Guide to Legal Research in Mali
By Dahmène Touchent
Dahmène Touchent is responsible for the Algerian web site LEXALGERIA. He received his Diplôme d’études supérieures from the National Financial Institute, Algiers, Master of Law degree from Paris XIII University, and another degree in export law from Paris V University. He teaches law and economics courses to first-years and upper-class students at Institut européen des entreprises and commercial and social law at University of Paris XIII. He has written on the law of Northern African (Algeria, Morocco and Tunisia), as well doing studies on French labour and consumer law.
Published April 2005
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Table of contents
The landlocked country of Mali covers an area of 1,241,300 square kilometers. It is the biggest country in Western Africa. It shares a border with seven countries: Algeria to the north; Ivory Coast and Guinea to the south; Burkina to the southeast; Mauritania and Senegal to the west; and Niger and Senegal to the east.
The Sudanese Republic and Senegal gained independence from France on June 20, 1960 as the Mali Federation. Senegal seceded from the federation on Aug. 20, 1960, and the Sudanese Republic then changed its name to the Republic of Mali on Sept. 22, 1960.
French is the official language of Mali.
In 1992, Alpha Konaré became Mali's first democratically elected president. Mali's second multiparty national elections took place in May 1997, with President Konaré winning re-election.
The President of the Republic
The President of the Republic is the Chief of the State and the guardian of the Constitution. He embodies the national unity. He is the guarantor of national independence, territorial integrity, and respect for international treaties and accords. The President keeps watch over the regular functioning of public authority and assures the continuity of the State.
The President of the Republic is elected only once for five years by direct universal suffrage, by election on a majority basis from two rounds of balloting. Every candidate for the office of President of the Republic must be of Malian national origin and must have fulfilled all civic and political duties.
The President of the Republic is elected by absolute majority of cast votes. If no absolute majority can be obtained after the first round of votes, a second round is held, the second Sunday following. This second round is open only to two candidates determined by the largest number of votes.
The convocation of electors is made by decree held in the Council of Ministers.
The Constitutional Court controls the regulation of these operations, make rulings regarding complaints, and proclaim the results of the election.
The President of the Republic is the Supreme Chief of the Armies. He presides over the Superior Council and the Committee of National Defense. The President of the Republic is the President of the Superior Council of the Magistracy. He signs ordinances and decrees from the Council of Ministers and names senior civil and military leaders, as determined by law.
The President of the Republic empowers the Ambassadors and Special Envoys when engaged with foreign powers.
The functions of the President of the Republic are incompatible with the exercise of any other political function, with any elective mandate, with any public use, or with any other lucrative or professional activity.
During his period of office, the President of the Republic cannot, through himself or another, buy or lease anything which belongs to the State’s domain without prior authorization of the Supreme Court under the conditions laid out by law. He can not participate, through himself or another, in public or private markets for the administrations or institutions under the State’s authority or subject to its control.
The President of the Republic promulgates laws within fifteen days following transmission to the Cabinet of the definitively adopted text. Before the expiration of this time period, he demands a new deliberation of the law or certain of its articles by the National Assembly.
The President of the Republic, by proposal of the Cabinet, during the duration of its sessions or by proposal of the National Assembly, after the opinion of the Constitutional Court is published in the Official Journal, may place under referendum any and all questions of national interest, any law related to the organization of public powers, consisting of an approval of an accord of union or an authorization of a treaty which, without being unconstitutional, would have effect on the function of the Institutions.
The President of the Republic may, after consultation with the Prime Minister and the President of the National Assembly, declare the dissolution of the National Assembly. General elections will follow between twenty-one and forty days after the dissolution. The National Assembly cannot be dissolved in the year that follows these elections.
The President of the Republic communicates with the National Assembly and the High Council of Collectives by memoranda that are to be read by the President of the National Assembly or by the a member of the High Council of Collectives.
The President of the Republic can declare, after deliberation in the Council of Ministers, a state of siege or a state of emergency.
After consultation with the Prime Minister, the Presidents of the National Assembly and of the High Council of Collectives as well as the Constitutional Court, the President of the Republic can take emergency measures as required by the circumstances when the institutions of the republic, independence of the nation, integrity of the national territory, or the execution of international engagements are immediately or gravely threatened and the regular functioning of the constitutional public powers are interrupted.
The emergency powers must seek to assure the continuity of the State and re-establish the institutions conforming to the Constitution in the event of an interruption of normal state function.
The term of functions
When the President of the Republic is temporarily unable to fulfil his duties, his powers are provisionally exercised by the Prime Minister. In case of a vacancy of the Presidency, noted by the Constitutional Court, the President of the National Assembly and the Prime Minister, the functions of the President of the Republic are carried out by the President of the National Assembly.
A process for election of a new president for a new five-year period then commences. The election of the new President can take place between twenty-one and forty days after the official recognition of the vacancy or preventative obstacle.
The Cabinet determines and directs the political institutions of the Nation, the armed forces, and their administration. The Cabinet is responsible before the National Assembly according to the conditions and following the procedures established by Mali’s constitution.
The President of the Republic names the Prime Minister. He also puts an end to the Prime Minister’s term with the presentation by the Prime Minister of the resignation of the Cabinet. On proposition by the Prime Minister, the President of the Republic names the other members of the cabinet and can also terminate their functions.
The President of the Republic presides over the Council of Ministers. The Prime Minister stands in for him under the conditions supplied by the Constitution.
The Prime Minister is the Head of the Cabinet: with this title he directs and coordinates governmental action. He assures the execution of the laws. With respect to the provisions of constitution, he exercises his ruling power. He is responsible for the execution of the political institutions and the national defense. He can delegate certain powers to the other Ministers. He shall stand in for, if such should be the case, the President of the Republic in the presidency of the Council and of the Committee as defined by the Constitution. He stands in for the president of the Council of Ministers by virtue of an express delegation or an order of business. The actions of the Prime Minister are countersigned, if such should be the case, by the Ministers charged with their execution. Before entering into service, the Prime Minister must deliver to the Supreme Court a written declaration of the Cabinet’s intentions. A member of Cabinet cannot act by any parliamentary mandate, any function of professional representation, at the national or local level, any public endeavor, or any professional or lucrative activity. The replacement of members of Parliament is made by the Cabinet with conformity to the provisions of Constitution.
· Prime Minister: Mr. Ahmed Mohamed Ag Hamani
· Ministre de la Santé : Mme Kéita Rokiatou N'Diaye
· Ministre de l'Economie et des Finances : Bassari Touré
· Ministre de l'Artisanat et du Tourisme : N'Diaye Bah
· Ministre des domaines de l'Etat, des Affaires Foncières et de l'Habitat : Boubacar Sidiki Touré
· Ministre de l'Industrie et du Commerce : Choguel Kokala Maiga
· Ministre de l'Agriculture, de l'Elevage et de la Pêche : Seydou Traoré
· Ministre de l'Education Nationale : Mamadou Lamine Traoré
· Ministre de l'Equipement et des Transports : Ousmane Issoufi
· Ministre des Affaires Etrangères et de la Coopération Internationale : Lassana Traoré
· Ministre de la Défense et des Anciens Combattants : Pr Mahamane Kalil Maiga
· Ministre de l'Administration Territoriale et des Collectivités Locales : Général Kafougouna
· Ministre des Mines, de l'Energie et de l'Eau :Hamed Diane Séméga
· Ministre de l'Environnement : Nancouma Kéita
· Ministre de la Sécurité et de la Protection Civile : Colonel Souleymane Sidibé
· Ministre de la Communication et des Nouvelles Technologies de l'information : Gaoussou Drabo
· Ministre du Développement Social, de la Solidarité et des Personnes Agées : Mme N'Diaye Fatoumata Coulibaly
· Ministre du Travail et de la Fonction Publique : Modibo Diakité
· Ministre Promotion Femme, Enfant et Famille : Mme Berthé Aissata Bengaly
· Ministre de la Culture : Cheick Oumar Cissoko
· Ministre de la Justice, Garde des Sceaux: Me Abdoulaye Garba
· Ministre de la Jeunesse et des Sports : Djibril Tangara
· Ministre Délégué chargé de la Réforme de l'Etat et des Relations avec les Institutions : Badi Ould Ganfoud
· Ministre Délégué chargé du Plan : Marimantia Diarra (Adema)
· Ministre Délégué chargé de la Sécurite Alimentaire: Ibrahima Oumar Touré (Adema)
· Ministre Délégué chargé de la Promotion des Investissements et du Secteur Privé : Ousmane Thiam
· Ministre Délégué chargé des Maliens de l'Extérieur et de l'Intégration Africaine : Oumar Hamadoun Dicko
· Ministre Délégué chargé des Transports : Ousmane Amion Guindo
· Ministre Délégué chargé de l'Emploi et de la Formation Professionnelle : Mme Diallo Mbodji Sène
Parliament is comprised of one house called the National Assembly and its members are called ‘Deputies’. It currently consists of 147 members, elected for five years by direct universal suffrage. Organic law determines the methodology for this election.
Deputies enjoy parliamentary immunity because no member of the National Assembly may be pursued, investigated, arrested, detained or tried for his opinions or votes that arise from the exercise of his functions.
No member of the National Assembly may, during the time when parliament is in session, be pursued or arrested in a criminal or correctional manner without the authorization of the National Assembly, except in the case of a flagrant offense.
Outside of session, no member of the National Assembly can be arrested except with the authorization of the Office of the National Assembly, except in the case of a flagrant offense, authorized pursuits or definite condemnation.
The detention or pursuit of a member of the National Assembly is suspended if the National Assembly demands it.
Organic law establishes the number of members of the National Assembly, their indemnities, conditions of eligibility, scheme of ineligibilities and incompatibilities. Also, organizational law determines the conditions for election of those called to assure, in the case of a vacant seat, the replacement of Deputies until the re-election of the National Assembly.
The right to vote of the members of the National Assembly is individual. Organizational law may authorize, for exceptional reasons, delegation of a vote. In this case no one may receive the delegation beyond what is mandated.
The National Assembly establishes its own procedure. The President of the National Assembly is elected for the duration of the legislature.
· the proposal or project must only be subjected to deliberation and vote of the National Assembly after the end of a fifteen-day time period following its deposit in the office of the National Assembly:
· the text must only be adopted by an absolute majority of the members composing the National Assembly. Organic laws may only be promulgated after a declaration of the Constitutional Court of their conformity to the Constitution.
The law in Mali determines regulations concerning:
· civic rights and fundamental guaranties provided to citizens so they may exercise their public liberties;
· constraints imposed by the National Defense on themselves and their possessions;
· nationality, civic rights, state and capacity of people, marriage, inheritance and donations, property system, actual rights and civic and commercial obligations, factions of society, expropriation;
· crimes and offenses in addition to their applicable penalties, criminal procedure, police judiciary, extradition, amnesty, the creation of jurisdictions, the status of Ministerial Officers, the status of juridical and judicial Professions;
· the status of civil servants;
· the general status of the personnel of the Armed forces;
· the system of distribution of money, the tax base, taxes and methods of collection.
Equally, the law determines the fundamental principles of:
· the general organization of the defense and national security;
· the right to work, social security, the right to form unions;
· the organization and competency of professional orders;
· education and research;
· the protection of cultural heritage and archaeology;
· public compatibility;
· the creation, organization and control of public services and organizations;
· the nationalization of enterprises, denationalization and transfer of property of enterprises from the public sector to the private sector;
· the electoral system;
· the free administration of local collectives, their competence and their resources;
· the administrative organization of the national territory;
· the management and alienation of the State’s domain;
· the organization of the national product;
· the organization of the justice system;
· the penitentiary system.
The law of the Treasury (loi de finances) determines resources and the government expenditures. The budget must be adopted by the National Assembly.
Declaration of war is authorized by the National Assembly in a special meeting for that purpose. Then, the President of the Republic informs the nation by an announcement. States of emergency and states of siege are declared in the Council of Ministers. Their extension beyond ten days may only be authorized by the National Assembly.
In the execution of its functions, the Cabinet must, within its domain as established by law, request Parliamentary authorization to take by Ordinance, during a limited time period, measures which are normally the domain of the law. These Ordinances must come from the Council of Ministers following the opinion of the Supreme Court. These ordinances come into effect as soon as they are adopted, but can become null and void if they are not ratified by the National Assembly before the date established by their own qualification. At the expiration of the time period, Ordinances may only be modified by law on matters which are in the legislative domain. The initiation of laws belongs concurrently to the Cabinet and to the members of the National Assembly.
If the National Assembly is not established at the time of the commencement of the budgetary period or if it does not vote-in a budget, the Cabinet returns the budget in the fifteen day period when the National Assembly meets in special session for this reason. The National Assembly must then decide in eight days. If this deliberation does not result in a voted-in budget, the task is then taken up by the Cabinet based on the formula of the previous result and following the opinion of the Supreme Court.
The Prime Minister, after deliberation of the Council of Ministers, discusses the responsibility of the Cabinet within the National Assembly’s plan either before the Assembly or by a declaration of the general politics of the Cabinet.
The National Assembly defeats action of the Cabinet by passing a vote of no confidence. Such a motion is only admissible if it is signed by at least one tenth of the members of the National Assembly. A vote must take place within forty-eight hours of the motion.
Those who are polled to be in favor of the vote of no confidence may only come from the majority of the two tiers of the members composing the Assembly. If the motion of the vote of no confidence is rejected, the signers may not propose a new motion within the course of the same session.
The Prime Minister may, after deliberation with the Council of Ministers, engage the liability of the Cabinet before the National Assembly regarding the vote on a bill. In this case, the bill is considered to be adopted, unless a motion of no confidence, made in the next twenty-four hours, is voted-in.
When the National Assembly adopts a new motion of no confidence or when it disapproves of the plan or a declaration of the general politics of the Cabinet, the Prime Minister must submit to the President of the Republic the resignation of the Cabinet.
The judicial power is independent of the executive and legislative powers. It is exercised by the Supreme Court and the other courts and tribunals. The President of the Republic is the guarantor of the independence of the judicial power.
The power of the judiciary is the guardian of the liberties defined by this Constitution. It guards the rights and liberties defined by this Constitution. It is charged to apply, in its proper domain, the laws of the Republic. Magistrates can not be suppressed in the exercise of their duties, but by the authority of the law.
The Superior Council watches over the management of the Magistrates’ careers and gives its opinion on any question concerning the independence of the Magistracy. Also, the Superior Council of the Magistracy serves as the Council of discipline for the Magistrates. Organic law (Loi organique) establishes the composition, organization, allocations, and functioning of the Superior Council of the Magistracy.
Law likewise establishes the status of the Magistracy with respect to conformity with the principles of this Constitution.
The courts of First Instance
The courts of First Instance are competent to judge, on first instance, cases that do not exceed 100,000 francs CFA dealing with:
They rule on the litigation between the workers and their employer, or the litigation relating to the collective conventions. The work courts are composed of a president and of two magistrate's assistants, one of which is a representative for the workers and the other for employers.
The courts for children rule on the offences committed by the minors, the penal majority being 18 years in Republic of the Mali.
It adjudicates such cases as unauthorised carrying of firearms and offences committed by soldiers. These courts are also activated under periods of martial law.
The Appeals Courts
They may hear appeals from decisions held in the first degree. Each court of appeal shall consist of at least a chamber for civil affairs, a chamber for commercial (economic and financial) affairs, a chamber for labor law, a chamber for criminal affairs (petty crimes, less than 5 years of imprisonment), and a chamber of prosecution for the most serious offences. They may render decisions for criminal affairs, standing in court of assises (Grand Jury courts), with the help of assistant prosecutors chosen from among the population. In every matter, the appeals court renders its sentence with the presence of the General Prosecutor or his deputy, and with the help of a Clerk or registrar of the Court.
The Supreme Court
The Supreme Court is presided over by a judicial Magistrate named by the President of the Republic and conforming to a proposition of the Superior Council of the Magistracy.
The President of the Supreme Court is assisted by a Vice-President named in the same manner.
The Supreme Court is comprised of:
Administrative courts are created by the law n° 88/40 of February 1988. There are 3 administrative courts at:
· Bamako, administrative court competent for the region of Sikasso-Koulikoro-Ségou.
· Kayes, administrative court competent for the region Kayes
· Mopti, administrative court competent for the region of Kidal-Tombouctou-Gao
They are competent to make initial rulings:
The Appeals Courts serve as the appellate courts for decisions made in the administrative courts. There are 3 appeals courts, in Bamako, Kayes and Mopti.
The High Court of Justice
The High Court of Justice is competent to judge the President of the Republic and Ministers upon accusation by the National Assembly of high treason or of crimes or offenses committed while exercising their functions as well as their complicity in case of a conspiracy contrary to national security.
The High Court of Justice is vigorously bound by the presentation of crimes and offenses and the determination of the penalties resulting from the penal laws as provided by the prosecution.
The High Court of Justice is composed of members designated by the National Assembly at each general renewing [of the National Assembly]. The Court elects president from its members.
The Constitutional Council
The Constitutional Court is the judge of the constitutionality of the laws and it shall guarantee the fundamental laws of the individual and public liberties. It is the regulating body of the functioning of institutions and the activity of the Public Powers.
The Constitutional Court is comprised of nine members who hold the title of Counselors with periods of office of seven years, once renewable.
The nine members of the Constitutional Court are assigned in the following manner:
· three named by the President of the Republic of which two must be jurists;
· three named by the President of the National Assembly of which two must be jurists;
· three Magistrates designated by the Superior Council of the Magistracy.
The Counselors are chosen from professors of law, lawyers and magistrates having at least fifteen years of practice, in addition to qualified personalities who have served the State honorably.
The President of the Constitutional Court is elected by his peers. In case of temporary inability, his position shall be filled by the eldest Counselor. In case of death or dismissal of a member, the newly named member, by the respective nomination authority, shall continue the period of office already commenced.
The functions of a member of the Constitutional Court are not compatible with any public, political, administrative, or private or professional activity.
The Constitutional Court must decide on:
· the constitutionality of organizational laws and other laws before their promulgation;
· the interior regulations of the National Assembly, the High Council of Collectives and of the Economic, Social and Cultural Council before they are put in application pertaining to their conformity to the Constitution;
· the arbitration of conflicts between institutions of the State;
· the regularity of presidential and legislative elections and the operations for referendums of which it shall declare the results.
The Constitutional Court rules, in a case contesting the validity of an election, of any candidate, any political party or delegate of the Cabinet, according to the conditions defined by an organizational law.
Organic laws must be submitted by the Prime Minister to the Constitutional Court before their promulgation. Also, other categories of laws, before their promulgation, may be referred to the Constitutional Court either by the President of the Republic, the Prime Minister, the President of the National Assembly, one tenth of the deputies of the National Assembly, the President of the High Council of Collectives or one tenth of the National Counselors, or by the President of the Supreme Court.
The Constitutional Court rules within a time period of one month according to the procedure for which the methodology is established by organic law. However, by request of the Cabinet in a case of emergency, the time period may be reduced to eight days. The Appeal to the constitutional court suspends the time period of the promulgation of the law in question. A provision deemed or declared unconstitutional can not be promulgated or applied.
The international engagements must be referred to the Constitutional Court before their ratification, either by the President of the Republic, the Prime Minister, the President of the National Assembly, one tenth of the deputies of the National Assembly, the President of the High Council of Collectives or one tenth of the National Counselors. The Constitutional Court determines, in a period of one month, if these engagements contain a clause contrary to the Constitution.
However, by request of the Cabinet, if there is an emergency, this time period may be reduced to eight days. In the event of an affirmative reply, these engagements may not be ratified.
The decisions of the Constitutional Court are not susceptible to any recourse. They shall intrude upon public powers, all administrative and jurisdictional authorities and on the morals and actions of the individual. The rules of organization and function of the Constitutional Court, in addition to the procedure followed before it, shall be determined by an organizational law.
The Economic, Social and Cultural Council
The Economic, Social and Cultural Council is competent regarding all aspects of economic, social and cultural development.
Members of the Economic, Social and Cultural Council are:
· the representatives of syndicates, associations and socio-professional groups, elected by the association or group of origin;
· the representatives of the collectives designated by their peers;
· the representatives of Malians abroad.
Associate members can be senior officers of the State from within the realm of economy, society and culture.
The Economic, Social and Cultural Council meets biannually in fifteen day public sessions at the convocation of its President. The President and Vice-President of the Economic, Social and Cultural Council are elected for five years from within the Council by their peers at the opening of the first session. No member of the Economic, Social and Cultural Council can be pursued, investigated or tried for opinions given while in session of the Council.
The Economic, Social and Cultural Council participates in every commission of national interest of economic, social or cultural nature. Its may collect and draft, with the participation of the entities of which it is composed, to the attention of the President of the Republic, Cabinet and National Assembly, a collection of expectations, needs and problems of the civil society that have arisen out of its orientation and proposals.
The Economic, Social and Cultural Council must be consulted on every project within the law of finances, every plan or program of the economy, society or culture as well as any legislative provisions of a fiscal, economic, social or cultural nature.
The Economic, Social and Cultural Council designates one of its members to appear before these bodies and present the opinion of the Council on projects or proposals which have been submitted to it, at the request of the President of the Republic, Cabinet or National Assembly.
The Cabinet and the National Assembly are obliged, when they are seated, to give a conclusion to the opinions and reports presented by the Economic, Social and Cultural Council within three months for the Cabinet and before the end of the present session of the National Assembly.
The Economic, Social and Cultural Council must receive a description of laws, ordinances and decrees as soon as they are promulgated. The Economic, Social and Cultural Council shall follow the execution of the decisions of the Cabinet related to economic, social, and cultural organization.
The High Council of Collectives
The mission of the High Council of Collectives is to study and give an opinion about every issue of local and regional development. It may make proposals to the Cabinet on any issue concerning protection of the environment and bettering the quality of life of the citizens within the collectives.
The Cabinet awaits the opinion of the High Council of Collectives for all actions concerning the areas cited in this article. The High Council of Collectives shall be seated at Bamako. It may be transferred to any other location if necessary. The High Council of Collectives may not be dissolved.
The members of the High Council of Collectives carry the title ‘National Counselor’. No member of the High Council of Collectives may be pursued, investigated, or tried for opinions given while in session of the High Council. Organic law establishes the number of National Counselors, their indemnities, conditions of eligibility, the system of ineligibilities and incompatibilities as well as their conditions of replacement. National Counselors are elected for five years by indirect suffrage and assure the representation of the Territorial Collectives of the Republic.
The High Council of Collectives comes to normal session biannually by convocation of its President. The duration of each session may not exceed thirty days.
The President of the High Council of Collectives shall be elected for five years. The National Assembly and the High Council of Collectives may be seated in committee subject to the request of the Prime Minister. The President of the National Assembly and the President of the High Council of Collectives can call a joint session of the Deputies and the National Counselors.
Administratively, Mali is divided in 8 regions, each region thereafter divided into communes.
The number of the communes is 682. The organs and institutions of the commune are:
· the community counsel is composed from members elected by the citizens of the commune. It decides full right of matters about the community budget, health, the environment, use of the natural resources, etc.
· the Community Office is composed of the Mayor and assistant mayors, elected by the town council.
· The Mayor represents the group in the acts of civil life.
The Region is composed by:
· A regional assembly: is composed from elected members
· Regional councils rule the matters of the region.
· The Regional Office is the executive of the region, directed by a region President.
· Pro Mali: This site was created by the Fédération Nationale des Artisans du Mali (National Federation of Craftsmen of Mali)
· OPDIN: L'observatoire de la pêche dans le delta intérieur du Niger (Mali) - (The Fisheries Observatory for the Inner Delta of the River Niger in Mali)
Faculté des Sciences Juridiques et Economiques
Université du Mali
· Gaoussou Sanou, Femmes et successions, ENA, 1993, Bamako.
· Keita Sidi, La condition juridique de la femme, ENA , 1979Bamako.
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· Traoré sambala Adéquation ou inadéquation du code du mariage aux réalités socio-économiques du pays, ENA Bamako, 1979.
· Yatassaye Mamadou, L'enfant adultérin en droit malien, ENA, Bamako, 1985.