UPDATE: Guide to Legal Research in Mali

 

By Servaas Feiertag

 

Servaas Feiertag is an independent consultant and international expert at Servaas Feiertag Consultancy working on Rule of Law promotion, justice reform, access to justice and anti-corruption mechanisms at a state, institutional, and grassroots level as a technical expert, lead researcher, senior evaluator, expert on program identification and design, and trainer in Africa, the Middle East and Asia.

 

Over the last 22 years he has held various senior expert and management positions at the international level, such as principal legal counsel, Program Manager in the Africa and Middle East department at the international secretariat of Transparency International, as a legal consultant for the Center for International Legal Cooperation and previously as a senior project manager and technical consultant in the business sector with multinationals such as Shell, Philips and the Internet company @msterdam, of which he is the co-founder. He received his LL.M from the University of Amsterdam, the Netherlands and his MSc. Public Administration from Leiden University, the Netherlands and studied French law at the University of Grenoble, France.

 

Servaas Feiertag has worked on a regular basis in Mali since 2005 with central government, public institutions and civil society organizations on the strengthening of the rule of law, access to justice and anti-corruption work. Some examples of his work include the midterm review of PRODEJ (the ten-year justice reform program), the development of paralegal services and promotion of access to justice with civil society organizations. More recently he has worked on the analysis of the justice sector after the 2012 crisis and an assessment of rule of law promotion donor efforts and their results between 2012 -2015.

 

Published November/December 2016

(Previously updated in July 2008)

See the Archive Version!

 

 

1.     Introduction and Use of This Guide

Mali made headlines in the world news in March 2012 following a coup d’état by a number of low ranked army officers. Starting in late 2011, the Mouvement National pour la liberation de l’Azawad (MNLA) had attacked several army camps and other strategic sites in the North of Mali. Later Jihadist groups seized power and control over large parts of these Northern provinces. Many severe human rights abuses occurred and still many of these cases need to be handled. International military forces came to the assistance at the request of the Malian government and still continue to do so under an UN mandate. These events and the following crisis continue to present serious challenges for effective state building, restoration and strengthening of the rule of law, but most of all for people living in Mali. Many studies have been published about the causes and consequences of this crisis of which many can be found on the internet. It is warmly recommended to read these studies, but these will not be discussed in this update to the guide to legal research in Mali. 

 

This update to the previous versions of the guide is published to support legal research on the Malian legal system and people that are interested in the Malian legal system. It concentrates on the constitutional legal framework, the state of the rule of law, the themes of corruption and integrity and access to justice. It is not intended for practical legal use in concrete cases, but aims to contribute to a better general understanding of the legal system of Mali. It is therefore important to note that the guide does not pretend to be exhaustive, complete and to address all themes that are relevant in Mali today.  For any concrete cases it remains necessary at all times to get qualified legal advice and assistance before considering any actions. An addition challenge is the effective translation of some civil law legal concepts into English as many Anglophone countries have adopted common law systems and therefore may have a different meaning, sometimes it is only a small nuance, but should be observed. Therefore, researchers and readers are recommended to consult the original legal texts and documents in the (official) French language, also in recognition of the fact that the legal framework regularly changes and will continue to do so. It must be noted that not all legal texts may be available online, but some links are provided to legal resources and information and which may need to be reviewed and updated over time.

 

The structure of the guide is as follows: an introduction presents basic data on the country and population and a short history of Mali. It describes some aspects of the state of the rule of law, the themes of integrity & corruption and access to justice and finishes with a description of the constitutional legal and institutional framework.

 

2.     Basic Data

The landlocked country of Mali covers an area of 1,240,192 square kilometers.  It is the largest country in Western Africa and 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 to the east. The national flag consists of three vertical banners of green, gold and red. The capital of the country is Bamako, which has 2.515 million inhabitants (2015). Approximately 40% of the population lives in urban areas and the ongoing trend is for people to increasingly move from rural to urban areas.

 

Mali has a population of 16,955,536 (July 2015 est.), of which more than 65% is not older than 24 years. The life expectancy at birth for males is 53.48 years and for females 57.25 years.

 

Mali is comprised of several ethnic groups; Bambara 34.1%, Fulani (Peul) 14.7%, Sarakole 10.8%, Senufo 10.5%, Dogon 8.9%, Malinke 8.7%, Bobo 2.9%, Songhai 1.6%, Tuareg 0.9%, other Malian 6.1%, from member of Economic Community of West African States 0.3%, other 0.4% (2012-13 est.). The constitution explicitly forbids any type of discrimination based on ethnicity (Article 2).

 

The majority of the population is Muslim (94.8%), followed by Christians (2.4%) and Animists (2%). The remaining 0.8% is not formally registered under any religion. Even though animists only represent 2% of the population, it is often claimed that several animist traditions remain important to this day.

 

French is the official language (Art. 25 of the Constitution), however in practice Bambara is the language that most people speak and understand. French has remained the official language in the administrative and legal practice, which obviously includes the justice sector and is also used in all formal legal documents, such as passports, birth certificates and such. The capacity to understand and read the contents of such legal documents remains limited as more than 50% of the population cannot read or write.

 

Mali is one of the poorest countries in the world and ranks as number 179 out of 188 in the Human Development Index 2015 with a score of 0.419. Whilst this score puts the country in the low human development category, it is still an improvement in comparison to the score in 1980, which was 0.199. Areas of progress are the increased life expectancy at birth, years of received education and the Gross National Income. The score is lower than the average score of 0.518 of African countries, but higher than several regional neighbors such as Burkina Faso (0.402) or Niger (0.348).

 

3.     History

The territory know today as Mali has been part of 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 they gave a new name to the territory: French Sudan.

 

In June 1960, French Sudan and Senegal became independent from French colonial rule and were joined to become the Mali Federation. This union did not last as Senegal quickly seceded from the federation on August 20, 1960. French Sudan then changed its name to the Republic of Mali on September 22, 1960, thus gaining full independence from France. Today, September 22 is celebrated as the national Independence Day.

 

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.  The President can only serve a maximum of two terms of five years and thus his successor Mr. Amadou Toumani Touré or ATT (as he is usually referred to) was elected in the following elections.  In April 2007, he was re-elected to his second and last term as President of the Malian Republic. In the last weeks of his second and last term, Mali had already sunk into a deep crisis and was at war with Tuareg groups in the North of Mali when a group of mid level army officers led by Amadou Sanogo seized power through a coup d’état. They could not hold on to power and following the French intervention, Dioncounda Traoré was appointed as interim President. General elections were organized and on September 4, 2013, Mr. Ibrahim Boubacar Keita or IBK was inaugurated as President after an overwhelming victory.

 

4.     Rule of Law & Justice Sector

The restoration of the rule of law after the 2012 Coup d’etat is an important theme in Malian politics and society and also identified as a priority by the international donor community. Strengthening the rule of law is an ongoing theme, which was reflected by PRODEJ, the ten year programme that was designed and implemented to develop the justice sector. Between 2000 and 2012 Mali received international financial and technical assistance to strengthen the justice sector. The results that were measured through evaluations and following analysis of the justice sector unfortunately did not show enough progress. This was reflected by the low trust in and the negative perception of the justice sector among the population. Complaints included slowness, abusive procedures, incompetence and corruption, which were further exacerbated by the 2012 crisis.[1] Nevertheless, it must be noted that some progress has been made in a number of areas such as the modernization of the judicial organization and the legal infrastructure, be it incomplete, and that many of its objectives continue to be pursued at present. The National Prospective Study 2025 included several objectives that continue to be relevant today: to establish a modern, independent and accountable justice sector, which operates efficiently and effectively in full compliance with the rule of law.

 

Research on the criminal justice sector[2] after the crisis identified  a number of structural challenges and some of the recommendations of the research to improve this, included:

 

Clearly, these reforms have momentum because of the terrible consequences for the population during and after the 2012 crisis. Such reforms benefit from a strong legal and policy framework, which will be discussed in the following sections.

 

5.     Legal and Policy Framework

The legal framework is based on and strongly inspired by the French legal system, which was introduced during colonial times and contained several special elements that reflected the interests of the colonial power.

 

6.     Conventions

Mali has ratified many international human rights conventions, including it subscription to Universal Declaration of Human Rights of 10 December 1948 and the African Charter on Human and People’s Rights of 27 June 1982, which are both explicitly mentioned in the Constitution.

 

7.     Constitution

The Constitution includes several safeguards and principles that promote and protect democracy and rule of law; some important elements include the separation of powers, organization of elections, and the limitation of a maximum of 2 mandates for a president. These principles and other elements such as related organic laws will be discussed in detail in the section on the Constitution below.

 

8.    Policy Documents

Two important policy documents are the Etude National Prospective Mali 2025 and the Strategic framework for growth and poverty reduction (CSCRP) 2012-2017. To date there is no comprehensive sector wide strategy document for the justice sector available. Several justice reform plans are described in the ten-year program for the development of the justice sector PRODEJ of which quite a lot of information can be found on Justice reform website of the Malian Ministry of Justice[3] and the official PRODEJ website.[4]

 

The CSCRP mentions the need to strengthen access to justice, the efficiency and effectiveness and the credibility of the justice sector through modernization of justice structures, strengthening of staff capacity and reaffirmation of values to be implemented on the basis of the PRODEJ strategic plans.

 

The vision for the justice sector is the emergence of a rehabilitated justice sector, which performs with efficiency and credibly. The general objectives of the justice sector are the anchorage of the rule of law, to guarantee social peace and development.

 

9.     State and Customary Law: Legal Pluralism

Legal certainty is often negatively affected by legal pluralism, which is the situation where multiple legal systems exist at the same time. These multiple can sometimes complement each other, but often compete for application. In such cases, legal pluralism challenges the assumption of the state monopoly on law making. During colonial times multiple systems already existed, with rules that established hierarchies between the different types of law. It must be noted that these were defined to serve the interests of colonial powers. Colonial powers had less interest in how legal matters between Malian citizens were handled and left these governed and addressed by customary law. However, as soon as a legal issue would involve an European, then colonial law applied.  Since decolonization several legal reforms took place and in the 1992 Constitution there is the provision that existing laws remain in force, which applies to customary law as well. Conditions are that existing laws do not conflict with the Constitution itself or were in the process to be abolished. This still can create confusion among people as they often do not know what norms and procedures will and should apply in a concrete case and that makes them vulnerable to manipulation. In general, one could say that state law is mainly applied in urban centers and customary law in rural areas, which in the case of Mali are strongly influenced by religious laws, for example in the area of family law. Often criticism is expressed that customary laws may violate human rights, especially of vulnerable groups. The state and donor community increasingly expresses to be interested in a constructive engagement between state and customary systems, which is also reflected in the law on the judicial organization that identifies district courts that apply customary law. This creates better conditions to address such questions of what laws need to apply in a concrete case. [5]

 

It is however important to note that such constructive engagement can be challenging as state laws and customary laws have different paradigms. These are, for example but not limited to, reflected in the overall orientation of customary law, which is primarily restorative in nature and based on serving the interests of the community as a whole. State laws are more based on win-lose approaches with an emphasis on individual rights and obligations, which also stems from its Western origin of colonial laws. These different paradigms present complex questions and issues, but could however be subject to approaches to build hybrid legal systems in which both customary and state law become sources of law that can help to effectively deal to solve legal matters. This is still a terrain that needs to be further elaborated and tested, but is potentially an option to be developed with the use of digital systems that can facilitate such types of adjudication in practice.

 

10.  Access to Justice

Access to Justice is throughout many policy documents recognized as an important element of the rule of law in Mali. It needs strengthening as several problems continue to limit effective access to Justice of people, which include:

 

Paralegal services have been developed by civil society organizations to assist people, but these still remain limited in number and scope of services in relation to the demand of the population. Some programs have been designed and financed to further develop paralegal services to better meet the demands of the population.

 

11.   Integrity and Corruption

In the following two sections the themes of integrity and corruption are discussed.

 

12.  Judiciary Regulations and Ethics Code

The law N°02-054/of 16 December 2002 on judiciary regulations[6] lists the rights, privileges and duties of magistrates, of which the scope of application changed after the revision of the law on the judicial organization 2011-037/AN-RM of 16 July 2011. It is important to note that both judges (sitting) and the prosecution (standing) magistrates are subject to this law.

 

Safeguards include that the Council of the Judiciary[7] decides on transfers, promotions, disciplinary actions and dismissals of magistrates and adds that magistrates should not be attacked or blocked in the exercise of their duties. Obligations include the acceptance that their office is incompatible with paid political activities, but can engage in research, literary and artistic activities. Magistrates are allowed to teach, but with the previous approval of the Minister of Justice,. The law further includes sections on holidays, recruitment, appointment, positions, activities and justified absences, salaries, disciplinary regime, promotions, termination of (active) service as a magistrate.

 

13.  Ethics Code for Magistrates

Mali is the only country in the sub-region with an ethics code for the judiciary[8], which is an annex to the law N°02-054/of 16 December 2002 on judiciary regulations. The ethics code is structured as follows: general provisions, independence of the judiciary, obligations of magistrates and final provisions. The ethics code list duties of magistrates and guidance on what kind of behavior is seen as appropriate for its members. The ethics code puts strong emphasis on independence, impartiality and incompatibilities.

 

Ethics are defined as the body of rules that governs the activities and the behavior of the members of a profession. Independence of the judiciary is stated as an indispensable condition for an impartial judiciary. And these two elements are repeated in a number of articles in the ethics code. The code is set up as an instruction to the executive branch in the Constitution, but also to individual members of the judiciary. Individual magistrates have to respect the independence of the judicial branch and promote measures that guarantee and develop it further. That includes the individual responsibility of the magistrate to protect the independence of the judiciary and that all attempts to influence his decisions must be dismissed. The law states that members of the judiciary will be defended against threats and unjustified pressures and becomes liable to pay damages if it fails to effectively protect the individual magistrate.

 

The behavior of the magistrate must demonstrate high moral standards in all circumstances, and must especially refrain from any behavior or action that may damage the public trust in the primacy of the law and the independence of the judiciary.

 

Duties that the magistrate must respect are integrity, diligence, impartiality and equality. Integrity and diligence mean that the magistrate must cultivate an image of integrity and impartiality and behave in a way that gains respect. The magistrate must respect the law and reasonable timelines in the execution of his professional duties. On impartiality and equality the code elaborates with duties such as impartiality at all levels, treatment of all parties must be proper and non-discriminatory and ensure that all people are equal before the law. The magistrate refrains from any activity that may compromise his impartiality or appearance thereof.

 

The magistrate withdraws himself from a case if he:

 

The magistrate can get involved in charity work and civic activities as long as these cannot harm the exercise of his functions and/or the impartiality of the judiciary. Magistrates can also participate in public debates that discuss the independence, impartiality and fundamental questions about the administration of the judiciary. However a number of activities are incompatible and not allowed. These include any activity that is deemed to be incompatible and when in doubt about the nature of an activity, a magistrate can request individual permission to perform this activity.  Any political position at Parliament or a regional public institution as a result of elections is incompatible.

 

The following activities are forbidden:

 

Final provisions state that magistrates reside in the jurisdiction where they execute their rights and duties. Exceptions can be made, but should remain exceptions.

 

Magistrates are allowed to organize themselves in professional associations.

 

Violations and/or non-implementation of duties or forbidden acts all constitute a disciplinary offence. Outside of any disciplinary actions, the president of the judicial services and its inspectors can issue formal warnings to magistrates.

 

The code of ethics can be compared and analyses against international standards, such as the Bangalore principles for judicial conduct[9], but also of other national jurisdictions such as the Canadian ethical principles for judges.[10]

 

14.  Corruption

Transparency International defines corruption as: “Corruption is the abuse of entrusted power for private gain. It can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs’.[11] Many other definitions exist, such as from the World Bank or the OECD.

 

Mali has signed (in 2003) and ratified (in 2008) the United Nations Convention against Corruption (UNCAC).[12]

 

After the elections of 2013, the new President announced that the fight against corruption would be a priority of the government. This shows that the problem of corruption was recognized as a serious problem for Malian society and expressed the importance that the government attached to it. It is a sensitive problem and there is insufficient information available to give an overview of the current state of corruption, even though in many articles, news items and also the announcement of the President in 2013 strongly suggest that it is a serious problem. In the absence of hard data that can demonstrate the state and impact of corruption, it is relevant to consider indices that measure the perception of corruption.

 

A number of indices measure the perception of corruption, for example, the Corruption Perception Index of Transparency International (CPI). The CPI measures the perception of corruption in a country and since 2012 scores can be compared between years. A perfect score is 100, which means that the perception is that there is no corruption. The scores of Mali on the perception on corruption are at the lower end of the scores and have not changed a lot over the last 4 years. This suggests that actions to reduce corruption have not resulted in significant improvement of the perception on corruption in Mali as measured in the CPI. It must be noted that it is a normal phenomenon that the translation of anti corruption activities into improved scores in the CPI takes time and is usually preceded by a lower score in the short to medium term. A possible explanation is that anti-corruption activities first result in enhanced awareness about corruption and a rise in prosecuted corruption cases, which can impact on the perception that the problem of corruption may be on the rise as well and produce a lower score in the CPI. However, longer term such anti-corruption activities are likely to lead to better scores in the CPI.

 

Transparency International – Corruption Perception Index

 

TI CPI - Year[13]

Score (0-100)

Rank

2012

34

105

2013

28

127

2014

32

115

2015

35

95

 

The Mo Ibrahim Global Integrity Index reviews 6 groups of indicators on rule of law, accountability, civil service integrity, elections, public management and access to information & openness to produce the score for a country. The scores are made on a scale from 0-100; scores of 0-20 are rated as very weak and scores between 81 and 100 are rated as very strong on accountability and transparency. Mali showed stable results with little overall fluctuation during the last 4 years, scoring between 41 and 60, which is labeled by the Mo Ibrahim Global Integrity Index as somewhat weak.

 

Global Integrity Index on Transparency and Accountability[14]

 

Year

Overall

Score

Score on Rule of law

Score on Accountability

Score on

Civil Service Integrity

2013

52

50

66

46

2014

52

47

69

38

2015

49

58

69

38

2016

55

64

61

42

 

Still, it must be noted that a number of initiatives have been taken to combat corruption; new laws have been defined such as the law against illicit enrichment and a Central Anti-Corruption Office and court decisions are increasingly published, which enhances transparency of decisions. During the development of this guide the law against illicit enrichment was still awaiting its promulgation and the new Central Anti-Corruption Office still had to be operationalized, but these are definitely expected to take place in the near foreseeable future. On the basis of the UNCAC a number of additional anti-corruption laws could be adopted as well, in which Mali could benefit from the experiences in other countries with relevant contexts. It is expected that in the next few years it will become clear what the impact of anti-corruption efforts will be.

 

International & Development Cooperation

Justice reforms over the last 15 years demonstrated that most funds have been spent on legislative reforms and institutional strengthening and according to some evaluations; such as the midterm review of PRODEJ these did not produce sufficient impact on the functioning of the justice sector. Donors and the Malian government work together on this and the donor community has developed a website of the cooperating donors, which can be consulted to verify progress among other possible sources, such as IATI.[15] To date few donors have funded anti-corruption programs; the only donor funded project that could be identified during the development of this guide was JUPREC, a program funded by Canada. This may however change over time and should regularly be verified at the identified sources.

 

15.  The Constitution

In this section the main elements of the Constitution[16] are discussed and in some cases with related laws, such as in the case of the composition of the judiciary.

 

16.  Preamble of the Constitution

The preamble commemorates and expresses the commitment of the sovereign people of Mali to the victims of the repression and the martyrs fallen for the ideal of the Rule of Law and pluralist democracy. This includes, among other statements, the subscription to the Universal Declaration of Human Rights of 10 December 1948 and the African Charter on Human and People’s Rights of 27 June 1982.

 

17.  Fundamental Rights and Duties of Human Beings (Art. 1 – 24 Constitution)

The first title of the Malian Constitution, adopted on February 25, 1992, lists fundamental rights of human beings and legal principles. It contains a number of traditional human rights, but also social human rights.

 

Article 1 states that human life is sacred and non-violable and attributes to each human being the right to life, freedom, security and mental and physical integrity (article 1).

 

Other provisions include the fundamental rights to 1) freedom of thought, conscious, religion, cult, expression of opinion and creation within respect of the law, 2) freedom of movement, association, assembly and demonstration, 3) freedom of the press is guaranteed under the conditions determined by the law, 4) secrecy of correspondence except for limitations under the law.

 

The Constitution explicitly forbids 1) discrimination based on race, social, color, language, sex, religion or political opinion, 2) torture and inhuman, degrading, cruel or humiliating treatment, which is to be punished by law, 3) the exiling of individuals, all while guaranteeing the inviolability of property, privacy and family life. All human beings have the right to a safe environment and its protection is an obligation of all and the state.

 

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 also 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 have been incorporated in found in several constitutions.

 

18.  State and Sovereignty (Art. 25 -28 Constitution)

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 doctrine of the trias politica. In this model the state is divided into three branches of power, which are separate and 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 provide checks and balances to better protect and promote democracy and which at the same time help to reduce the risk of dictatorships. Mali has adopted this system in its Constitution.

 

19.  The Executive Power: President and Cabinet

 

The President of the Republic (Art. 29 – 52 Constitution)

The President of the Republic is the Head of State and the guardian of the Constitution and embodies the unity of the nation. The President must guarantee national independence, territorial integrity, and the respect for treaties and other international agreements relative to the Malian state. The President ensures and watches the regular functioning of public authorities and the continuity of the state.

 

Election of the President

The President of the Republic is elected for a period of five years by popular vote. Every candidate for the office of President of the Republic must be of Malian national origin, hold Malian citizenship and must have fulfilled all civic and political duties. The President can only be re-elected once, and a candidate can thus serve a maximum of two terms as President.

 

The President of the Republic is elected if he receives the absolute majority of votes in the first round. If no absolute majority can be obtained in the first round, then 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.

 

On 28 July 2013 the latest Presidential elections were held, which resulted in a victory for Ibrahim Boubacar Keïta or IBK, as he is often referred to.

 

Powers and Functions of the President

The President of the Republic has a numbers of powers and functions, which include that the President:

 

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 elected mandate, with any public use, or with any other lucrative or professional activity.

 

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 adopted final text. Before the expiration of this time period, he can demand a new deliberation on either the law or certain of its articles by the National Assembly. This demand cannot be refused and suspends the promulgation of the law.

 

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, the Prime Minister provisionally exercises his powers.  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 the election of a new president is then initiated.  The election of the new President is to take place between twenty-one and forty days after the official recognition of the vacancy or preventing obstacle.

 

The Government (Cabinet in Arts. 53–58 of the Constitution)

The Ministers and Prime Minister together form the Cabinet. The President directly appoints the Prime Minister, 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 articles 78 and 79 of the Constitution.

 

Prime Minister and Ministers

The President appoints the Prime Minister and puts an end to his term when the Prime Minister offers 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, 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 must be updated each year.  A number of positions and activities are incompatible with the functions of 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 and when members of Parliament, who get appointed in the Cabinet, are to be replaced.

 

The Cabinet has the right of initiative, that is, to propose new laws and/or amendments to laws, which are deliberated in the council of ministers after the advice of the Supreme Court has been received and shared with Parliament.

 

20. The Legislative Power: Parliament

Parliament is comprised of one house called the National Assembly. It currently consists of 147 members of Parliament, elected for five years by direct universal suffrage. Organic laws prescribe how members of parliament get elected and what conditions they need to comply with. Parliament, as the legislative power, is one of three key actors in the trias politica; it also disposes of a number of powers to control government.

 

Members of Parliament enjoy parliamentary immunity, which means that:

 

An organic law prescribes the number of members of the National Assembly, their allowances, the conditions of eligibility and the terms of disqualification and of incompatibility with membership of Parliament. Another organic law prescribes how members of parliament are replaced, in the case of a vacant seat, for the remaining period in office until new Parliamentary elections are held.

 

Any imperative mandate shall be deemed 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 an organic law can authorize such delegation and will then describe how and under which conditions this may be possible.

 

The National Assembly establishes its own rules of procedure. The President of the National Assembly is elected for the duration of the parliamentary term.

 

New laws are passed with a voting procedure requiring a simple majority in the National Assembly. However, for organic laws the Constitution prescribes the following additional requirements:

 

Special provisions and requirements also apply for organic laws that relate to:

 

By law, also the fundamental principles are determined of:

 

Some important functions and powers of the Parliament include:

 

 

 

Right to submit a motion of no confidence, which can only be submitted and considered if 10% of the Members of Parliament sign its submission and can only be voted upon after 8 hours have passed, but within 48 hours of its submission. 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. A minimum of a two/third majority of the Members of Parliament is required to adopt a motion of no confidence and then the Prime Minister must submit the resignation of the Cabinet to the President of the Republic.

 

21.  The Judicial Power: The Judiciary (Art. 81 –Art 96 Constitution, and the laws 88-39/AN-RM of 5 April 1988, law No 94-006 and An-RM of 18 March 1994 and the latest revision through the law on the judicial organization 2011-037/AN-RM of 16 July 2011)

The Constitution explicitly states that the judicial power is independent of the legislative and executive powers. The Constitution states that magistrates are only subjected to the law in the exercise of their functions. The President of the Republic guarantees this independence with the assistance of the Judicial Council (Conseil Supérieur de la Magistrature).

 

The judicial power is executed by the Supreme Court and the other courts and tribunals. They guard the fundamental rights and liberties mentioned in the Constitution and must apply the law of the Republic in practice, in the judicial domain.  The judiciary is composed of the public prosecution (standing magistrature), judges (sitting magistrature) and their supporting staff. Both the prosecution and judges and their supporting staff reside in the courts that adjudicate criminal cases. In this section concentration will be on the sitting magistrature and will be referred to as magistrates.

 

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 justice system follows a number of principles.

 

 

 

 

Judicial Organization

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. The law on the Judicial Organization was last revised by the law 2011-037/AN-RM of 16 July 2011. This law reformed and prescribed the institutions adjudicating the law in Mali:

 

Reforms in the 2011 law on the Judicial Organization

An important reform of the law on the Judicial Organization of 2011 is the abolition of the Peace Justices with extended powers. The jurisdiction of the Peace Justice with extended powers have been absorbed by the District Courts, but several Peace Justices with extended powers are said to still continue to operate in practice. One of the reasons for their continued practice is their capacity to reach communities that are located far away from the existing district and grand courts. It is however somewhat problematic as their jurisdiction no longer formally exists under the law.  Another reform is that the threshold for the admissibility of cases based on their monetary value has been raised from 150.000 FCEFA to 500.ooo FCEFA. The 2011 law on the Judicial Organization expands the number of courts and that includes the addition of three appeals courts in Sikasso, Segou and Gao, which were not yet operational at the time of the development of this guide.

 

The Supreme Court (art 83 – 84 Constitution)

The Supreme Court is presided over by a judicial magistrate named by the President of the Republic and in conformity with the proposition of the Superior Council of the Magistracy. The Vice President of the Supreme Court assists the President of the Supreme Court and gets appointed in the same manner. The Supreme Court is the highest instance for civil, criminal and administrative law cases, where the Constitutional Court is the highest instance for Constitutional cases and the High Court of Justice for the specific cases that fall under its jurisdiction.

 

The Supreme Court is comprised of:

 

 

 

Courts of Appeal

A total of 6 Appeals courts receive and adjudicate appeals from final judgments and rulings in the first degree in the areas of civil law, commercial law, labor law, criminal law and juvenile law. They therefore handle appeals from rulings and judgments of the Grand Courts, District Courts, Commercial Courts, Labor Courts and Juvenile Courts. Each of the courts of appeal consists of at least a chamber for civil law cases that considers both state law and customary law cases, a chamber for commercial law cases, chamber for labor law cases, a chamber for criminal law cases that can be punished with a maximum sentence of less than 5 years of imprisonment, and a chamber of prosecution for the cases that can be punished with maximum sentences of 5 years and finally special chamber for juvenile cases. Currently 3 Courts of Appeal are operational and it is expected that the three new courts will open their doors in the next few years.

 

Grand Jury Courts (Cours des Assises)

The Cours des Assises reside and operate in the courts of appeal. This jurisdiction rules on criminal cases that require a grand jury; it is not a regular court in the sense as it is set up when relevant cases occur and generally holds sessions once or twice a year. If the accused is a minor, then the case will be held in special Juvenile Grand Jury Courts.

 

District Courts and Grand Courts (Tribunaux d’Instance et Tribunaux de Grande Instance)

The District and Grand Courts handle criminal and civil cases, which notably include the application of customary law actions for civil law matters. The District Courts and Grand Courts are competent to receive and adjudicate all cases in both first and final instance civil law and customary law actions of which the principal value does not exceed 500.000 FCEFA (769 Euros) or the monthly revenue does not exceed 50.000 FCEFA (76,9 Euros), for example rent or interest. Cases and actions with a higher value as first instance and family law related matters such as civil status of persons, and also inheritances, donations and wills of which the value is higher than 500.000 FCEFA or 50.000 FCEFA monthly revenues.

 

Claims in reconvention or as compensation which do not exceed the above mentioned financial thresholds, will be handled by the same court as part of the same case, which is not be regarded as an appeal of the original claim. If the value of a reconvention or compensation claim exceeds these financial thresholds, then the court will only judge in first instance and then the claim will be considered an appeal.

 

On criminal matters Malian criminal law knows three types of criminal offences: crimes, délits et contraventions. This is different from most common law jurisdictions that apply a division of criminal acts in felonies and misdemeanors. A similar division exists in Dutch law. Crimes are the most serious offenses, a délit is punishable by a short prison sentence and/or a fine and contraventions are minor offenses. The District Courts are competent to judge criminal cases, for minor and more serious offenses (délits and contraventions), but not for the most serious offenses, which are crimes. Peace justices with extended powers previously executed some of these competencies, but have been abolished with the law of 15 July 2011 on the Judicial Organization. Their competence has been absorbed by the district courts.

 

Generally, the President of the court and two judges render decisions in Grand Courts, whereas in District Courts a single President or judge decides on a case.

 

Special Jurisdictions

 

Administrative Courts (First Instance and Appeal)

Administrative courts were created by law N° 88/40 of February 1988. There are 3 administrative courts at:

 

Plans exist to create additional administrative courts, which may reside in the same cities as the appeal courts.

 

Administrative courts have jurisdiction to rule on:

 

Decisions of administrative courts can be appealed in one of the three administrative appeals courts.

 

Commercial Courts

Commercial Courts rule in the following cases in the way prescribed by the Commercial Code and the OHADA agreement that seeks to harmonize business law in Africa in and between member states:

 

The Commercial Court rules in final instance in claims where:

 

Labor Courts

Labor courts rule on legal conflicts related to the labor relation between the employee(s) and employer(s). This includes all legal conflicts arising as a result of individual labor agreements; their existence, execution of obligations and termination, including the application of the social welfare code which was established by the Act No. 99-041 of 12 August 1999. The court can also rule on legal conflicts with regard to collective agreements. 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 competent Labor Court is the one in the area where the labor agreement is executed. If however the legal conflict is about the termination of the labor agreement, then the employee with residence in Mali, but outside the area where the contract is executed, may also choose the labor court in his residence to handle the matter.

 

If the value of the claim does not exceed 500.000 FCEFA, then the labor court rules as first and final instance. If the value is higher, then rulings are subject to appeal.

 

Juvenile Courts

The courts for children rule on the offences committed by minors. They have jurisdiction in two categories of offences: délits and contraventions. A délit is punishable by a short prison sentence and/or a fine and contraventions are other minor offenses. Crimes are adjudicated by special juvenile Cours des Assises, which are located in the Appeal Courts. Juvenile courts consist of the prosecution services (parquet), judges and supporting court staff.

 

Decisions of the juvenile courts are subject to appeal.

 

Military Courts

The military courts adjudicate the military and include cases such as unauthorized carrying of firearms and offences committed by soldiers. They have extended powers during times of war.

 

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 a conspiracy against   ds            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 appointed by members of Parliament at each general renewing of the National Assembly. The Court elects their president from among its members. The law prescribes the number of members, its governing rules and procedures.

 

The Constitutional Court (Art. 85 -94 Constitution)

The Constitutional Court judges and guards the compliance of laws with the constitution; it guarantees the fundamental rights safeguarding individual and civil liberties. It is the regulating body that 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 of the President to execute his functions, then the oldest counselor of the Constitutional Court shall fill the position temporarily. In the event of a member’s death or dismissal, the respective nomination authority will name a new member who shall continue and complete the term already commenced by the deceased or dismissed.

 

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 rule on the compliance (or non-compliance) with the Constitution of:

 

Other important powers of the Constitutional Court include:

 

The rules of organization, function and procedures of the Constitutional Court shall be determined in an organic law.

 

Other Authorities

 

The High Council of Communities (art 99 -105 Constitution)

The mission of the High Council of Communities is to study and deliver opinions on all regional and local development policies. It can submit proposals to the Central Government on any matter that concerns environmental protection or which may improve the living standards of citizens at the regional and local level. Central Government is held to actively consult the High Council of Communities on these matters. The Economic, Social and Cultural Council must receive a description of the relevant laws, ordinances and decrees as soon as they are promulgated. The Economic, Social and Cultural Council monitors on an ongoing basis the execution of the decisions of the Cabinet related to economic, social, and cultural organization.

 

The High Council of Communities resides in Bamako, but may be transferred to any other location if necessary. The High Council of Communities cannot be dissolved.

 

The members of the High Council of Collectives carry the title of ‘National Advisor’ and they enjoy a number of protections. No member of the High Council of Collectives may be prosecuted, investigated, or tried for opinions expressed during sessions of the High Council.

An organic law prescribes the number of National Advisors, their allowances, criteria of eligibility, the system of ineligibilities and incompatibilities with the function of National Advisor and when and how the replacement is carried out.  National Advisors are indirectly elected for a term of five years and ensure that the local authorities Territorial Collectives of the Republic are represented in policy development and other decisions that can impact on their living conditions. 

 

The High Council of Communities meets in a ordinary session twice a year upon convocation of its President. Special sessions can also be held; the law prescribes the conditions, purposes and procedures.

 

The Economic, Social and Cultural Council (art 106- 113 Constitution)

The Economic, Social and Cultural Council is competent in all aspects regarding economic, social and cultural development. It collects and drafts the annual report with an overview of the expectations, the needs and the challenges of civil society with orientations and proposals to manage these. The Economic, Social and Cultural Council must be consulted with regard to any law on finance, any economic, social and cultural plan or program as well as statutory provisions with a fiscal, economic, social and cultural nature.

 

Members of the Economic, Social and Cultural Council are:

 

The Economic, Social and Cultural Council meets twice a year upon convocation of its President in an ordinary public session of fifteen days.  The President and Vice-President of the Economic, Social and Cultural Council are elected for five years by their peers at the opening of the first session. Members enjoy a number of immunities as no member of the Economic, Social and Cultural Council can be prosecuted, investigated or tried for opinions expressed during sessions of the Council.

 

22.  Treaties and International Agreements (Art 114-116 Constitution)

The President negotiates and ratifies treaties. Peace treaties, and other treaties on commerce, international organizations that lead to financial commitments from the state, or that may affect personal status of citizens, transfer of sovereignty of land must be ratified by a special law. Treaties only take effect after ratification, and any change over sovereignty of land must be consented by the people.

 

Ratified treaties have a superior authority to national laws as soon as these are published or otherwise agreed to take effect and subject to implementation by the other parties to the treaty.

 

African Unity (Art 117 Constitution)

The Malian Republic can conclude with each African state association agreements or communities that include abandoning partially or completely the sovereignty to seek to create African unity.

 

Revision (Art 118 Constitution)

Members of Parliament and the President have the right to take the initiative to revise the Constitution. Any revisions must be adopted by a 2/3 majority in Parliament and is not final, until it has been approved and confirmed in a referendum. However, no revision can be made if it negatively affects the integrity of the national territories. The Republic as state form and secularism and the multiparty political system are excluded from revision.

 

23.  Final Provisions (Art 119 -121 Constitution)

Existing laws remain valid to the extent that these are not contrary to the present Constitution and that these are not in the process of being repealed. This has also been the basis for the recognition of the validity of customary law, however with the conditions attached.

 

Article 120 prescribes that the present Constitution will be submitted to a referendum and that, in the event that it receives the absolute majority of votes, the President of the transitory commission for the Salvation of the people will proceed with its promulgation in compliance with all fixed conditions in it. This is what happened.

 

All power of the Republic is based on the Constitution and the Republican state form cannot be changed. The people have the right to civil obedience to preserve the Republican state form. Any coup d’Etat or putsch is a crime against the Malian people, which is not subject to any statute of limitations.

 

Transitory Provisions

The transitory commission for the Salvation of the people will take the necessary measures to ensure that public authorities will function until the state institutions have been put in place, for the life of the nation, for the protection of citizens and to safeguard liberties.

 

24.  Online Resources on State and Government Institutions, Legislation, Policy Documents, International & Development Cooperation and News Sources

 

State and Government Institutions

 

Legislation

 

Judicial Ethics

·       Canadian ethical principles for judges: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf

 

Policy Documents

 

International & Development Cooperation

 

Online News Sources

 

25.  Literature, Research and Analysis of the Malian Legal & Justice Sector

 



[1] Abraham Bengaly, Le Reforme du Secteur de la Justice au Mali: Enjeux, Defis et Perspectives, FES Mali Policy Paper, Novembre 2015

[2] Servaas Feiertag, Jan de Vries and Louise Otis, Synthese des etudes sur le renforcement de la justice penale au Mali, May 2014.

[3] Ministre de la Justice, Cellule de Plannification et de Statistique, http://www.reforme-justice.gouv.ml/.

[4] La Reforme de la Justice Au Mali, Programme Decennal de Developpement de la Justice (PRODEJ), http://www.justicemali.org/.

[5] Legal pluralism in Mali is discussed in more detail in Servaas Feiertag, Strengthening effective citizen participation in Mali through the development of paralegal services: a case study, Servaas Feiertag, Leiden University, May 2012.

[6] N°02-054/ 16 Décembre 2002 portant statut de la magistrature.

[7] Conseil Superieur de la Magistrature.

[8] Known as Code de Deontologie in French.

[10] Canadian Judicial Council, Canadian Ethical Principles for Judges, http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf.

[11] Transparency International, What is Corruption?, http://www.transparency.org/what-is-corruption/.

[12] United Nations Office on Drugs and Crime, UN Convention Against Corruption, http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf.

[13] Transparency International, Corruption Perceptions Index: Overview, http://www.transparency.org/research/cpi.

[14] Global Integrity, Africa Integrity Indicators: Scorecard 2016-Mali, http://aii.globalintegrity.org/scorecard?country=mali&year=2016.

[15] Harmonisation de l’Aide au Mali, Faciliter l’access a l’information et renforcer les mecanismes de coordination, http://www.maliapd.org/.

[16] Republique du Mali Constitution: http://www.sgg.gouv.ml/documentation/Constitu.pdf (adopted by referendum on Jan. 12, 199; promulgated by law N°92-073 P-CTSP on Feb. 25, 1992). See also Mali 1992 Constitution at https://www.constituteproject.org/constitution/Mali_1992?lang=en.