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 November/December 2015

(Previously updated in April 2012)

See the Archive Version

 

Table of Contents

1.     Introduction

2.     Executive Power

2.1. Status of the President of the Republic

2.2. Prerogative of the President of the Republic

2.3. The Prime Minister

2.4. The General Secretariat of Presidency of the Republic

2.5. The General Secretariat of Government

2.6. The General Secretariat of Religious Affairs

3.     Legislative Power

3.1. Organization of the National Assembly

3.2. Responsibilities of the National Assembly

3.2.1.  Session

3.2.1.1.  Ordinary Legislative Procedures

3.2.1.2. Special Procedure

3.2.1.2.1. Constitutional Laws

3.2.1.2.2. Organic Law

3.2.2. National Budget Act

3.2.2.1. Deadline

3.2.2.2. Voting the Budget

3.2.2.3. Legislation Voted on by the Guinean National Assembly     

4.     Judicial Power

4.1. Constitutional Court  

4.2. Court of Account

4.3. Supreme Court of Guinea

4.4. Ordinary Courts

4.5. Courts of First Instance

4.5.1. Justice of the Peace

4.5.1.1. Jurisdiction in Civil and Commercial Matters

4.5.1.2. Jurisdictions of Justice of the Peace in Penal Cases

4.5.2. Tribunals of First Instance

4.6. Second Instance Court

4.7. The Courts of Exception

4.7.1. Courts For Minors

4.7.2. High Court of Justice

4.7.3. Court of State Security

4.7.4. Military Tribunal

4.7.5. Tribunals of Labor

4.8. Chamber of Arbitration of Guinea

4.8.1. Council of Administration

4.8.2. Committee of Arbitration

4.9. Administrative Bureau

4.10. Guinean Legal Process

4.10.1. Penal Proceedings in the Guinean Legal System

4.10.1.1. Identifying the Offender

4.10.1.2. Application of Law

4.10.1.3. Means of Redress

4.10.1.3.1. Appeal Before the Court of Appeal

4.10.1.3.2. Appeal for Annulment or Cassation

4.10.1.3.3. Appeal for Revision

4.10.2. Civil Proceedings

4.10.2.1. Jurisdiction

4.10.2.2. Means of Redress

4.10.2.3. Rejoinder

5.     Economic and Social Council

6.     Publication of Decision

7.     Guinean Law Publishers, Law Schools and Websites

7.1. Publishers

7.2. Law Schools

7.3. Websites of Guinea

8.     Conclusion

9.     References

 

 

1.     Introduction

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 a 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.

 

2.     Executive Power

The executive power is vested with 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.

 

2.1.         Status of the President of the Republic

He is the first personality of the State; he is politically not 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.

 

2.2.         Prerogative of the President of the Republic

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.  

 

2.3.         The Prime Minister

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.[[1]]  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.[[2]]

 

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’état, 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 no.  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.

 

2.4.         The General Secretariat of Presidency of the Republic

Under 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.

2.5.         The General Secretariat of Government

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. As such, it has particularly:

 

 

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, draws 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.

 

The 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 is appointed by Decree of the President of the Republic.

 

2.6.         The General Secretariat of Religious Affairs

The Secretariat General of Religious Affairs has the following missions: the conception, development and implementation of government policy with regard to religious activities. As such, it has particularly:

 

 

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.

 

3.     Legislative Power

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. 2/3 of assembly is elected through proportional poll from party’s national list while 1/3 of assembly is elected in single member constituencies by simple majority.

 

The Electoral Code established by the Transitional National Council under the interim government led by General Sekouba Konate sets the following conditions to be elected into the National Assembly:

 

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 [[3]]

 

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.

 

3.1.         Organization of the National Assembly

The internal structuring of the National Assembly is provided by its Internal Regulation Act, which is established by an Organic Law.[[4]] It determines the structure of that Institution, the number and the mode of designating of parliamentary commissions, rules governing the debates etc.[[5]]

 

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).[[6]]

 

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 equaling 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. [[7]]

 

As the Executive power, the Legislative power has its attributions.

 

After the transition provoked the death of the formal President General Lansana Conte and the taking over the power by the army, the legislative election took place in Guinea on September 28th, 2013 establishing the new parliament.

 

The following is the structure of the new Guinean parliament:

 

The ruling party (RPG arc-en-ciel):

 

Proportional Representation:

  1. Madame Hadja Nanténin Konate
  2. Mr. Abdoulaye Sylla
  3. Mme. Anne Marie Mansare
  4. Mme. Aïssatou Bobo Balde
  5. Mr. Saloum Cisse
  6. Elhadj Mamadou Sylla
  7. Mr. Abdoulaye Doukoure
  8. Mr. Mamadou Tawel Camara
  9. Mr. Mamadou N'fa Conde
  10. Mr. Bangaly Kourouma
  11. Bandjan Condé
  12. Mr. Aly Nabe
  13. Yaya Traoré
  14. Mr. Manga Fodé Toure
  15. Bakary Diakite
  16. Dr. Ousmane Kaba
  17. Lanciné Sény Kouroumah
  18. Naby Nouhan Condé
  19. Ibrahima Sory Traoré
  20. Sékou Camara
  21. Claude Kory Kondiano
  22. Djantou Traoré
  23. Elhadj Dembo Sylla
  24. Michel Kamano
  25. Boh Fatoumata Camara
  26. Djènè Saran Camara
  27. Amadou Damaro Camara0
  28. Mamady Kandé
  29. Alpha Sylla
  30. Lamine Kamissoko
  31. Thierno Kadiatou Bah
  32. Alpha Mohamed Diallo
  33. Ramatoulaye Labbo Diallo
  34. Nanfadima Magassouba
  35. Moussa Bangoura

 

Elected as Uninominal (By Prefecture):

  1. Fatoumata Cissoko, Dabola
  2. Aly Kaba, Kouroussa
  3. Abdoul Karim Oularé, Faranah
  4. Sékou Savané, Siguiri
  5. Madame Eva Cross, Mandiana
  6. Sékou Konaté, Kankan
  7. Elh. Abdourahmane Senkoun Camara , Kissidougou
  8. Amara Camara, Kérouané
  9. N’vayanga Conde, Beyla
  10. Pépé Toupou, Macenta 
  11. Sory Haba, N'zérékoré
  12. Moriba Gopou Camara, Yomou
  13. N’faly Yaradouno, Guékédou
  14. Abdoulaye Bernard Keita, Coyah
  15. Docteur Sidiki Cissé, Fria
  16. Elhadj Momo Ii Camara, Dubréka
  17. Lounceny Fofana, Forécariah
  18. Demba Fadiga, Kindia

 

UFDG (Leading Opposition Party):

 

Proportional Representation:

  1. Diallo Mamadou Cellou Dalein
  2. Fofana Fodé Oussou
  3. Sylla Aboubacar
  4. Diallo Mamadou Mouctar
  5. Fofana Marie Anne
  6. Bah Mariama
  7. Bah Assiatou
  8. Diallo Abdoulaye Diouma
  9. Conde Mamadou Aliou
  10. Diallo Mamadou Kenda À
  11. Diallo Alpha Ousmane
  12. Keita Ben Youssouf
  13. Diallo Amadou
  14. Diallo Mamadou Dian
  15. Yansane Kalémoudou
  16. Diallo Fatoumat
  17. Toure Ibrahima Sory Alain
  18. Balde Jamsedine Professeur
  19. Bah Mariama Tata Professeur
  20. Diallo Fatoumata Binta
  21. Barry Thierno Abdourahamane
  22. Barry Aïssatou
  23. Abdoulaye Baïlo Diallo

 

Elected as Uninominal (By Prefecture):

  1. Elhadj Aliou Bah, Ratoma
  2. Aboubacar Soumah, Dixinn
  3. Dian Baïlo Diallo, Télimélé
  4. Ousmane Diallo, Gaoual
  5. Fatoumata Binta Diallo ,Koundara
  6. Hamidou Diallo, Mali
  7. Mamadou Diouldé Sow, Pita
  8. Mamadou Alpha Baldé, Koubia
  9. Mamadou Alpha Baldé, Tougué :
  10. Djéssira Traoré, Mamou :
  11. Hawa Binta Diallo, Dalaba :
  12. Ibrahima Diallo, Lélouma
  13. Fodé Amara Bocar Maréga, Dinguiraye :
  14. Mamadou Cellou Baldé, Labé

 

Union des Forces Républicaines (Opposition Party):

 

Proportional Representation:

  1. Sidya Touré
  2. Bakary Goyo Zoumanigui
  3. Ibrahima Bangoura
  4. Hadja Aïssata Daffé
  5. Saïkou Yaya Barry

 

Elected as Uninominal (By Prefecture):

  1. Baïdy Aribot, Kaloum,
  2. Ibrahima Deen Touré, Matam
  3. Mohamed Lamine Doumbouya, Matoto
  4. Aïssata Soumah, Boffa
  5. Abdoulaye Sylla, Boké.

 

Upg (Non Enlisted Party):

 

Proportional Representation:

1.     Jean Marie Doré

  1. Dr. Sinata Chritian Touré.

 

Pedn (Opposition):

 

Proportional Representation:

  1. Lansana Kouyaté
  2. Dr Zalikatou Diallo

 

Rdig (Opposition):

 

Proportional Representation:

  1. Jean Marc Telliano

 

Gpt (Allied to the Ruling Party):

 

Proportional Representation:

  1. Kassory Fofana

 

Upr (Allied to the Ruling Party):

 

Proportional Representation:

  1. Elhadj Saloum Bah

 

Pgrp (Opposition):

 

Proportional Representation:

  1. Alpha Ibrahima Sila Bah

 

Pts (Allied to the Ruling Party):

 

Proportional Representation:

  1. Elhadj Mamadou Diawara

 

Ngr (Allied to the Ruling Party):

 

Proportional Representation:

  1. David Camara

 

Gud (Allied to the Ruling Party):

 

Proportional Representation:

  1. Dr. Sékou Benna Camara

 

Grup (Allied to the Ruling Party):

 

Proportional Representation:

  1. Elhadj Diao Kanté

 

Pnr (Allied to the Ruling Party):

 

Proportional Representation:

  1. Alpha Souleymane Bah Fischer

 

The National Assembly in which the ruling party and its allies hold the majority is composed of 12 commissions as follow:

 

1)     Commission of accountancy and control headed by Honorable Ibrahima Sory TRAORE from RPG-Arc-en-ciel, (herein the the ruling party);

2)    Commission of delegations, headed by Honorable Mamady Diawara, from an allied party to the ruling party;

3)    Economic, financial and planning commission headed by Honorable Ousmane Kaba, from the ruling party;

4)    Foreign Affairs Commission  headed by Honorable Diawo Kante, from the ruling party

5)    Commission for legislation, internal rules of the Assembly, the general administration and justice, g headed by Honorable Mady Kande, from the ruling party;

6)    Commission of defense and security, headed by Honorable Djennè Saran Camara, from the ruling party;

7)    Commission of natural resources and sustainable development, headed by Honorable David Camara, from NGR an allied to the party;

8)    Commission of industries, mines, commerce and handcraft, headed by Honorable Senkoun Kaba, from the ruling party;

9)    Commission of territorial arrangement, headed by Honorable Demba Fadiga, from the ruling party;

10)  Commission of civil service, headed by Honorable Jean Marc Telliano, from RDIG, the opposition;

11)  Commission of youth, arts, tourism and culture, headed by Honorable Aboubacar Sylla from  the opposition;

12)  Commission of information and communication, headed by Honorable Alpha Ibrahima Sila BAH.

 

3.2.         Responsibilities of the National Assembly

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 the National Assembly functions, it is necessary to discuss the agenda of the session, the debates and the system of voting.

 

3.2.1.      Session

National Assembly meets in ordinary session two times a year: the first session starts on April 5th and cannot exceed ninety days. The second session starts on October 5th and cannot exceed ninety days. If those two days are holydays, the session will start on the next working day. [[8]]

 

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.

 

3.2.1.1.          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:

 

Initiative of Law:

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).

 

Promulgation of Law:

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 discussed below.

 

3.2.1.2.         Special Procedure

It mainly concerns constitutional laws and organic laws:

 

3.2.1.2.1.     Constitutional 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. 

 

3.2.1.2.2.     Organic Law

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.

 

3.2.2.     National Budget Act

This is the third and last procedure. The law allowing the realization of the National Budget is voted on by the National Assembly. The conditions concerning the national budget are provided in 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.

 

3.2.2.1.         Deadline

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 colour. [[9]] 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.[[10]] 

 

3.2.2.2.         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 on 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 throughout 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 every day, 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.

 

3.2.2.3.         Legislation Voted on by the Guinean National Assembly

Legislations voted or amended by the Guinean lawmakers are many. The most prominent are the following:

 

 

To follow in the footsteps of nations where rule of law is the principle, the people of Guinea established other institutions to ensure that the Executive Branch implements laws passed by the Legislative Power in the intended way. Those institutions are created by the Constitution, including:

 

High Authority of Communication:

This institution is established by the Organic Law L/2010/003/CNT of June the 10th 2010 in conformity with article 125 of the Constitution. It is the organ in charge of regulating the activities of the media; as such it insures the transparency and the pluralism of the press, the rights of the citizens to information.

 

Mediator of the Republic:

Inspired by the Ombudsman of the Scandinavian States, this new constitutional institution is an organ in charge of intercession between the administration and the administered. It receives the complaints against the officials from their subordinates according the law.

 

4.     Judicial Power

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.

 

4.1.         Constitutional Court

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 who are over the age of 45 years chosen for their good morality:

 

 

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. [[11]] 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)

 

4.2.         Court of Account

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 state funding.

 

It is the institution in charge of controlling the management of public servant; the territorial collectivities; the state enterprises and all organisms benefitting from state funds. It controls the properties declared by state officials pursuing their appointment or election including the President of the Republic upon their taking of office. And finally it controls the annual report of the management of the public funds by the President of the Republic and the President of the National Assembly. 

 

4.3.         Supreme Court of Guinea

The Supreme Court is placed at the top of the hierarchy of the Guinean courts in administrative and judicial matters.[[12]] 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.

 

The Supreme Court is composed of two Chambers, namely:

 

Administrative Chamber:

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.

 

This judicial system includes many other courts: ordinary courts, the special courts and administrative organs of judicial characteristics.

 

4.4.         Ordinary Courts

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.

 

4.5.         Courts of First Instance

There are courts of first instance; this means that they are courts before which cases are brought in the first place. The jurisdiction of each is determined according to the monetary value in question in each case. They include:

 

4.5.1.     Justice of the Peace

The reform of 1986[[13]] laid the ground for the legislator to create a Justice of the Peace in every prefecture of the country. And the law no. 021,[[14]] 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 no. 021 provides that Justice of the Peace is headed by a President, who is a ‘unique judge’. [[15]] 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 from the other courts. Subject to particular legislative provisions or rules, Justice of the Peace is competent in all matters except those involving the Administration. [[16]] Therefore, it has jurisdiction in both civil and penal cases.

 

4.5.1.1.         Jurisdiction in Civil and Commercial Matters

According to Article 63 of law no. 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.

 

4.5.1.2.         Jurisdictions of Justice of the Peace in Penal Cases

Here the Justice of the Peace has double jurisdictions in minor offences called contraventions and misdemeanors. [[17]] The Justice of the Peace deals with offences considered contraventions.[[18]] 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.[[19]]

 

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.[[20]]

 

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. [[21]]

 

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.

 

4.5.2.     Tribunals of First Instance

The law no. 021 after all the above mentioned amendments retained ten Tribunals of First Instance on the national territory of Guinea.[[22]] These courts have their seats in Boke, Kindia, Mamou, Labe, Kankan, Faranah, N’Zerekore and three in the special zone of Conakry.[[23]] The special zone of Conakry was introduced in the legal organization by article 40 Paragraph 1 of the Presidential Decree no. 031. This specialty can be perceived in the organization of Tribunals of First Instance.

 

According to article 39 of the Law no. 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.[[24]] Each section deals with matters falling within its territorial jurisdiction. The President of the Tribunal is responsible for its proper functioning. [[25]

 

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. [[26]] However, the principle of collegiality applies in social cases (labor matters). This composition is as follows: [[27]] 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.

 

The Public Prosecutor’s duties are:

 

 

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 [[34]], 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.[[35]] As such, it is competent:

 

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. [[38]] 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. [[39]]

 

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.

 

4.6.         Second Instance Court

In Guinea, the Court of Appeal is the only court of second degree. The law no. 021, which organized it, created two Courts of Appeal in the country: one in Conakry, and the other in Kankan.[[40]] Each of them has an attributive jurisdiction and a territorial jurisdiction covering two natural regions:[[41]]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. [[42]] 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. [[43]]

 

The structure is different from that of Tribunals of First Instance. According to article 13 of the law no. 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.

 

Article 14 of the same law no. 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 no. 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 no. 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.

 

According to article 8 of the law no. 14, the Court of Appeal deals with:

 

The Court of Appeals is Judge of exequatur of legal decisions pronounced abroad. The First President is Judge of exequatur of arbitrator’s awards. [[45]] 

 

In order to carry out its different functions, the law no. 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. [[46]] The law no. 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 of at least 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.[[47]] 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. [[48]] 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 no. 021 provides that the First Presidents are the organizers of the Courts, and as such they:

 

 

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 where crime is defined by the Guinean Penal Code as an offence punished by infamatory or defamatory sanctions.[[51]] 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). [[52]] 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.[[53]] 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. [[54]] 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 has 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.

 

4.7.         The Courts of Exception

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.

 

4.7.1.     Courts for Minors

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.

 

4.7.2.     High Court of Justice

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 eligible for an 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.

 

4.7.3.     Court of State Security

It is the nature of the offence that determines the jurisdiction of this court. It was created by the Ordinance no. 152/PRG/85 of August 10, 1985. It is a permanent court of exception.

 

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.

 

4.7.4.     Military Tribunal

The structure and functioning of the Military Tribunal are governed by the Ordinance no. 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 no. 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.

 

4.7.5.     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. [[55]]

 

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. [[56]]

 

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.

 

4.8.         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 dealing with contracts. 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 no. 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. [[57]]

 

4.8.1.    The Council of Administration

According to article 6 of Decree no. 150, the Council of Administration is composed of the seven following members:

 

 

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-year mandate renewable once.

 

4.8.2.    Committee of Arbitration

It is a technical team composed of three permanent members and three substitutes, all chosen by the Council of Administration.[[58]] This Committee is in charge of every task related to the proper unfolding of the proceedings of arbitration.[[59]]

 

4.9.         Administrative Bureau

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.

 

4.10.      Guinean Legal Process

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.

 

4.10.1. 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 of 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.

 

4.10.1.1.      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:

 

 

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:

 

 

Proceedings can also be initiated in penal matters by other means. Here, two hypotheses 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:

 

 

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 use of any camera (video or photo) or sound recording device remains proscribed inside the court during the hearing unless otherwise authorized. [[62]]   

 

After all the necessary steps for the manifestation of the truth in due process, the judicial decision is the outcome.

 

4.10.1.2.      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:

 

 

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.

 

4.10.1.3.      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:

 

 

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. [[64]]

 

Another ordinary means of redress is also available.

 

4.10.1.3.1. 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. [[65]]

 

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. [[66]]

 

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.[[67]]   

 

The extraordinary means are all brought before the Supreme Court. They are the appeal for annulment and the appeal for revision.

 

4.10.1.3.2. Appeal for Annulment or Cassation

According to Law no. 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.

 

4.10.1.3.3. 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.

 

4.10.2. 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.

 

4.10.2.1.      Jurisdiction in Civil Proceedings

The main principles governing the territorial jurisdiction in civil proceedings are as follow:

 

 

4.10.2.2.      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:

 

 

The second exceptional means of redress is as important as the first one for the guarantee of right of the individuals. 

 

 

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. 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:

 

 

A last ground of appeal is available against neither the judge himself nor the decision on substance:

 

4.10.2.3.      Rejoinder

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:

 

 

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:

 

5.     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

 

6.    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.

 

7.     Guinean Law Publishers, Law Schools and Websites

 

7.1.         Publishers

The law libraries are yet to be full of the workers Guinean authors and editors. The few very often cited are:

 

 

7.2.         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:

 

 

7.3.         Websites of Guinea

 

 

8.    Conclusion

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.

 

9.    References

 

Books:

 

 

Legal Instruments:

 

 

Abbreviations:

 

 



[[1]] Articles 52 and 53 of the Constitution.

[[2]] Dr. Makanera (2001) Guinean Political Regime, p78

[[3]See Annex II

[[4]] Article 67 of the Constitution.

[[5]] Since there is no National Assembly in Guinea for the time being, its structure will be analyzed in the future.

[[6]] Article 63 of the Constitution.

[[7]] Article 65 of the Constitution.

[[8]] Article 68 of the Constitution.

[[9]] 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.

[[10]] Article 61 paragraph 2 of Fundamental Law.

[[11]] Articles 93 and 94 of the Constitution.

[[12]] Article 113 de la Constitution.

[[13]] Ordinance no. 109

[[14]] Law no. 021

[[15]] Only one judge sits at the hearing.

[[16]] Article 63 of the law no. 021.

[[17]] 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. 

[[18]] Article 134 of Code of Penal Proceedings.

[[19]] Ibid.

[[20]] Article 71, Paragraph 2 of the law no. 021.

[[21]] Article 63 of the law no. 021.

[[22]] See table A and B of the Presidential Decree no. 031.

[[23]] Kaloum, Mafanco and Dixinn.

[[24]] Article 40, Paragraph 3 of the Decree no. 031.

[[25]] Article 50 of the law no. 021.

[[26]] Article 45 of the law no. 021.

[[27]] Article 43, Paragraph 2 of the law no. 021.

[[28]] Article 55, Paragraph 1 of the law no. 021.

[[29]] Article 55, Paragraph 4 of the law no. 021.

[[30]] Article 56 of the law no. 021.

[[31]] Article 57 of the law no. 021.

[[32]] Article 58 of the law no. 021.

[[33]] Article 55, paragraph 3 of the law no. 021.

[[34]] Article 47 of the law no. 021

[[35]] Article 35 of the law no. 021.

[[36]] Article 36 of the law no. 021.

[[37]] Article 37 of the law no. 021.

[[38]] Article 72, Paragraph 2 of the law no. 021.

[[39]] Article 44, Paragraph 1 of the decree.

[[40]] Article 7 of the law no. 021.

[[41]] Guinea is divided into four natural regions: Lower Guinea, Upper Guinea, Middle Guinea and Forest Guinea.

[[42]] See Table A

[[43]] Ibid.

[[44]] Article 9 of the law no. 014.

[[45]] Article 10 of the law no. 014.

[[46]]  Article 22 of the law no. 021

[[47]]  Article 23 of the law no. 021

[[48]]  Article 24 of the law no. 021

[[49]] Article 1 Paragraph 1 of the Decree 031.

[[50]] Article 27 Paragraph 2 of the Decree 031.

[[51]] Article 2 of the Code.

[[52]] Article 197 of the Code of Penal Proceedings.

[[53]] Article 61 of the Penal Code.

[[54]] In criminal cases, the suspect is first taken to the Chamber of Accusation where he is formally charged after the preliminary examination.

[[55]] Article 231 Paragraph. 4 and 6 of Guinean Labor Code

[[56]] Article 28 of the Decree /2001/031/PRG/SGG of May 17, 2001.

[[57]] Article 5 of Decree no. 150

[[58]] Article 12 para.1 of the Decree no. 150

[[59]] Article 12 para.2 of the Decree no. 150

[[60]] Article 38 of the Code of Penal Proceedings.

[[61]] Article 395 of the Guinean Code of Penal Proceedings.

[[62]] M. Alioun Drame (1999), Droit, Question-Response, p205

[[63]] Article 482 of the Guinean Code of the Penal Proceedings.

[[64]] Article 484 the Guinean Code of Penal Proceedings

[[65]] Article 493 to 495 of the Code of Penal Proceedings.

[[66]] Article 484 of the Code of Penal Proceedings.

[[67]] Article 501 of the Code of Penal Proceedings.

[[68]] Article 3, 4 and 5 of the Code of Penal Proceedings.

[[69]] No one can be sentenced for an offence that was not defined as such before the commission of the act.