over matters that should be dealt with in Solemn Sitting.
The Court of Appeal gathers for General Assembly for special purposes. It is called at the request of the First President of the Court. []It is responsible for various measures: establishing and amending the internal rules of the Court of Appeal and Chambers, ruling in appeal on decision pronounced by Council of the Bar Association and those of other auxiliaries of justice under its jurisdiction, as well as litigations on elections of different members of those Councils.
The responsibility of the First Presidents is quite preponderating in the Courts. Article 25 of the law n# 021 provides that the First Presidents are the organizers of the Courts, and as such they:
- Confer matters to Chambers and control the general role, appoint at the Sittings of the Presidents of Chamber or Councillors. They are the chiefs of the courts instead of the Solicitor General as it was the case during the first regime of popular courts. In this regard, they represent the court; invite the Presidents of Chambers and Councillors to public ceremonies. Like the Solicitor General, they have considerable administrative attributions in the evaluation and promotion of sitting judges of their Court, whereas, the standing judges are under the command of the Solicitor General.
- They settle conflicts of jurisdiction between the Chambers. They make, in agreement with the Minister of Justice, the judicial schedule of the Court. They hold hearings of summary procedures. They can preside over any Chamber if they feel necessary. [] When the President of a Court presides over a Chamber, the President of that Chamber sits as the First Councillor.[]In case of prevention, the First President is substituted by the senior President of Chamber, or Senior Councillor according to the Act of appointment.
All the ordinary courts have a common characteristic, their permanence. However, there is one that makes exception to this rule, the Court of Assizes. It is the Court of the ordinary law in cases of crime. Is defined as crime by the Guinean Penal Code an offence punished by infamatory or defamatory sanctions.[]There are two Courts of Assizes in Guinea: one located in Conakry and the other in Kankan: that means that their jurisdiction regularly covers that of the Courts of Appeal of those Cities. They do not sit permanently, in principle they hold their sitting once a year. However, due to circumstances and necessity of public order, they can sit more once, and out of their usual seats by the decision of the Minster of Justice.
The non-permanent nature of the Court is sustained by its composition. This Court is a collegial institution (decisions are taken by all the judges) and is composed of professional judges and a jury constituted by ordinary citizens. It is headed by a President designated by the First President of the Court of Appeal for every session among the Presidents of Chambers or Councillors of the same Court. The President of the Court of Appeal can exercise this function himself if necessary. The President is assisted by two assessors who must either be Judges of the Court of Appeal or magistrate of Tribunals of First Instances.
The jury is composed of four members called jurés, the jurors: [] They are appointed by Presidential Decree at the beginning of the year from a list of prominent personalities among the citizens.
The Solicitor General is from the Court of Appeal, and the secretariat is assumed either by the Chief Clerk or by any other Clerk of the same Court.
Since the court does not sit regularly, its jurisdiction is specific. As mentioned before, the Court of Assizes, in substantive issues, is competent in crime related cases transferred to it by the Chamber of Accusation of the Court of Appeal. It concerns itself mainly with crimes of ordinary law committed by people having reached their age of majority.[]Consequently, a person aged less than 13 years cannot be punished since such person is presumed by law to lack the capacity to commit criminal offences. The person only risks measures of protection, assistance and surveillance.
This jurisdiction is considerably extended under the principle of plenitude of jurisdictions according to which it cannot declare itself incompetent for any case referred to it by the Chamber of Accusation. [] The Court of Assizes is thus competent to pronounce on cases qualified as misdemeanour or contravention when they are connected or indissociable with a crime or when it concerns an offence occurring during the hearing. This may sometimes arise from an error of qualification by the Chamber of Accusation.
Similarly, the court can take cognizance of cases concerning minors over 13 years of age prosecuted for committing a crime. However, in such case, its composition changes to include the President of the Tribunal for Children or a magistrate for Children replacing one of the Councillors. The decisions of the Court of Assizes are liable of challenge before the Supreme Court.
The territorial jurisdiction of the Court of Assizes is triple: it can be where the crime has been committed, where the suspected criminal resides or where he as been arrested.
All of the abovementioned institutions are meant to determine all cases within their substantive jurisdiction and concerning every individual within their territorial sphere. However, the Guinean system has also other categories of courts that are in many regards different from each other.
These courts have specialized jurisdictions either with regard to the subject matter or with regard to the quality of the individuals concerned. They are different from ordinary courts. Each of these courts is discussed in foregoing parts of this discourse.
These are courts charged with the responsibility of determining matters relating to minors (people under 18 years of age at the moment when the offence was), especially in which they are offenders. These courts form a category of courts of exception. Therefore, their jurisdiction is confined within the limit of legislations that need to be strictly interpreted. They are the Tribunals for Children, the Court of Assizes for Children and Magistrate for Children.
The Magistrate for Children can (that is, in fact, the case very often) first investigates the offence committed by the minor through what is known as preliminary examination. He can also perform the function of judge by constituting alone the whole court.
After this brief examination of court for minors, we will look at other more complex institutions of exception.
This court has been established by the Organic Law L/91/009 of December 1991, which provides for its attribution, organization as well as its functioning.
With regard to its organization, the High Court is composed of a member of the Supreme Court, a member of the Constitutional Court, a member from the Court of Accounts and ten Members of Parliament. Each one of them is chosen by his colleagues. The President who is a fulltime judge Is elected by his colleagues.
The High Court of Justice is competent in matters against the President and the Vice-president for offences committed in exercise of their functions.
Closely related to the High Court is established a Commission of Preliminary Examination composed of three fulltime members and three substitutes members. They are chosen among the sitting judges of the Court of Appeal by the General Assembly of the same, excluding the standing judges, at the end of the judicial year, which begins, with the ordinary year for a period of one year. The President of the Commission is chosen the same way from the fulltime judges.
With regard to its jurisdiction, the High Court deals with cases against the President of the Republic for ‘high treason’; similarly, the court deals with cases against Cabinet Ministers for offences defined as crime and misdemeanour committed in exercise of their functions.
However, The co-authors and accomplices of the Cabinet Ministers are brought before ordinary courts. These courts stay the execution of their decision for the decision of the High Court of Justice.
The decisions of the High Court are not liable to appeal before the Court of Appeal or the Supreme Court.
If the High Court of the Justice is not a permanent court of exception and its jurisdiction being linked to the quality of the persons suspected of committing the offence, there is another court of exception with permanent characteristic.
It is the nature of the offence that determines the jurisdiction of this court. It was created by the Ordinance n# 152/PRG/85 of August 10, 1985. It is a permanent court of exception.
Regarding its organization, the Court of State Security is composed of a President who is a judge of the Supreme Court, two professional judges and two high officers of the army. The Prosecutor is assisted by two Deputies chosen among army officers. The Clerk Office is occupied by a high officer of the army.
It has jurisdiction in both peacetime and wartime and covers the whole national territory. It takes cognizance of crimes and misdemeanours of political nature.
However, this jurisdiction is optional since, the Prosecutor can transfer those cases to ordinary courts. The appreciations of the offence as well as the application of the punishments are made according to the Guinean Penal Code. The decisions of the court cannot be appealed. Nevertheless, those pronounced in absence of the suspect can be subject to review.
Besides the Court of State Security, which deals with matters that are political in nature involving adults, there is another court, which deals with special category of people.
The structure and functioning of the Military Tribunal are governed by the Ordinance n#153/PRG/85 of August 10, 1985. Its jurisdiction covers the national territory. According to article 849 of the Code of Penal Proceedings, the Military Justice is dispensed under the control of the Supreme Court by the Military Tribunal. This court the seat of which is in Conakry can sit in both peacetime and wartime periods.
The Military Tribunal is composed of a President who is a professional judge, assisted by four Assessors one of whom is a professional judge, a Judge of Preliminary Examination from judicial category courts on detachment for temporary service at the Ministry of Defence; two militaries of higher or equal rank as the accused. The Prosecutor’s Office is occupied by another judge of judicial category of court on detachment for temporary service at the Ministry of Defence. There is a Chief Clerk assisted by two Clerks.
Its jurisdiction covers all the offences of military nature. These offences are listed by article 3 of the abovementioned Ordinance. They include: high treason, damage to the internal and external security of the State, destruction of property, desertion, defaulting, abuse of authority and embezzlement.
In the past, the ordinary offence committed by the military in time of peace was brought before the military tribunal. But due to the scope of misdemeanours committed by the military and the impunity that followed, the Ordinance n#021/PRG/88 gave jurisdiction to tribunals of judicial category of courts to deal with all offences of ordinary law committed by members of the army in time of peace.
Cases are referred to the Military Tribunal according to the procedures of session of the ordinary courts. The decisions of the Military Tribunal can only be challenged before the Judicial Chamber of the Supreme Court
The High Court of Justice, the Court of State Security and the Military Tribunal are courts of exception either according to the nature of the offence or the quality of the accused person where the State is a party, but not conflicts among individuals. There is a court of exception of that sort of jurisdiction.
Tribunals of Labor
This tribunal like other tribunals having exceptional jurisdiction, has a specialized jurisdiction since it deals with labor matters only.
They are governed by labor law, social legislations and social security.
There are two Labor Tribunals in Guinea: in Conakry and Kankan, therefore their jurisdiction is not national.
For their structure, Labor Tribunals comprise a President and a Vice-President both of whom are magistrates, two Assessors and their Substitutes chosen from the employees, and two Assessors from the employers. The Assessors and Substitutes of employees are chosen from annual lists presented by the most representative trade unions or, in case of clear signs of weakness of those trade unions, the lists can be presented by the inspectorships of labor.
The two Assessors of employers are selected from annual lists of the Minister of Justice according to the proposal of the Department in charge of labor. The number of names on those lists must at least double the number of positions provided. The terms of office of the Assessors and their Substitutes are one year, which is renewable.
The Assessors and their Substitutes are sworn in by the Tribunal of First Instance under the territorial jurisdiction of which they are.
From the list prepared by the Ministry of Labor, the President of the Tribunal selects for each case, the Assessors of employers and employees from the profession in which the conflict rose. Even though the tribunal is composed of several sections of professional categories, only the Assessors concerned by those professional categories can be invited to sit. However, that rule is not imperative. []
The Clerk Office is held by a Chief Clerk assisted by one or several Clerks hereto referred as Secretaries.
For its jurisdiction, every Labor Tribunal is territorially competent within the limit of the jurisdiction of the Court of Appeal where it sits. Substantively, it is competent for all conflicts related to labor: individual or collective litigation between employers and employees during the execution of labor contracts, which includes working conditions, salaries and sacking. It also deals with matters related to accidents at work place and social security. Its jurisdiction does not only cover private sectors but also the State agents as well as those of territorial entities with the exception of fulltime civil servants and members of the disciplinary forces.
The role of this tribunal is first to conciliate the parties before going into the full process and second, to examine the conflict. Its decisions can be challenged before the Court of Appeal. The proceedings before the Tribunal of Labor are governed by the Guinean Labor Code. []
The Guinean legal system is thus animated by those courts, some of which are superimposed while others juxtaposed. It is unified at the top through the existence of a Supreme Court that will be looked at in the next part.
Besides those classical jurisdictions some of which are ordinary while others are exceptional, there exist administrative organs of judicial characteristics. They received from law the jurisdiction to exercise certain functions of courts. These are the Guinean Bar Association, the Association of the Guinean Medical Practitioners and the Chamber of Arbitration of Guinea.
Even though they are not on the official list of courts, thus not falling within the scope of this discourse, we shall examine the most prominent among them because of the intensity of its activities: the Chamber of Arbitration of Guinea.
Arbitration consists for the litigants, of requesting a private individual to regulate the conflict opposing them. It is therefore a private justice system on contract basis. According to an experienced businessman, there are two main reasons explaining while Arbitration is frequently used in matters of economic activities: the first is that litigations in business sector do not usually carry the public order characteristics, the Chamber functions according to the rules of private management. A simple arbitration being licit is highly preferable. The second is that the business sector is more attentive to the advantages of Arbitration with regard to classical judicial practices because it holds speedy justice cleared of many formalities of usual proceedings. Further, it is relatively less costly and it makes use of professionals in the field of business instead of judges who may have a less profound knowledge about economic activities. Finally, Arbitration is marked by the secrecy of the parties.
This institution has been put in place by the Presidential Decree D/150/PRG/SGG of August 11, 1998 (hereinafter the Decree n#150). According to this Act, the Chamber of Arbitration is transitionally attached and placed under the supervision of the Ministry of Justice. Its mission consists of providing means to Guinean and foreign businessmen to regulate their conflicts through arbitrators they freely chose. It organizes and supervises the operations of arbitration. Its seat is Conakry.
For its proper functioning, the Chamber of Arbitration is divided into three organs: the Council of Administration, the Committee of Arbitration, and the Administrative Bureau. [] They shall be analyzed successively.
The Council of Administration
According to article 6 of Decree n #150, the Council of Administration is composed of the seven following members:
- An accountant expert chosen by the Minister in charge of promoting private sector on the proposal of the Association of the Accountant Experts in Guinea,
- A jurist expert chosen by the Minister of Justice,
- A banking expert chosen by the Minister of Finance on the proposal of the Association of the Banking Professionals,
- A representative of the Chamber of Mining,
- A representative of the Chamber of Agriculture,
- Two representatives of the Chamber of Industries and Commerce and Handcraft one of whom is from the sector of Industry the other from Commerce and Handcraft.
To be a member of this Council one has to be businessman of high moral integrity, mastering the activities susceptible of being brought before the Chamber, be a qualified lawyer in the field of Business Law or be qualified in Assistance to private sector.
Members of the Council of Administration have a three-years mandate renewable once.
Committee of Arbitration
It is a technical team composed of three permanent members and three substitutes, all chosen by the Council of Administration.[] This Committee is in charge of every task related to the proper unfolding of the proceedings of arbitration.[]
It has three services: the service of secretariat, the accounting service, and the service of documentation. It is headed by the General Secretary who is in charge of administrative and financial management of the Chamber under the control of the Administrative Council.
The Secretary General and the heads of the services as well as other agents of the Bureau are all selected by the Council of Administration.
The following resources are available for the proper functioning of the chamber: Chamber’s own resources, Subsidy from Consular Chambers, Subsidy from the Government and international donors, Donations and legacy.
The courts are institutions set up by the State to settle conflicts between individuals as well as the governed and the governors. They do not look for cases for themselves, but cases are brought before them by the parties, thence the necessity of examining ways through which those matters are taken to them.
Like the categories of matters (civil and penal matters), there are two kinds of proceedings before Guinean courts: civil and penal proceedings. These proceedings are not opposed. They are in fact in many cases complementary. However, they are not substitutable nor are they conjunctible.
Distinction between penal and civil proceedings is easy to establish: one of the main differences between penal and civil proceedings is that the former is destined to protect the society against those who threaten the basis on which it is built: the proceedings in penal matters tend to protect public order by means of applying punishments. It is mainly inquisitor meaning that it is exercised by the judges in the courts by gathering evidences of the offence and appreciating them. The intimate conviction of the judge is determinant in this process. It goes beyond the will of the parties. Meanwhile the proceedings in civil matters seek the balance between private interests. It is mainly accusatory for the fact that it is up to the parties to determine the subject of their litigation, and bring evidences in support of their contentions. They can also put an end to it by renunciation or transaction.
These two types of proceedings being different, they must be analysed separately.
1 Penal proceedings in the Guinean legal system
It consists of all the rules destined to expose the offences and offenders and ensure the application of punishment the latter deserve. It consists two essential judicial stages: the first stage is related to the determination of the identity of the offender by gathering evidence against him and the second is the application of law.
a Identifying the offender
The first step is the preparatory examination intended to identify the suspect and gather bits of information around him. It is conducted by a unique magistrate. The second is the definitive preliminary examination, which leads to judgement. It can be detailed in case of appeal.
For offences defined as contravention and misdemeanour, the first step is optional for the fact that there can be direct summons before the tribunal.
It will be reasonable to wonder who can set the penal proceedings in motion. According to article 1 of the Guinean Code of Penal Proceedings, seeking the application of punishment to offenders, the penal proceedings are set in motion by law-officers and state functionaries to whom law confers that responsibility. Therefore, the Prosecutor’s Office, which represents the society, is the first concerned with this responsibility.
Due to its importance, this institution shall be analysed in detail among the constitutive elements of penal proceedings.
The phrase Prosecutor Office has double meanings: on the one hand, it refers to all the judges responsible for setting the proceedings in motion, on the other it means a single judge who represents the society during the trial. If this institution exists in both civil and penal proceedings, its role is more pre-eminent in the latter. To carry out its missions it is marked by the following characteristics:
- Indivisibility. The judges of the same Prosecutor Office can substitute one another without changing their position vis-à-vis the case. They are unified under the authority of the Executive Power, and they represent the society.
- Hierarchy. There is a hierarchy between the members of this office headed at the national level by the Minister of Justice. They obey this rule.
- Non-responsibility. If they fail in a case, these law-officers cannot be subject to payment of damages to the accused person.
- Independence. They are independent from the sitting judges. They do not receive any order from the courts to which they are assigned. According to article 606 of the Code of Penal Proceedings, they cannot be challenged in appeal. And according to ‘’the principle of opportunity of prosecution’’, the Prosecutor can stop or decide not to start at all a prosecution. []
However, the Prosecutor’s Office is not always free to start the proceedings. There are some circumstances that hinder its impetus. They are as follows:
- Cases in which the setting of proceedings in motion is subordinated to a complaint or a preliminary denunciation: when the proceeding is liable to cause further damages to the victim. For instance the offence of slander in the Press cannot be prosecuted without the consent of the victim.
- Cases in which the setting in motion of proceedings is subordinated to a preliminary judgement. It may be that the solution of penal case supposes that a question linked to civil jurisdiction is first settled. For instance, the offence of abandonment of family unless it is determined by a civil court that the couple is legally married.
Proceedings can also be initiated in penal matters by other means. Here, two hypothesises are foreseeable: some public administration like tax service and Bureau of Customs can set the proceedings in motion as well as the victim of the offence.
The next question raised is about the steps to bring the case before a penal court. Two institutions play that role: the Examining Magistrate at the Tribunal of First Instance, and the Chamber of Accusation at the Court of Appeal. They examine serious and complex cases. This process is compulsory in criminal matters, but optional in misdemeanours and only on request of the Public Prosecutor in contravention.
The Examining Magistrate is an independent entity of the first instance in the penal proceedings. It is independent vis-à-vis both the Prosecutor’s Office and the court of the decision. Its mission is to gather information and evidence around the suspect and decide whether the charges lodged against him are serious enough to be referred to a court.
The Chamber of Accusation, which is one of the Chambers of the Court of Appeal, pronounces on appeals launched against ordinances of the judges of Examining Magistrate. It intervenes also in criminal cases as the second-degree.
A matter can also be brought before the penal court by other means:
- The process of summons ‘‘citation directe.’’ It is made by means of a writ delivered on request of Public Prosecutor without passing through the stage of preliminary examination. This process is not possible in a criminal case in which the preliminary examination is always necessary.
- The suspect can conduct himself to the court by ‘voluntary appearance in court’,
- The notice of judicial appointment or judicial rendezvous. It happens on the decision of the Public Prosecutor to release a suspect that should appear immediately by arranging an appointment with him for a later appearance. This schedule cannot be less than ten days and more than two months.
- The appearance ex officio. Exceptionally, the court can refer a case to itself ex officio on request of by the Public Prosecutor when the offence is committed during the trial.
After the application to a court at the preliminary stage in due form, the hearing is the next step. It has some characteristics worth of mentioning:
- The publicity: the trial is held publicly. There can be no exception to this rule unless for sake of public mores or public order.
- The hearing is contradictory: the parties are on equal footing before the court of decision. They discuss on equal basis under the control of the President of the court to whom the direction of the trial is granted. []
The use of any camera (video or photo) or sound recording device remains proscribed inside the court during the hearing unless otherwise authorized. []
After all the necessary steps for the manifestation of the truth in due process, the judicial decision is the outcome.
b Application of law
Every decision pronounced by a court has to be subject of a deliberation, even if it is a unique judge. It can be pronounced outright after the judgement (that is the case with the Court of Assizes) or in later hearing. This decision, which must be justified, is pronounced orally.
There are various kinds of decisions:
- Provisional order: it is not pronounced on the substantive issue of the case, but prepares for its solution. It either settles certain incidents related to the conflict or orders measures that help to enlighten the court.
- Decision of release or acquittal of the suspect,
- Decision of exemption from punishment: they are not to be confounded with decisions of release or acquittal for the simple reason that here the accused is found guilty; the court only decides not to apply the prescribed punishment. For instance, a minor under the age of 13, or the one between 13 and 18 years of age against whom a penalty cannot be pronounced. However, the civil responsibility of the offence cannot be excluded for the persons in charge of the offender.
- Decision issued from sentence: In penal proceedings, it pronounces a punishment; sometimes complementary or accessory punishments can be added. With regard to civil suit, the sentence of the accused in penal proceeding proves that he is guilty. Therefore, the civil suit can be found well founded and a decision on the value of damages can be pronounced if there is a proof of relation between them.
- Decision of inadmissibility: this decision is pronounced by the court when it feels that the normal procedure was not respected for the application. Therefore, it does not examine the substantive aspects of the case.
A decision may not always be the end of the proceeding. There are possibilities of appeal when one feels that errors were committed in the proceeding amounting to an impairment of his rights.
c Means of redress
The Guinean Code Penal Proceedings and Code of Civil Proceedings dispose provisions that make available for the amenable some means of redress intended to reform erroneous decisions. Some of these means of redress are ordinary; they give opportunity for the court to examine anew the case in all its aspects, while others are extraordinary. They are admitted in limited enumerated cases by law when ordinary means are exhausted.
In penal proceeding ordinary means are:
- Opposition: in order to respect the principle according to which no one should be sentenced without having been given the opportunity to put forward his arguments, the Code of Penal Proceedings set up this means of redress on behalf of individuals against whom a sentence was pronounced in absentia. It is meant to retract the decision so that the case can be retried by the same court. []
This appeal can be lodged before the Court of Appeal by the defendant or by the person legally responsible for his act.
If the notification was made to the defendant himself, the deadline to lodge this appeal is within 10 days if the defendant is in Guinea and one month if he is elsewhere. []
Another ordinary means of redress is also available.
- Appeal before the Court of Appeal
It consists of bringing before the Court of Appeal a case already decided in the first instance. The second judgement is to avoid judicial errors. This appeal is not possible in contravention unless the fine pronounced by the court is over 5,000 Guinean francs or if the sentence is an imprisonment. []
With regard to the time limit of appeal, it is 15 days from the pronouncement of the decision for the defendant against the decision of the Tribunals of First Instance and one month from the same moment for the Public Prosecutor concerning the decision of the Justice of Peace. []
For misdemeanours, article 489 of the same Code stipulates that this appeal is possible against both decisions on the substance and the procedures; decisions of punishment for the same person as the ‘Opposition.’
It is lodged within 15 days from the verdict except the case where up to two months period can be allowed to Public Prosecutor.[]
The extraordinary means are all brought before the Supreme Court. They are the appeal for annulment and the appeal for revision.
- Appeal for annulment or cassation
According to Law n #008, this court can deal with two kinds of appeal for annulment: the appeal in the interest of the parties (which is regular) and the appeal in the interest of Law (which is exceptional).
The appeal in the interest of parties is possible in the following circumstances:
- Incompetence of the court of the decision,
- Abuse of authority by the judge (for instance when he gives himself an authority in violation law.),
- Violation of rules governing the procedural issues,
- Violation of rules relating to the substantive issues (for instance qualification of the offence.)
For the appeal in the interest of law, it can be lodged for the violation of procedure by all the parties. For instance, when all of them failed to respect a time limit set by law.
Besides this appeal for cassation, which is relatively regular in Guinea, there is another that is more seldom.
- Appeal for Revision
This appeal intervenes to correct errors committed in the judgement that were relevant for the outcome of the decision. The following reasons are among the circumstances giving ground to such an appeal:
- When evidence is found, after a sentence for murder, of the presence of the so-called victim,
- When a witness in the hearing has been found guilty, after the decision, of false evidence in another case,
- When another suspect is found guilty (not as an accomplice) and sentenced for the offence for which someone else had been sentenced,
- Any other evidence that reveals the innocence of a first sentenced person.
Coexisting with the penal proceedings is the civil proceedings, which will be examined in the next step.
2 Civil proceedings
Giving some similarities between the two proceedings, only two aspects of the civil proceedings will be discussed in order to avoid unnecessary repetition: the jurisdiction in civil proceedings and the means of redress.
a Jurisdiction in civil proceedings
The main principles governing the territorial jurisdiction in civil proceedings are as follow:
i In personal or estate case, it is the tribunal of residence of the defendant that is competent. In presence of many defendants from different territorial jurisdictions, the plaintiff has the opportunity to choose the court of one of them.
ii In cases related to real estate, it is the tribunal of the location of the estate that is competent.
iii For birth or death, it is the tribunal of the place of birth or death that is competent.
iv For matter of divorce, it is the tribunal of the last residence of the couple that is competent.
v For cases related to succession, it is the tribunal of the last residence of the deceased person that is competent.
vi For cases involving a company, it is the tribunal of the head office, sometimes that of a branch that is competent.
vii In contract matters, it is either the tribunal of the delivery or that of the place where the contract is executed.
viii In cases related to food or responsibility in marriage, it is the tribunal of the residence of the creditor that is competent.
ix In the maritime conflicts, a matter related to the contestation of delivery, works or hiring, it is either the tribunal of the place where the contract was passed or that of the place where it would have been carried out.
x When a law professional is party to a conflict that is in the jurisdiction of the court to which he is assigned, the plaintiff can bring the case before another tribunal of the same rank.
b Means of redress in civil proceedings
With regard to means of redress some of which are ordinary and others exceptional, in civil proceedings the ordinary means are as the same as in the penal proceedings, therefore, only the exceptional means will be discussed here. They are:
i Opposition by a third party ‘Tierce opposition’. This appeal is lodged by someone that was not originally party to the conflict but suffers or is likely to suffer the consequences resulting the decision thereof. Certain conditions are to be met before exercising this process:
- The person must have a real interest or suffered a prejudice (even a simple threat of prejudice),
- He should not have been party or represented to/in the conflict,
- The decision should be susceptible to be attacked by such appeal, which means that it must impair the right of that individual.
The second exceptional means of redress is as important as the first one for the guarantee of right of the individuals.
ii Appeal against the judgement. It is the opportunity offered to a litigant to request the court, which pronounced a decision that has already acquired the authority of res judicata to retract that decision in order to be re-examined in its substantive aspect.
The following reasons are among those that give ground for the admissibility of such appeal:
- When it has been revealed after the decision that the party in favour of whom the decision was pronounced used fraud to convince the court, or
- If evidence concealed by a party has been found after the pronouncement of the decision.
However, some decisions are exempted from such process. They are the provisional orders and the adjudications of the Supreme Court.
Anyway according to articles 658 and 659 of the Code of Civil, Economic and Administrative Proceedings (hereafter Code of Civil Proceedings), this appeal is not possible unless it is proved that the author failed without any premeditation on his side to expose the reason evoked before the decision could have acquired the authority of res judicata. The following extraordinary appeals are possible in Guinea once certain conditions are met:
i Taking issue with a judge ‘prise à partie’:
This appeal is made against a judge for abuse of authorities. The reasons serving ground for this appeal can be as follows:
- Wilful misrepresentation: it appears when the judge deludes a party in order to get his bona fide,
- Fraud: it occurs when the judge accomplishes male fide an act that causes prejudice to a party;
- Peculation: it appears when the judge receives, requires or orders the payment of an amount of money by the parties that was not legally due to him,
- Professional fault: this fault occurs during the preliminary examination or hearing,
- Denial of justice: it appears when a judge voluntarily omits or refuses to take action on a request to him addressed even though he was competent to deal with it.
A last ground of appeal is available against neither the judge himself nor the decision on substance:
According to article 201 of the Guinean Code of Civil Proceedings, this appeal is made against a decision pronounced on the question of jurisdiction of the court, not on the substance of the matter.
For the appeals that are common to the two proceedings (penal and civil), they are examined once. That is the case of second instance appeal and the appeal to the Supreme Court. However, there are some close links between the two kinds of proceedings despite their fundamental differences. We need to examine those relationships, which are the following:
- The fact that they can, all, be brought before the same judge. The penal case judge can be competent to take cognizance on civil suit related to the offence,
- Res judicata in penal case has authority on civil proceeding: it is the evidence gathered in the process of penal proceedings that is used to determine civil responsibility of the offender.
The proceedings, be it civil or penal, are not meant to last forever. They come to an end one way or the other. There are some causes that end both civil and penal proceedings. The following are among those reasons:
- A decision that has acquired the authority of res judicata after the exhaustion all the means of redress ends all proceedings.
- The prescription, the time limit after which no proceeding is available. According to article 8 of Code of Penal Proceedings, no civil suit can be launched after the prescription of the penal proceeding to which it is subordinated. The prescription of all civil suits is after 30 years, for penal proceedings, the prescription is 10 years for offence qualified as crime, 3 years for misdemeanour and 1 year for contravention. When the crime is committed by a minor, the time limit of prescription starts after the period in which he reaches his age of majority.[]
- The death of the offender. If the death of the offender ends the penal proceedings, it does not end the civil proceeding unless it occurs before the ends of the final penal decision to which it is linked. Otherwise, it can proceed against the successor of the offender.
- The abrogation of the penal law. Once the law is abrogated, the act it defined as offence ceases to be so, consequently it will not be incriminated in the future and, exceptionally if the new law is weaker than the old one, the abrogation will benefit retroactively an offender whose case has not yet acquired the authority of res judicata contrarily to article 5 of the Penal Code. []
- Transaction. Usually the transaction is not possible in penal cases, however, in limited cases like fiscal matters or matters before the Bureau of Customs. There can be transaction in those cases to end the proceedings.
- Retraction of complaint. Usually, the penal proceeding, which is entailed to protect the society, cannot be interrupted by simply retracting the complaint. That is possible only when the complaint is a necessary condition of it. Example: violation of privacy and abandonment of family.
Although, all the various decisions pronounced by the abovementioned courts are not yet compiled in a single document or on websites, those of the higher courts are accessible.
Besides the three traditional institutions in our legal system, some newly created institutions worth to be mentioned:
Economic and Social Council
This institution gives advices on all matters brought before by the President of the Republic or the National Assembly. It examines all the bills and presidential decrees relating to economic and social issues brought before it. It is in fact binding to consult
Publication of Decision
The decisions of Guinean courts are now published in either the ‘Bulletin de la Justice Guinéenne’ (Bulletin of Guinean Justice) by the ‘Fondation pour l’Etude et la Promotion du Droit en Guinée’ (Foundation for the Studies and Promotion of Law in Guinea) under the auspices of the Ministry of Justice since 1997 and the ‘Recueil des Decisions des Courts et Tribunaux avec Commentaires’ (Compedium of Decisions of courts with Comments). They are also published in the Official Gazette (Journal Officiel de la République or JORG), which appears every 10th and 25th of each month
The law libraries are yet to be full of the workers Guinean authors and editors. The few very often cited are:
Dr. Makanera Alhassane, Deen of the Faculty of Law
M. Diaby Alia, in charge of LLM program
M. Drame Alioun, Justice at the Court of Appeal of Conakry
2 Law schools
There are many universities in Guinea (mainly private universities) that have included the teaching of law in the curriculum, however, only two have acquired some popularities. They are:
- Faculty of Law of University of General Lansana Conte of Conakry-Sonfonia.
Once part of the other public university based in Conakry, it has been relocated other part of the City as a separate university. Its websites is under elaboration.
- University Koffi Annan of Conakry , a private university: website: http://www.univ-kag.org
Other law schools are: Universite La Source, Universite HECA, Universite Nelson Mandela and University Titi CAMARA.
3 Websites of Guinea.
Some useful websites are the following:
http://www.guinee.gov.gn It is the Government official Website
http://www.francophonie.org/ -- some Guinean legal documents can be found.
The Guinean legal system, as anywhere, is not static, however, it is particularly unstable because the unpredictable nature of the relationship between the main role players on the political scene. The position of Prime Minister being provided by the Constitution will certainly help avoid eventual source of tension in the Executive branch of power between the President and his henchmen on one side and the trade unions leaders as we have been witnessing in the past,. There were many voices supporting the revision of the Constitution in order to introduce the position of the Prime Minister. Another reform may target the National Assembly, which is a mono-cameral institution into a bicameral: a Senate and the Parliament. Now the ambition of some lawyers to see the judiciary reformed with the split of the present Supreme Court into three equal-rank institutions: Cour de Cassation (Supreme Court of Appeal), Cour Constitutionnelle (Constitutional Court) and Conseil d’Etat (Council of State) is partially fulfilled with the birth of the Constitutional Court and the Court of Accounts. The establishment of an Independent Institution for the Human rights is a significant development that needs to be supported by both the national and the international community.
Bah Alseny (2003), Cours d’Institutions Judiciaires, Editions Universitaire
Diaby Alia (2005), Droit Constitutionnel et Sciences Politiques, Editions Universitaire, Conakry, Guinée
Mamadou Alioun Dramé (1999), Droit, Question-Réponse, Editions Universitaires, Conakry, Guinée
Makanera Alhassan Kake, Régime Politique Guinéen, Etudes et Doctrine (2000), Edition Universitaire, Conakry, Guinee
Civil Code of Guinea
Penal Code of Guinea
Code of Civil Proceedings
Code of Penal Proceedings
Guinean Labor Code
Decree n#002/PRG/80 of January 7, 1980
Decree n# 022/MJ/86 of July 12, 1986
Decree n#023/Mj/86 of July 12, 1986
Decree D/150/PRG/SGG of August 11, 1998
Decree D/2001/031/PRG/SGG of May 17, 2001
Law n#004/AN/58 of November 16, 1958
Law n#018/AN/73 of June 16, 1973
Law n#044/APN/CP/80 of November 7, 1980
Law n#045/APN/CP/80 of November 7, 1980
Law n#053 /APN/CP/80 of November 9, 1980
Law L/95/021/CTRN/ of June 6, 1995
Law L/98/014/AN/ of June 16, 1998
Law L/91/008/CTRN of December 23, 1991
Law L/91/011/CTRN of December 23, 1991
Law L/93/CTRN of February 6, 1986
Ordinance n#001/PRG/58 of October 13, 1958
Ordinance n#115/PRG/84 of July 14, 1984
Ordinance n#109/PRG/86 of July 15, 1986
Ordinance n#110/PRG/86 of July 5, 1986
Ordinance n#/112/PRG/86 of August 7, 1986
Ordinance n#021/PRG/88 of October 18, 1988
Ordinance n#111/PRG/86 of July 5, 19986
PRG Président de la République de Guinée (President of the Republic of Guinea)
SGG Secretariat General du Gouvernement (General Secretariat of the Government)
CMRN Comité Militaire de Redressement National (Military Committee for National Redress)
MJ Ministère de la Justice (Ministry of Justice)
AN Assemblée Nationale (National Assembly)
CTRN Comité Transitoire de Redressement National (Transitional Committee for National
CAPA Concours d’Aptitude pour la Profession d’Avocat (Exam of the Aptitude for the Profession
CP Commission Parlementaire (Parliamentary Commission)
CA Chambre administrative (Adminstrative Chamber)
CS Cour constitutionnelle (Supreme Court)
[] Other documents deposited are: the previous voted Budget, meaning the expenditure allowed for that year. It is in green color; Budget of program, it examines different actions of a Ministry according to its objective. It is in white color; and the General Annex, which gives a comparison of the budget for each Ministry, chapter-by-chapter, article-by-article with that of the previous year. It is in yellow color.
[] Article 2 of Guinean Penal Code classified the infractions into three categories: the infraction punishable by police court is contraventions; the infraction the law considers as misdemeanours; and those the law punishes by afflictive and infamatory sanctions, are crimes.