Guide to Legal Research in Mali
By Servaas Feiertag
Servaas Feiertag works for Transparency International. He worked as senior project manager and legal consultant for the Center for International Legal Cooperation which is based in the Netherlands. He received his Master of Law degree from the University of Amsterdam, the Netherlands and studied French law at the University of Grenoble, France. He has extensive experience in the management, design, implementation and evaluation of legal reform programs in Sub Sahara Africa and South East Asia. He specializes in the institutional strengthening of civil society and the development of paralegal services, and is co-author of the manual for the training of paralegals in Mali (2006). He works on a regular basis in Mali with both the government and civil society organizations in legal reform programs. In 2006, he was part of the team of international experts that evaluated the legal reform program of the judiciary PRODEJ at midterm. He also assists the national board, or Cadre National de Pilotage du Curriculum National du Parajuriste au Mali, to develop the national training program for paralegals and legal aid services.
Published July 2008
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 Faso to the southeast; Mauritania and Senegal to the west; and Niger and Senegal to the east. The national flag consists of three vertical banners of green, gold and red.
The population amounts to 12,324,029 inhabitants and the annual population growth rate is around 2.7 percent. The life expectancy at birth for the population as a whole is, according to research, 49.9 years. For males, the life expectancy is 48 years, and for females 51.9 years.
Mali is comprised of many ethnic groups; estimates are that the Mande represent around 50% (Bambara, Malinke and Soninke) of the population, Peul 17%, Voltaic 12%, Songhai 6%, Tuareg and Moor 10% and other ethnicities 5%. The constitution explicitly forbids any type of discrimination based on ethnicity (Article 2), yet in practice it is very important to what group an individual belongs. This, in turn, has a strong impact on many aspects of the public and private sector.
The majority of the population is Muslim (around 90%), a very small minority is Christian (around 1%) and another minority group represents indigenous beliefs.
French is the official language of Mali (Art. 25 of the Constitution), yet in practice Bambara is the most important language. It is estimated that 80% of the population speaks Bambara and it is used in most official communications. In legal affairs French is still used as the dominant language; however this is mainly limited to urban areas.
Illiteracy is still a big problem in Mali; over 50% of the population cannot read or write.
Mali is one of the poorest countries in the world, and is rated number 175 out of 177 countries according to the UNDP Human Development Index 2006.
Mali has known many great empires between 1591 and 1893, such as the Bambara empire, the kingdom of Kaarta, the Kenedougou kingdom, the Massina, the Toucouleur and the Wassoulou empire. French colonization started in 1893 and gave a new name to the territory—French Sudan— which lasted until 1960.
In 1960, French Sudan and Senegal were joined to become the Mali Federation. Senegal quickly seceded from the federation on Aug. 20, 1960, and French Sudan then changed its name to the Republic of Mali on Sept. 22, 1960, thus gaining full independence from France.
Mali is still a young democracy, in 1991 opting to become a democratic state when President Moussa Traoré was overthrown. 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. He was then succeeded by Mr. Amadou Toumani Touré, or ATT as he is usually referred to. In April 2007, he was re- elected to his second and last term as President of the Malian Republic.
The Malian Constitution, adopted on the 25th of February, 1992, includes fundamental rights for its citizens, which describe both the rights and the duties which citizens bear.
These include the notion that human life is sacred and non violable, the right to life, and freedom of association, demonstration and press. Other provisions include the legality principle, right of ownership and freedom of enterprise, right to education, freedom of unions, the right to strike and the right of asylum.
The Constitution explicitly forbids discrimination of citizens based on race, social origin, color, language, sex, religion or political opinion. Furthermore, it forbids the use of torture and the exiling of individuals, all while guaranteeing the inviolability of property, privacy and family life.
It lists a number of duties for each citizen. Citizens must work for the common good, defend the homeland, pay their taxes and respect the Constitution.
Most of these fundamental rights are internationally recognized and can be found in several constitutions.
Mali is an independent, sovereign, indivisible, democratic, secular, and social state. The Constitution states its principle that the government is there of the people, by the people and for the people.
The Institutions of the Republic are:
In the following sections the organization of the state will be treated following the separation of powers into three branches of power: the executive, legislative and judicial power. This follows the famous doctrine of the trias politica, to which the name of Baron de Montesquieu is so firmly attached. In this model the state is divided into three branches of power which are separate, independent of each other, and all govern their own area of responsibilities. This system has been applied in most democratic states as it is considered to better protect and promote democracy while helping to prevent the development of dictatorships. Mali has adopted this system in its Constitution.
The President of the Republic (Art. 29 – 52 Constitution)
The President of the Republic is the Chief of State and the guardian of the Constitution. He embodies national unity. He must guarantee national independence, territorial integrity, and the respect for international treaties and accords relative to the Malian state. The President watches over the regular functioning of public authorities and assures the continuity of the state.
Election of the President
The President of the Republic is elected for five years by direct universal suffrage, through 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. He can only be re-elected once, and a candidate can thus only serve a maximum of two terms as President.
The President of the Republic is elected by absolute majority in the first round. If no absolute majority can be obtained after the first round of votes, a second round is held on the second Sunday after the first round. This second round is only open to the two candidates that have received the largest number of votes in the first round.
The law defines the procedures, the conditions for eligibility, the presentation of candidates and the proclamation of the results of the Presidential elections. The Constitutional Court controls and guards the regularity and legality of the elections, rules on related complaints, and proclaims the results of the elections.
Powers and Functions of the President
The President of the Republic has a numbers of powers and functions, which include that he:
The President is the Supreme Commander of the armed forces. In addition, he presides over the following councils and committees:
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 in office, the President of the Republic cannot, himself or through someone else, buy or lease anything which belongs or falls under the state’s domain without prior authorization of the Supreme Court, respecting the conditions laid out by law. He cannot participate, himself or through someone else, 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 on either 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 the 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 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 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 and 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 when required by the circumstances in cases where 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 fulfill 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.
The process for election of a new president for a new five-year period then begins. The election of the new President is to take place between twenty-one and forty days after the official recognition of the vacancy or preventative obstacle.
The Ministers and Prime Minister together form the Cabinet. The Prime Minister gets directly appointed by the President, who also appoints the other Ministers at the proposal of the prime minister.
The Cabinet directs and sets the policies of the Nation, and disposes of the armed forces and the public administration. The Cabinet is responsible before the National Assembly according to the conditions and procedures established in the Constitution.
Prime Minister and Ministers
The President appoints the Prime Minister and puts an end to his 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 Prime Minister replaces the President under the conditions prescribed by the Constitution, e.g. to preside over the Council of Ministers, the Superior Council and the Committee for the National Defense.
The Prime Minister is the Head of the Cabinet, and in this capacity he directs and coordinates the cabinet and assures the application of the law and the execution of the national defense policies. He can delegate certain powers to the other Ministers. Before entering into active service, the Prime Minister and Ministers must submit a declaration about their private financial assets to the Supreme Court. This declaration is subject to annual actualization. In addition, there are a number of incompatibilities for both Ministers and the Prime Minister: a Cabinet member cannot be a member of Parliament or of any other public representational body at the national or local level. In addition, it is forbidden to exercise any professional, private and/or other public function or any other paid activities. The law prescribes how members of Parliament who get appointed in the Cabinet are to be replaced.
Government of Mali: President and Ministers
The Government is composed of both the Ministers (including the Prime Minister) and the President. After the April 2007 elections (with the next elections to be held—at the latest—in April 2012), M. Amadou Toumani Touré was re-elected in the second round as President of the Republic of Mali to serve his second and last term. The official election results showed a strong majority of the votes for M. Amadou Toumani Touré in the second round, in which he received 71.2% of the votes. On 3 October 2007 the new government was formed and installed. The new Government consists of:
Government of 3 October ,2007:
Parliament is comprised of one house called the National Assembly; its members are called ‘Deputies’. It currently consists of 147 members, elected for five years by direct universal suffrage. Organic laws prescribe how deputies get elected and to what conditions they need to comply. Parliament, as the legislative power, is one of the key actors in the trias politica; it also disposes of other powers to control government.
Deputies enjoy parliamentary immunity and therefore no member of the National Assembly can be pursued, investigated, arrested, detained or tried for opinions or votes that arise from the exercise of his functions.
A member of the National Assembly may, during the time when parliament is in session, only be pursued or arrested in a criminal or correctional manner with the authorization of the National Assembly, except in the case of a flagrant offense. In the last case a member of parliament can be pursued without the authorization of the National Assembly.
Outside the parliamentary session, no member of the National Assembly can be arrested except with the authorization of the Office of the National Assembly, except, once again, in the case of a flagrant offense, authorized pursuits or in the case of a definite condemnation.
The detention or pursuit of a member of the National Assembly is suspended if the National Assembly so requires it.
An organic law prescribes the number of members of the National Assembly, their indemnities, the conditions for eligibility, the scheme of ineligibilities and incompatibilities. Another organic law prescribes how members of parliament are replaced, in the case of a vacant seat, for the period of office until the new elections of the National Assembly.
Every imperative mandate is null and void. The right to vote of the members of the National Assembly is strictly personal and cannot be delegated. Only in exceptional circumstances can organic laws authorize, for exceptional reasons, delegation of this personal right to vote. In such a case no one can be delegated more than one mandate.
The National Assembly establishes its own rules of procedure. The President of the National Assembly is elected for the duration of the legislature.
Organic laws may only be promulgated after a declaration by the Constitutional Court of their conformity with the Constitution. Thus the Constitutional Court ensures that organic laws are in line with the Constitution.
For a number of other categories of new laws, there are also special provisions and requirements. These predominantly relate to:
Equally, the law determines the fundamental principles of:
The law of the treasury (loi de finances) determines what resources are required for government expenditures. The budget must be adopted by the National Assembly and also determines what economic and social policies the government must develop.
Declaration of war is authorized by the National Assembly in a special session of parliament for that purpose. Then, the President of the Republic informs the nation by an announcement through the appropriate media. States of emergency and states of siege are declared in the Council of Ministers. The declared state of emergency or of siege can only last 10 days; after that term it needs to be authorized by the National Assembly. The law prescribes under what conditions this may be done.
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 start of the budgetary period or if it does not adopt and validate the proposed budget, the Cabinet shall return the budget in the fifteen day period, at which time the National Assembly will meet in a special session to deliberate on the proposed budget. The National Assembly must then take a decision in eight days. If this deliberation does not result in a vote-in about the proposition, then the Cabinet takes up this responsibility based on the formula of the previous result and after the advice of the Supreme Court on the matter.
The Prime Minister, after deliberation of the Council of Ministers, discusses the responsibility of the Cabinet within the National Assembly’s plan before the Assembly or by a declaration about the general politics and policies 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 undersigned 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 about the general politics and policies of the Cabinet, the Prime Minister must submit the resignation of the Cabinet to the President of the Republic.
Last elections for the National Assembly were held on 1 and 22 July 2007 (next elections are to be held—at the latest—in July 2012) and showed the following results. Election results are presented on the basis of the amount of seats won and not by the percentage of votes received. ADP Coalition 113 (ADEMA 51, URD 34, MPR 8, CNID 7, UDD 3, and other 10), FDR coalition 15 (including RPM 11, PARENA 4), SADI 4, independent 15. ADEMA and URD formed in December 2006 to support the presidential candidacy of M. Amadou Toumani Touré, who got elected President in April 2007.
The judiciary is officially independent of the two previously mentioned powers, the legislative and executive powers. Their independence is to be guaranteed by the President, which is an active obligation. Independent does not mean that there are no functional ties with the other two branches of power; it does mean, however, that the executive and legislative power cannot interfere in the distribution of justice.
The judiciary powers are executed by the Supreme Court and the other courts and tribunals. They actively have to guard the fundamental rights and liberties of the Constitution and are charged with applying the law of the Republic in practice, in the domain of justice. The judiciary is composed of the public prosecution (standing magistrature), judges (sitting magistrature) and their supporting staff.
The magistrates are for their functioning not submitted to anything but the law, according to the Constitution. The Superior Council for the Judiciary assists the President in guaranteeing the independence of the judiciary. The Superior Council for the Judiciary is in charge of the management of the careers of the magistrates, functions as the disciplinary body in accordance with the requirements of the law and defines their legal status in respect of the principles laid out in the Constitution. Organic law(s) define the composition, organization, allocations, and functioning of the Superior Council of the Magistracy.
The organization and set up of the Judiciary is largely influenced, if not fully defined, by the French colonial powers. It is charged to apply, in its proper domain, the laws of the Republic. Magistrates cannot be suppressed in the exercise of their duties, except by the authority of the law.
The justice system follows a number of principles. Their audiences and session are open and in public. This is only different when this would present dangers and threats to public order and/or good morals and in those cases the sessions are held behind closed doors.
In Mali, the justice system is organized around the double degree of jurisdiction. The first degree is composed of tribunals of first instance, their detached sections and the peace judges with extended powers. The second degree consists of tribunals and courts of appeal, which will fully investigate the facts of the case again and reconsider the judgment of the tribunal of first instance. In principle, in each case parties can decide to appeal once. However, there are some types of cases for which the tribunals of first instance are the first and last resort. For example, this is the case when the value of a civil action does not exceed 100.000 Francs CEFA (approximately 150 Euros) or when this is foreseen and prescribed by law, as in labor law.
When parties or one party are not satisfied with the judgment, they can start a cassation procedure at the Supreme Court. Both in theory and officially, this does not constitute a third degree of jurisdiction. The Supreme Court is only to judge whether the law has been applied correctly and is not to investigate the facts of the legal matter again. In practice, this does not often function in the way that it is prescribed by law. The Supreme Court Judges also investigate the facts and in some cases control whether the law was applied correctly. This means that in actuality, there is a third degree of jurisdiction as was demonstrated during the evaluation at midterm of the PRODEJ program (10 year legal reform program of the Judiciary) , which took place between November 2006 and March 2007. It is possible that this situation has somewhat changed now.
The organization of the judiciary has been defined and elaborated in a number of laws, notably in the laws of 88-39/AN-RM of 5 April 1988, and 94-006/An-RM of 18 March 1994, about the (re)organization of the Judiciary. In the section below addressing legal practice, I will go deeper into the functioning of the judiciary and also discuss the fact that final legal decisions are hardly ever published and that jurisprudence does not get developed.
The Judiciary is composed of:
Other jurisdictions include:
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:
The Appeals Courts
They may hear appeals from decisions held in the first degree. Each of the three courts of appeal consists 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 a 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.
Courts of Assises
The Courts of Assises are in principle based in one of the three courts of appeal. This jurisdiction rules on criminal cases; it is not a permanent court and has sessions once or twice a year.
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 (150 Euros), cases based on national positive law and customary law relating to civil law. These may include:
The Courts of First Instance are competent to judge criminal cases, on first instance cases, for minor and more serious offenses (delits and contraventions). Malian law knows three types of criminal acts: delits, contravention et infractions) whereas most common law countries use the division of felonies and misdemeanors. Crimes are the most serious offenses, a delit is punishable by a short prison sentence and/or a fine and contraventions are minor offenses.
Administrative courts were created by law n° 88/40 of February 1988. There are 3 administrative courts at:
They are competent to make initial rulings:
The three appeals courts in Bamako, Kayes and Mopti also serve as the appellate courts for decisions made in the administrative courts.
Commercial Courts rule in the following cases:
They rule on litigation between the employee(s) and employer(s), or the litigation relating to collective conventions. The labor 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 minors, the maximum penal charge being 18 years.
The military courts adjudicate such cases as unauthorized carrying of firearms and offences committed by soldiers. These courts are also activated under periods of martial law.
The High Court of Justice (Art. 95 – 96 Constitution)
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 the event 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 their president from among its members.
Peace Justices with Extended Powers (Art. 9 Loi 88-39/AN – RM 5 April 1988)
Peace justices combine the functions of the police, public prosecution, judge and prison for specific cases in criminal law and other competencies in civil and administrative law. This judge has extended powers and is sometimes a civil or commercial judge, while in other cases he or she may be a prosecutor and judge. They are active in areas where there are no courts of first instance or commercial court where they take their functions. In cases where these jurisdictions rule in first and last resort, there’s no appeal possible against the decision of the peace justice. In criminal law, they have competencies with regard to the minor to medium offenses (délits), but not to crimes which have to be brought before a higher jurisdiction.
The Constitutional Court (Art. 85 -94 Constitution)
The Constitutional Court judges and guards the conformity of laws to the constitution; it also guarantees the fundamental laws safeguarding individual and public liberties. It is the regulating body which oversees the functioning of institutions and the activity of the public administration.
The Constitutional Court is comprised of nine members who hold the title of ‘counselors’, with periods of office extending to seven years. Members can only be renewed once.
The nine members of the Constitutional Court are assigned in the following manner:
The Counselors are chosen among professors of law, lawyers and magistrates with at least fifteen years of practice, in addition to qualified experts with relevant experience in the required areas.
The President of the Constitutional Court is elected by his peers. In the event of a temporary inability, his position shall be filled by the eldest counselor. In the event of a member’s death or dismissal, the respective nomination authority will name a new member who 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 Constitutional Court rules, in a case in which the validity of an election is contested, of any candidate, any political party or delegate of the Cabinet, according to the conditions defined by law.
Organic laws must be submitted by the Prime Minister to the Constitutional Court before their promulgation. 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 term necessary for the promulgation of the law in question. A provision deemed or declared unconstitutional cannot be promulgated or applied.
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:
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 which is of an economic, social or cultural nature. It may collect and draft, with the participation of the entities of which it is composed, a collection of expectations, needs and problems of the civil society that have arisen out of its orientation and proposals. These would be brought to the attention of the President of the Republic, the Cabinet and the National Assembly.
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 which is of importance to local and regional development. It may make proposals to the Cabinet on any issue concerning the protection of the environment or 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 of ‘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.
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
Ecole des hautes etudes pratiques: One of a number of institutions of higher education specialising in various fields, reporting to the Direction nationale de l'enseignement superieur of the Ministere Education Nationale.
Ecole Nationale d'Administration: One of a number of institutions of higher education specialising in various fields reporting to the Direction nationale de l'enseignement superieur of the Ministere Education Nationale.
Institut d'économie rurale (IER) The Institute of Rural Economy makes an important contribution to the spread of information and techniques used by scientists and researchers working to advance national agriculture programs.
The Constitution and various organic laws establish and organize the key public institutions of the Malian public and legal sector. In 1991, the Republic of Mali opted to take the path toward the development of the rule of law and a pluralistic democracy. That process is ongoing, still demanding work for which all state and non-state actors need to be mobilized and sustained. The national legal framework, which is to a very large extent inspired by and a reflection of the French legal system, theoretically provides all safeguards for the fundamental rights of citizens. Nevertheless, the legal practice is not always in line with the theory. In this section I will discuss the legal practice with regard to the legislation, the judiciary, access to justice, formal an informal justice and reforms of the Malian legal sector.
Mali is part of the civil law tradition and has adapted substantial parts of French legislation in various areas, such as in private law, administrative law and criminal law. New legislation has also been adopted and promulgated, but there are many problems with regard to their distribution and their consistent application in practice. Legislative procedures are time-consuming and, in some cases, even seem to have stalled. For instance, the new family code has already been under deliberation for many years, but it seems very difficult to reach sufficient levels of consensus among all stakeholders involved to agree upon a revised version which will—among other things—improve and recognize the rights of women and children. This has actually become a quite sensitive subject and it is not likely that the new family code will be adopted in the near future. The problem of distribution of legislation regards practically all areas of law. This means that, in practice, citizens are not aware of their rights and obligations under the national positive law.
This problem has been recognized by both the government and the donor community, who agreed to take action to improve this situation. The Malian context has to deal with additional requirements for effective distribution as the majority of the population is still illiterate and therefore cannot be reached or informed by written media. Several initiatives have been developed to improve the distribution of legislation through television, radio and the internet. The focal point of internet communication efforts revolve around www.mali-justice.org. However, these actions have not done enough to effectively inform the majority of the population regarding their rights and obligations. This will require additional activities, in which the paralegals mentioned below might play an important role.
In practice this means that national positive law is mainly applied in the urban areas where the tribunals and legal professions are represented. However, in rural areas these institutions and legal professionals are very scarce or nonexistent within reasonable distances. That is one of the main reasons why in rural areas the application of customary law usually dominates in the daily practice. Sources for customary law are predominantly the local versions of Shari’ a law; that said, customs from other traditions and sources are also applied. Thus the image of a legislative system arises within which lie serious challenges to the distribution of the national legislation. This leads to the conclusion that, in practice, the system can best be characterized as legal pluralism.
The judiciary faces a number of challenges, and does not have a very good image in Mali. Many of the complaints about the judiciary have to do with the independence, impartiality and quality of the judiciary. Before 1992 the judiciary clearly was not set up to function as an independent judicial power, but merely served as the legal arm of government. This changed at least from a legislative perspective in the Constitution of 1992, but some of the mentioned challenges still need attention today. This was recognized by the government, and to improve this situation a big legal reform program was defined and set up. The start of the program was promising, as it included a consultation of the population in 1998 which led to a program whose objectives were to improve the structural functioning of the judiciary in accordance with the principles of the rule of law.
Another challenge is that the salaries for members of the judiciary are not very high while the status of a judge is not comparable to his or her colleagues in Western countries. Usually courts are not well equipped and organized, which is linked to insufficient financial support. In addition, most courts complain about issues that have to do with court management, like case overload and serious structural backlogs. Other problems include the absence of published decisions and challenges regarding the carrying out of decisions. This, in turn, creates a dynamic that fosters the continuation or even aggravation of said problems. All together, it is not easy to function well in the judiciary; still, there are many judges and prosecutors who are very motivated and who work demonstrates high integrity. Nevertheless, it cannot be denied that the judiciary needs to be strengthened in almost all areas.
The Need to Develop Jurisprudence
In Mali very few legal decisions get published and therefore there is hardly any jurisprudence available or developing. This absence of jurisprudence creates a number of significant problems. First of all, it undermines the unity of law as equal cases and legal questions are judged in very different ways. This depends upon the interpretation of the individual judges in question and there are no general policies which make for quite unpredictable outcomes. In turn, this leads those parties who are not satisfied with the decision to almost automatically appeal. Since there is no confirmed practice or policy, it can well pay off for an individual to give it another try in appeal. It is, of course, important that an individual can appeal a decision in the two degree system to safeguard the interests and rights of citizens. This should not, however, mean that almost every case gets appealed, creating enormous backlogs, even though a consistent jurisprudence could be developed that would provide clarity to all actors involved.
All final decisions from the judiciary should be published—something that is even more applicable to the Supreme Court. As head of the judiciary, the Supreme Court is probably best positioned to start to define and set policies through the structural publication of all their final decisions. Now almost all appeals eventually end at the Supreme Court when parties decide to start the cassation procedure. By establishing stable and sustained jurisprudence, the Supreme Court will stimulate the unity and predictability of the judiciary and contribute significantly to the reduction of backlogs. The unity gets reinforced as lower jurisdictions usually respect established and confirmed jurisprudence because of the simple fact that a higher jurisdiction will otherwise replace and annul their decision each time in appeal, when these are contrary to established and sustained jurisprudence. It will have impact on the amount of appeals and cassation procedures that parties start. When parties know that their case is most likely to be denied in appeal or cassation, because of the sustained jurisprudence of the Supreme Court and appeal courts, then it will be a lot less attractive to ‘give it another try.’ This will help ensure that cases no longer automatically end up with a cassation procedure, and that the influx of cases is very likely to be reduced as well. It remains, of course, crucial that lower jurisdictions will have access to the jurisprudence, maybe through the establishment of a monthly journal or through ICT related media.
Another problem with the cassation procedure is that the Justices of the Supreme Court at present often still research the facts of a case and do not limit themselves to judging the application of the law alone. This means that, in practice, one could argue that Mali has a three degrees type of judicial system. Of course, there are also cases in which the Supreme Court judges the proper application of the law alone; however, there seems to be room for improvement. When the Supreme Court limits itself to the right application of the law, it can be expected that this will have a positive impact on the judiciary by negatively impacting the development of backlogs. Most of these problems are recognized by legal professionals inside the judiciary, and there seem to be initiatives underway to improve the situation.
Reform Program of the Judiciary: PRODEJ
As mentioned above, the judiciary has been receiving a lot of criticism, and in 1998 a national consultation was started to set up a program meant to reform the judiciary. A national forum was established that included representatives of all parts of the population and key actors of the legal sector. This national forum was asked, through consultations, to express what reforms meant to improve the functioning of the judiciary should consist of. Recommendations and demands mainly consisted of reforms to establish the ten year legal reform plan, PRODEJ, in order to create:
The ten year program effectively started between 2001 and 2002. It can be concluded that over the first five years (until 2006) there was insufficient political will and determination within the ministry of justice and among other key stakeholders to really achieve the substantial reforms envisaged at the start of the program. The program’s success depended on the political will of the Ministry of Justice, which turned out to be one of the main weaknesses in the design of the programme. However, it should also be recognized that some results have been achieved and that, for instance, the infrastructure has been improved. For example, new services have been developed to assist citizens when they have to appear in court and, significantly, the programme has published and made available the main national positive legislation on their website: www.mali-justice.org. In addition, it is fair to say that at the time when the programme was designed, it was very common to take the top down approach, concentrating on strengthening public institutions through technical assistance. Many developing countries have seen the set up and design of similar programmes aimed at strengthening their judiciaries or other elements of the legal sector. PRODEJ has been evaluated at mid term, and it is very well possible that this programme is still going to make strong contributions to the development and strengthening of both the formal and informal justice systems. However, to date it has had an insufficient impact on the functioning of the judiciary and will need to develop and apply new strategies and approaches to achieve some or all of the goals of the reform program. It must of course be noted that there are also judges and prosecutors within the Malian judiciary that are functioning very well and with the highest integrity. The PRODEJ program has nevertheless demonstrated that there are a number of problems as well.
Top Down and/or Bottom Up Approach
The PRODEJ reform program has adopted a top down approach, which at the time of its conception and design, was the dominant paradigm within the donor community and this still seems to be the case for several donors. The basic beliefs and expectations of this paradigm are that legal reforms have the most impact on the legal sector and society when activities concentrate on the reform and strengthening of public institutions. The idea is that a better functioning judiciary will benefit society and that this can best be accomplished by financing and designing programmes to reform the resources and infrastructure within these institutions.
Stephen Golub described some of the key criticisms on this top down approach, which he named the rule of law orthodoxy in his article ‘Beyond Rule of Law Orthodoxy (2003)’. According to Golub, there are a few disadvantages such as a narrow focus of the legal professions that will determine the institutional focus and especially little involvement of civil society organizations, which usually doesn’t go further than some consultations, but which are not meant to make them participate actively. He suggests getting more involvement from civil society in both the design and implementation. Often and by many authors it has been suggested that civil society can play a very important role in legal reforms by bringing their knowledge about local dynamics and needs to the project. In the case of the paralegal services this goes even beyond that, as the key expertise and experience in legal aid resides merely with civil society organizations and less within state institutions.
Stephen Golub and others suggest allowing civil society organizations to take a more prominent role in the development of rule of law initiatives, and it seems that in Mali this is well underway with the hopes of getting increased attention and support from the donor community.
As so often with paradigms and models, it is probably best to combine both top down and bottom up approaches, a stronger role for civil society organizations, and to consider them as complementary approaches (and not as opposite choices that have to be made) to strengthen the rule of law and to effectively reform the legal sector. In addition it must be noted that there is no one single best way to achieve effective and sustainable reforms; this will always depend on the local context.
Access to Justice
Access to justice in Mali has to deal with geographical issues and technical, legal and socio- economical issues as well. The geographical issues relate to distances between the population and the courts. In urban areas there is usually a court within a distance that allows citizens to be present without the need for substantial travel. In rural areas this is quite different. Not only are transportation means reduced to walking or mechanical ways of transport, but the distance to the nearest court can easily range over more than 200 kilometers. That effectively reduces the access to justice to a very low level. Other problems include the limited amounts of attorneys at law and other forms of legal assistance. It is very difficult for attorneys to establish a sufficiently profitable practice in rural areas as there are simply not enough people that can afford to hire an attorney and pay their fees. This means that the vast majority of cases with a legal nature, such as divorces, inheritance or transfer of real estate need to be resolved through the intervention of the traditional powers in villages and communities, such as the village chief (chef de village). These traditional powers usually apply customary law and have established a more informal type of justice as opposed to the state courts and tribunals. This does not always produce good results for vulnerable groups, such as women and children, and this problem has actually been recognized by both the state, donors and, very important, civil society organizations. What they have recognized is that it is important to improve the situation with regard to the geographical distances between the state courts and the population; they also argue that legal assistance should be made available and feasible for the (poor) population in rural areas where conflicts of a legal nature might arise.
Legal Assistance in Rural areas: Development of Paralegal Services
Several NGO’s (Non Governmental Organizations) have already developed activities in reaction to this situation in the late eighties of the last century. They started to provide various forms of legal assistance to the population, notably to the poor who cannot afford to hire academically trained legal professionals. These forms of legal assistance are called paralegal services. This type of service is defined as legal assistance provided by people who are not always academically trained lawyers, yet who have acquired a certain level of expertise with regard to assisting citizens to solve problems of a legal nature. (This is a completely different concept from paralegal services in the western world. Paralegal services in the western world are more to be seen as legal assistants to attorneys that prepare and assist them in legal cases.) This form of service is highly relevant to Mali’s greater context, as it is estimated by DFID that more than 90% of all conflicts with a legal nature on the African continent are settled outside courts.
However, the development of paralegal services was not done in a very systematic way. Legal clinics travelled around in rural areas and the quality and contents of the legal assistance depended on the orientation and education of the involved individuals. For instance, many NGO’s in Mali are involved in the promotion of the rights of women and children, while others concentrate on human rights and democracy. Usually NGO’s concentrate on the subjects that they can master and which are part of their mission. However, the daily practice in rural areas requires more than these specific orientations. This was recognized by several NGO’s, and a more systematic approach to paralegals and their services was established throughout 2006.
It started with the NGO Deme So, who recognized and pressed the need for concertation of paralegal services. They started to prepare such concertation and made sure that representatives of the state were involved throughout this process (this included, among others, the INFJ—the National Trainings Institute for the Judiciary—which has been very important in that process). In February 2006 a national conference was held in which the national curriculum for the training of paralegals was established. Representatives from the government, civil society and the population worked together in working groups to discuss, elaborate and finally establish the national curriculum for the training of paralegals (which can be downloaded for free at www.cnpcpmali.org). The establishment of the national curriculum is crucial, as it recognizes the needs of the population (especially vulnerable groups) in both rural and urban areas, and even more so because it was and continues to be a successful example of cooperation between both state and non-state actors.
The following 9 themes were established, validated and adopted at the conference at Bamako in February 2006:
This public-private cooperation was then followed by the installation of a national board that is responsible for making the national curriculum operational. Secondly, they must establish a national and regional coordination to support the training of paralegals and their functioning in the field. The national board consists of civil society organizations that were instrumental in the creation of the national curriculum and are steering to make both the coordination in the field and the national training program operational. More detailed information about the national board can be found at their website at www.cnpcpmali.org.
This systematic approach is very important, as it makes it possible to provide legal assistance to the population in rural areas, yet also in urban areas. It does this in a way that reflects the themes that are important and relevant for the socio-economic development of the citizens and creates a national, uniform standard, which is to the benefit of society. In the next few years, these paralegal services will have to further be developed and rolled out in the villages of the whole country. The effective roll out will ensure that citizens get access to justice, even when this means that the services of attorneys at law and other legal professionals clearly continue to be indispensable. Both because of their level of technical expertise and their formal requirements, such as legal requirements for legal representation in criminal cases, only attorney’s at law who are members of the bar can do this. Thus, there are clearly limits to what a paralegal can do. In those cases, they must refer cases to qualified legal professionals. This has been explicitly expressed in the statute of the paralegal, which can be downloaded at the website of the national board.
According to article 1 of the statute of paralegals, a paralegal can be a man or a woman and will have to know about the sociological realities in the villages. They are non-academically trained people who provide legal assistance to the population. Article 5 of the statute of paralegals describes their activities.
The responsibilities and activities of paralegals include:
It is therefore a system of legal assistance that is complementary to the formal justice system. It does not come in place, but bolsters the much needed improvement of informal justice while enhancing access to formal justice.
Mali is a young democracy which has achieved a number of successes on the road to becoming a stable and well functioning democracy which respects the rule of law. However, there are a number of problems in both the formal and informal justice system which still needs attention and improvement. Such problems include the functioning of the judiciary, the distribution of law and access to justice. It is most likely that such results can best be achieved through both top down and bottom up approaches that respect and consider the local context and dynamics of Mali. Through the development of paralegal services, a considerable contribution can be made to the distribution of law and to providing legal assistance to citizens in rural areas, who definitely need such services to stimulate and sustain their socio-economic development. This article highlights a number of challenges, while also seeking to underline the fact that many initiatives and individuals are very committed to bringing about the necessary improvements.