Jump to the next navigation bar : Jump to the page contents
About Globalex

Researching the Legal System and Laws of the Islamic Republic of Mauritania

By Zelezeck Nguimatsa Serge

Zelezeck Nguimatsa Serge is a bi-jural (Civil and Common Law) lawyer holding an LL.B (Hons) from the University of Buea (2004), a Maîtrise in Civil Law from the University of Douala (2005) and an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights of the University of Pretoria (2008). Prior to attending the Masters programme, he worked for three years in one of the leading law firms in Cameroon. He has a strong interest in comparative law, human rights, pan-Africanism and African economic development. He is currently completing a six month research fellowship on Lusophone legal systems in Maputo, Mozambique.

Published August 2009

Table of Contents

A. Introduction

B. Post-Independence Political developments

C. Legal System

1. Sources of Laws

1.1 Sharia

1.2 The Constitution

1.3 Legislations

1.4 Treaties and International Conventions

2. Court structure

2.1 Courts established by the Constitution

2.1.1 The Constitutional Council

2.1.2 Cour des Comptes

2.1.3 High Court of Justice

2.2 Ordinary Courts of Law

2.2.1 The Supreme Court

2.2.2 The Courts of Appeal

2.2.3 Courts of First Instance

Wilaya Courts

Commercial Courts

Labour Courts

Criminal Courts

Moughataa Courts

Informal/Customary Courts

2.3 Quasi-judicial bodies

2.3.1 The Mediator of the Republic

2.3.2 The National Human Rights Commission

3. Judicial training and officials

3.1 Training

3.2 Judges

3.3 The Legal Department (Ministère public)

3.4 Barristers

3.5 Sheriff Bailiffs

3.6 Public Notaries

D. Salient Human Rights Issues

1. Slavery and stigma of past Slavery: the Haratin Marginalisation

2. Negro-Mauritanian Exclusion

3. Gender

E. Legislations

F. Online Sources

G. Bibliography

 

A. Introduction

The Islamic Republic of Mauritania is located in Northwestern Africa and is bordered by the Atlantic Ocean and the Western Sahara in the west, Mali in the east, Algeria in the North and Senegal in the South. The country has a land area of 1,030,700 square Kilometres, three quarters (¾) of which are desertic or semi-desertic thus making disputes over land, one of the main sources of conflicts among the largely agriculturalist, nomadic and pastoralist 3.2 million population of the country. Although all ethnic components of the country are Muslim, the cohabitation among them has nevertheless been highly conflictive as a continued result of the power relationship that evolved in the region in 1076 and thereafter when the Almoravid, Arab warriors from further North Africa, conquered the Empire of Ghana and Berber tribes. These conquests led to the reshaping of ethnic and religious identities in the region and to the enslavement of large portions of conquered tribes. Today, the composition of the main ethnic group, the Moors, reflects that reality. The Moors are made up of light skin Moors (30% of the total population of the country) who are the descendants of the Almoravid and the Berbers; and dark-skin Moors called Haratin (40 % of the total population) who are descendants of the peoples who were enslaved. The other ethnic groups are often referred to as Negro-Mauritanians and comprise the Haalpulaar, Soninke and Wolofs. As the colonial masters, the French banned slavery and introduced civil law jurisdictions and administration as well as recognised local jurisdictions. [1] This French heritage was perpetuated at independence in 1960 though a bit challenged as from the 1980s.

B. Post-Independence Political developments

The political life of Mauritania has been marked by the recurrence of military coups, the last of which occurred on 6 August 2008. The first coup intervened in 1978 and ousted Moktar Ould Daddah who had been president since independence and had introduced the single party system in 1964 and led the country in a disastrous war for the annexation of part of Western Sahara.[2] Col. Mustafa Ould Salek who led the coup would himself soon give way to Col. Mohamed Khouna Ould Haidallah who would rule the country until a 1984 coup led by Col. Maaouya Ould Sid'Ahmed Taya. As head of the ruling Military junta (Comité militaire de Salut national),Taya would rule the country until 1992 overseeing in the process the 1989-91 government sponsored massacres and expulsion of Negro-Mauritanians which discredited his government internationally.

In 1991, both in response to internal demand for democracy and as an attempt to regain international legitimacy, Taya surprised the political establishment of the country by suddenly allowing multi-partism and enacting liberal laws including having a new constitution adopted by referendum.[3] By so doing, he managed to control the agenda and thus introduced elements of democracy without endangering his authoritarian regime. In 1992, Taya clothed the mantel of a democratically elected civilian president and would be re-elected in 1997, and in 2003 in elections that were generally criticised as being unfree. [4]

On August 3 2005, a group of senior military officers led by Col. Ely Ould Mohamed Vall seized power in a bloodless coup while President Taya was attending the funeral of King Fad of Saudi Arabia. The new military junta called themselves the Military Council for Justice and Democracy (CMDJ). As a reaction to the coup, the country was suspended from the African Union and developmental assistance from donor institutions such as the European Union was halted. However, the CMDJ committed both nationally and internationally to lead a transitional government, reinforce democratic institutions and human rights guarantees and transfer power to civilian authorities through free and fair elections. And they actually did keep their promises by undertaking extensive legislative reforms including organising a 2006 referendum on amendments to the 1991 Constitution and the enactment of numerous pro-democracy and human rights inspired laws in the form of ordinances between 2006 and 2007. Lastly the CMDJ successfully organised free and fair parliamentary and presidential elections which was won by Sidi Ould Cheikh Abdallahi, an independent candidate from the civil society. Abdallahi was sworn in on 19 April 2007 and is generally viewed as the first truly elected president of the country in 49 years of independence.

Despite his democratic legitimacy, Abdallahi’s presidency only lasted a year and few months as on 6 August 2008, a group of Military officers led by General Mohamed Ould Abdel Aziz seized power thus again halting the new democratic impulse. On 15 April 2009, General Aziz resigned from the Presidency in order to stand for presidential elections which he had fixed for 6 June 2009 and which were boycotted by all major political actors. [5] However mediation efforts led by President Wade of Senegal permitted on June 2 2009 the signing of an accord between all opposing parties that opened the way for an all inclusive presidential elections now to take place on 18 July 2009.[6]

C. Legal System

The legal system of Mauritania is a mix of the colonially inherited French Civil Law legal system and of Sharia Law. The judicial organisation established after Independence created a system of courts comprising Cadis courts functioning alongside a conventional 3 degree courts system (courts of 1st instance, labour courts, Superior Court of Appeal and Supreme Court). Whereas Cadis Courts applied solely Sharia law, all the other courts where internally structured in two chambers, one for Islamic law and the other for modern law.[7] With the policy of arabisation and islamisation of the country in the 1980s, a 1983 law on judicial re-organisation abolished the separation of Islamic/modern chambers in courts and established a unified system that was to apply predominantly Sharia law.[8] Similarly there were major efforts to reform all substantive laws to make them reflect Sharia law.[9] However, this theoretical predominance of Sharia law has not fundamentally altered the Civil Law foundation upon which the legal system has been developed.[10]

1. Sources of Laws

Sharia, the Constitution, legislations (organic laws, ordinary laws, ordinances and decrees) and treaties are the sources of Mauritanian law.

1.1. Sharia

Given that Islam is constitutionally recognised as ‘the religion of the people and of the State’,[11] it is therefore no surprise that the preamble of the Constitution names Sharia [12] as ‘the sole source of law.’ References in other pieces of legislation further buttress this primacy of Sharia. For example, the swearing-in oath of the President of the Supreme Court, that is the top official of the Judicial Power, enjoins him, in the exercise of his functions, to respect ‘Sharia, the Constitution and laws’. [13]

In light of this theoretical primacy of Sharia, there have been debates as to whether Sharia is a true source of law in the sense of direct application of all Sharia norms in the courts or whether those norms must first be included in legislations before being applicable. The 1980s reforms that postulated the supremacy of Sharia also effected a merger of the two bodies of judges (Sharia judges and modern judges) into a single magistracy whose members were appointed to head courts irrespective of earlier specialisation. [14] Some of the former Sharia judges sought to implement exclusively Sharia norms on the ground that the new dispensation had abolished modern laws. [15] This move was stopped by a 1986 Ordinance which stated that any judge who refused to apply a law in force would be revoked by a simple decree upon a report of the Minister of Justice.[16] Also one would note that Article 1 of the 1984 Civil, Commercial and Administrative Procedure Code whose wording supported the view of the direct applicability of all Sharia norms, and which gave rise to Court of Appeal’ s rulings upholding that view, [17] has not been replicated in subsequent amendments of the Code. [18] Hence it would appear the right position is that stated by Mohamed Ould Salah to the effect that Sharia is a compelling source only for the legislator and must be translated into legislations before being applicable in courts. [19] However it seems Sharia norms can lawfully be invoked in courts as a sort of ‘common law’ in the absence of, or in complement to, legislations. One finds an example of a Sharia rule being invoked in complement to laws in a recent judgement of the Constitutional Council in which is invoked the Sharia principle of ‘having advantages prevailed and avoid mischief’.[20]

Sharia norms have been included in laws. This is the case for example of the Penal Code which contains Sharia crimes such heresy, apostasy, atheism, refusal to pray, adultery [21] and alcoholism [22] as well as punishments such as lapidation, amputation and flagellation. [23] Equally, the 2001 Personal Status Code reflects Sharia norms and its Article 311 states that for difficulties of interpretation as well as in cases where the Code is silent, reference should be made to Sharia. The Criminal Procedure Code (article 363) and the Penal Code provide for the application of the Sharia rules of evidence. The Code of contract and Obligations exclude business transactions prohibited by Sharia such as usury.

1.2. The Constitution

The first constitution of Mauritania, adopted in March 1959, was modelled on the constitution of the French Fifth Republic which recognised principles of separation of the three powers while leaning towards a strong Executive. Subsequent constitutional amendments have maintained that initial framework. The current Constitution is the 1991 Constitution drafted by a Committee of experts established by the then ruling military junta of Colonel Taya and adopted by referendum on 12 July 1991. This Constitution establishes an Executive (a President and a Prime Minister with all power remaining however in the hands of the former); a bicameral parliament (The National Assembly and the Senate); and consultative institutions such as the High Islamic Council and the Economic and Social Council.

Drafted in the context of the wave of democratisation of the 1990s, this Constitution primarily sought to re-institute multi-partism, [24] recognise greater freedom and civic liberties and established institutions such as the Constitutional Council to serve as watchdog for respect of constitutional norms and democratic processes. What may be considered the Bill of Rights of the Constitution is listed from article 10 to article 22. Although the Preamble of the constitution does make reference to socio-economic rights, these as well as the right to life and freedom of religion are conspicuously absent from the Bill of Rights. The rights listed include right to equality, non discrimination, privacy, physical integrity, equal access to the public service, presumption of innocence and freedoms of movement, of opinion, of expression, of assembly, of association, of trade unionism, of adhesion and creation of political parties, of commerce and business, and of intellectual, artistic and scientific creation. Equally worthy of notice is the fact that the right to strike is constitutionally recognised. [25]

On 25June 2006, Mauritanians approved through a referendum, amendments to the 1991 Constitution proposed by the CMJD transitional government. These amendments relate to the reduction of the Presidential mandate from 6 to 5 years and its limitation to a maximum of two terms. [26] Perhaps taking stock of the experience elsewhere on the continent, [27] two mechanisms have been inbuilt in these amendments to ensure that they are not tampered with in the future. The first mechanism is the inclusion in the swearing-in oath of the President of the Republic of an undertaking not to do anything directly or indirectly to amend the duration of the presidential mandate and the two-term limit. [28] The second mechanism is the outright prohibition of any future amendment relating to the presidential mandate and the two-term limit. [29] How far these mechanisms may in practice be effective is difficult to say. However, their inclusion do provide a stronger case for civil society and opposition parties to resist any future amendment move and may even help secure favourable rulings in the Constitutional Council like in the ongoing saga in Niger. [30]

Another interesting issue introduced by the 2006 amendments is the requirement to systematically reform all laws contrary to the Constitution within a maximum period of three years, at the end of which any citizen may seize the Constitutional Council to pronounce on the constitutionality of any such laws. [31]

1.3. Legislations

As per article 45 of the Constitution, legislative power belongs to the Parliament. However, like in other Civil Law countries, a residual legislative power is left in the hands of the Executive. Articles 57 & 58 of the Constitution exhaustively list the subject areas that constitute the exclusively legislative domain of Parliament. As per article 59 of the Constitution, all matters not listed in articles 57 and 58 fall under the regulatory power ( pouvoir réglementaire) of the Executive which exercises it through decrees. This regulatory power belongs to the President of the Republic who may delegate part or the totality of it to the Prime Minister. [32]

As another common feature of civil law systems, the Government may in certain circumstances ‘legislate’ on subject areas within the exclusive legislative competence of Parliament by way of ordinances. This is regulated by article 60 of the Constitution which states that ‘with the agreement of the President of the Republic, the government, in order to execute its program, may ask the Parliament for the authorization for a limited period of time to pass ordinances for measures which are normally in the domain of the law.’ These ordinances must be adopted at a Council of Ministers and signed by the President of the Republic. They enter into force immediately after their publication and must subsequently be tabled before the Parliament, within the timeframe stated in the enabling law, for purposes of ratification. However it would appear the requirement of ratification is dispensed with in case of dissolution of the Parliament. Given the repeated military coups and the consequential suspension of Parliament, one would unsurprisingly find that most of the laws of Mauritania have been enacted by ordinances.

Equally worthy of notice is the fact that there exists a special category of laws known as organic laws. These typically serve to define the legal framework of key institutions and processes mentioned in the Constitution. In total, the Constitution prescribes for the enactment of 9 organic laws. [33] The adoption or amendment of organic laws is subject to relatively stricter conditions stated in article 67 of the Constitution; one of which is that their constitutionality must first be checked and certified by the Constitutional Council before they can be promulgated.

1.4. Treaties and International Conventions

As a monist state, treaties duly ratified form part and parcel of the Mauritanian domestic legal system. The Constitution states that duly ratified treaties are hierarchically superior to domestic legislations provided the other party to the treaty implement their own obligation. [34] The power to negotiate and sign treaties belongs to the President of the Republic. Once the President of the Republic has signed a treaty, four possibilities may arise. Firstly, if the subject matter of the treaty falls within the areas listed in article 78(1) of the Constitution, [35] then it can only be ratified through a law passed by Parliament. Secondly, if the treaty is about the cession, exchange or annexation of the national territory, a referendum with 4/5 approval of the electorate is needed. Thirdly, in case the treaty is found in contradiction with a provision of the Constitution by the Constitutional Council, then it can only be ratified after the appropriate amendment of the Constitution has been effected. Lastly, although not expressly stated, the wording of Article 78 suggests that treaties which do not fall under the listed subject areas can be ratified by the President through simple decree.

One may note the similarity of the Mauritanian constitutional provisions on treaties with that of other French speaking African countries. [36] Although these provisions clearly establish monist states, in practice, a conjunction of factors, including judges’ reluctance, have pre-empted the real implementation of international treaties, particularly multilateral treaties such as human rights treaties in domestic courts of those countries. [37]

2. Court structure

A distinction may be drawn between courts directly established by the Constitution which are more of a ‘political’ nature and ordinary courts of law which make up the Judicial Power described under Title VII of the Constitution. Quasi-judicial bodies also deserve consideration.

2.1. Courts established by the Constitution

2.1.1 The Constitutional Council

Regulated by articles 81-88 of the Constitution and its organic law (Ordinance nº 92.04 of 18 February 1992), the Constitutional Council is the highest court of the land on issues of constitutionality of laws and electoral litigations. [38] The Council is composed of 6 members; its President and two of whom are appointed by the President of the Republic, 2 by the President of the National Assembly and 1 by the President of Senate. The mandate of members of the Constitutional Council is 9 years non renewable and membership is renewed by 1/3 every three years. The quorum is 4 members except in case of force majeure duly stated in the records of proceeding of the Council. [39] Once seized, the Constitutional Council must rule within a maximum period of 30 days which is reduced to 8 days in case of urgency. Decisions are taken by simple majority and there are no dissenting judgements. However, when the Constitutional Council sits for the declaration of vacancy at the Presidency of the Republic, it must decide by an absolute majority of its members. [40] Decisions of the Constitutional Council are final and binding on all public, administrative and judicial authorities. [41] All decisions of the Constitutional Council are published in the Official Gazette.

In general, the Constitutional Council may be seized by the President of the Republic, The Prime Minister, the President of the National Assembly, the President of the Senate and 1/3 of members of the National Assembly or Senate. Article 102 of the Constitution also gives the opportunity for any individual to seize the Constitutional Council in relation to any pre-25 June 2006 law inconsistent with the Constitution which has not been amended after 25 June 2009, that is, after the three-year maximum period for their revision. The Council cannot seize itself at its own motion.

The main jurisdiction of the Constitutional Council is about the control of constitutionality of laws which is exercised prior to their promulgation. This control is mandatory for all organic laws and standing rules of the two chambers of parliament. The Prime Minister has the responsibility to submit all organic laws or amendments thereof to the Constitutional Council and the submission of standing rules of the two chambers of Parliament are done their respective president. [42] Likewise ordinary laws and treaties may be submitted to the Constitutional Council for the control of their conformity with the Constitution.

Apart from the control of constitutionality, the other main area of jurisdiction of the Constitutional Council is elections. The Council has power to control and pronounce the results of referendums; [43] receive candidatures to the presidential elections, control the process, pronounce results and entertain disputes related thereto; [44] and entertain litigations relating to the elections of members of the two houses of Parliament.[45] Any registered voter or candidate may seize the Constitutional Council in relation to its electoral jurisdiction.[46]

Other areas of the jurisdiction of the Council include: the determination whether a disposition falls under the legislative or statutory domain;[47] the declaration of vacancy at the President of the Republic.[48] The Council exercised the latter jurisdiction for the first time on 15 April 2009 after the resignation of General Aziz from the Presidency in order to run for the July 2009 presidential elections.[49] Lastly the Council may be seized by the President of the Republic for advisory opinion.[50]

2.1.2 Cour des Comptes     

The Cour des Comptes is provided for by article 68 of the Constitution and regulated by Law n°93-19 of 26 January 1993 as amended by Ordinance n° 2007- 006 of 12 January 2007. [51] The Cour is the superior institution of the land in charge of the control of public finance. [52] As per article 3 of Law n°93-19, the Cour through its permanent and systematic actions of verification, information and advice, seeks to achieve the followings objectives:

·       The safeguard of public finances;

·       The improvement of financial management techniques and methods;

·       The rationalisation of administrative action.

 

The Cour is composed of Members appointed by decree and of a technical staff (auditors and counsellors) selected through a competitive exam. [53] Since the 2007 amendment, the President of the Cour is appointed for a 5 year mandate renewable only once. [54] This greater security of tenure of the Cour’s President locates itself in the general perspective of the 2007 Ordinance which seeks to boost the independence of the Cour is mindful of the fact that a mere formal statement of independence in the 1993 Law did not succeed in insulating the Cour from the influence of the Executive with the direct result that widespread corruption in the public services went unchecked. [55] The second personality of the Cour is the Commissioner of Government who is equally appointed by decree and constitutes with his two deputies the Cour’s Legal department (prosecuting authority). [56]

The Cour disposes of jurisdictional and extra-jurisdictional competences. The jurisdictional competence of the Cour comprises the control of the account of public accountants and sanctions of financial management faults (fautes de gestion).[57] The Cour must sit in odd number and the panel must be constituted of a minimum of 3 members. Decisions are taken by simple majority vote and subject to appeal and revision before the Cour is differently constituted. For the control of financial management faults, the action is triggered by the Commissioner of Government either on his own motion, for matters being controlled by the Cour, or at the request of the : the Prime Minister; the Minister of Finance; or the minister under whose department the fault has been committed.

It is worth noting that the Cour does not apply penal sanctions as its sanctions are limited to penalties and recommendations of suspension from exercising functions linked with management of public funds. However proceedings before the Cour do not pre-empt criminal prosecution if the facts also amount to a criminal offence. The Commissioner of the Government is empowered in those cases to transmit the matters to the minister of justice. [58]

As for the extra-jurisdictional competence, this includes the assistance the Cour gives to the Parliament in terms of control of the national budget and its execution, and the control of finances of the state institutions including parastatals. [59] These controls are done either as a result of seizure of the Cour by government or as part of its routine control. The Cour is required to prepare a general annual report addressed to the President of the Republic in which it presents its observations and makes recommendations. Since 2007, this report is equally to be submitted to the Presidents of the two chambers of Parliament and must be made public. [60]

2.1.3 High Court of Justice

Articles 92 and 93 of the Constitution provide for the establishment of a High Court of Justice constituted by MPs in equal number from both chambers of Parliament. This Court has competence to try the President of the Republic in case of high treason and the Prime Ministers and members of government for criminal acts committed in the exercise of their functions. [61] The Court applies sentences stated in the Penal Code.

 

Despite having been provided for in 1991, it is only in May 2008 that the organic law regulating the Court as required by article 92 of the Constitution was finally adopted by Parliament. It was then approved by the Constitutional Council after an initial rejection of certain provisions for being contrary to human rights guarantees contained in the preamble of the Constitution. [62] In September 2008, the National assembly and the Senate respectively elected 4 members each, given that the Organic law makes for an 8-member Court. The Court is thus already in existence and is to be re-elected at every new legislature.

 

2.2 Ordinary Courts of Law

The judicial organisation of Mauritania is currently regulated by Ordinance n 2007/012 of 8 February 2007. The Ordinance creates a conventional three instance court system comprising:

At the first instance: Wilaya (Regional) Courts, Criminal Courts, Commercial Courts, Labour Courts, and Moughataa (district) Courts. [63]

At the second instance: Courts of Appeal.

At the third instance: The Supreme Court.

 

2.2.1 The Supreme Court

The Supreme Court is the highest court of the land in all matters except those falling under the jurisdiction of the constitutionally established courts seen above. [64] The Court is competent to hear appeals from decisions of Courts of Appeal or decisions in first and last resort of courts of first instance, [65] and has advisory powers. [66] As a court of law and not facts, the Supreme Court limits its scrutiny of decisions of lower courts to whether a law, procedural or substantive, has been violated. The Court is not a supreme court in the US sense of the term but is rather a cour de cassation as the French’s. As such, once it finds that a decision of the lower court is contrary to the law, it does not replace the ruling with its own ruling but simply squashes (casser) the decision and remits the matter to another court of appeal for a new decision on the substance of the case.

The Court is composed of a President appointed by the President of the Republic for a five year mandate that is renewable, of presidents of Chambers (the most senior of whom is the Vice President of the Court) and of counsellors. It is subdivided into 5 chambers (two civil and labour chambers, one commercial, one administrative and one criminal chamber). Each chamber is constituted by a president and 4 counsellors who all sit as a panel to hear cases falling under their chamber’s specialisation. Unlike other chambers which only hear cases in appeal from lower courts, the administrative chamber is unique in that it has jurisdiction over two categories of cases: [67] 1) cases which the Chamber hears as appeal from the administrative chambers of a Court of Appeal; and 2) cases which as per article 11 (2) of Ordinance 2007/012, are to be heard in first and last resort by the Supreme Court. Cases which fall under the first category are those listed under the administrative competence of the Wilaya court (below). Matters falling under the second category are listed in article 28 of the 1999 Civil, Commercial and Administrative Procedure Code and include actions against abuse of power or in appreciation of the legality of administrative acts of an individual or regulatory character; litigations relating to the individual situation of public servants and agents; certain matters relating to national (public) land including mining concessions; matters relating to expropriation for public use excluding litigations for compensation thereof; and litigations relating to municipal elections and elections of professional organisations.

For certain types of cases, the court is required to sit in chambres reunies [68] or chambre de conseil[69]. Decisions of the Court are taken by simple majority and selected decisions are published in the Official Gazette. Article 28 of the Ordinance 2007/012 requires that all the decisions be published in periodic bulletins. [70]

2.2.2 The Courts of Appeal

Article 29 of Ordinance 2007/006 makes it clear that the goal of the Mauritanian legislator is to progressively have one court of appeal in each of the 12 Wilajas while for the meantime envisaging a period where only one or a few more courts of Appeal may be contended with nationwide. At present, there are only three Courts of Appeal namely in Kiffa, Nouadhibou and Nouakchott. As such the territorial jurisdiction of these three courts extends beyond the Wilaya where they are located.

As per article 30 of the Ordinance, a court of appeal comprises of one or more civil and labour chambers; one or more commercial chambers; one administrative chamber and several criminal chambers one of which is earmarked for juveniles. These chambers hear appeals of decisions of courts of first instance falling under their specialisation. They sit in panel of three judges except in cases of appeals from the Criminal Court, where a panel of 5 judges is required.

2.2.3 Courts of First Instance

Wilaya Courts

Wilaya Courts are established at the headquarters of each region. As per articles 38- 41 of Ordinance 2007/006, the Wilaya court is competent on civil, administrative, penal ( including juvenile justice) and commercial matters and is organised in chambers, constituted of a single judge, according to those specialisations. On administrative matters, the competence of Wilaya courts covers actions in damages against the state, public agencies and public corporations with the exception of damages caused by government cars; litigations relating to government tenders, administrative contracts and public work; and tax litigations.[71] The civil competence of the court covers actions irrespective of the amount of claims relating to registered real properties; insurance; aeroplanes, ships, land motorised vehicles; the right to nationality; indirect taxes; and social security litigations. [72] Lastly, the commercial competence of the court includes all commercial actions regardless of the amount of claims relating to the effects of commerce, commercial companies, bank operations, bankruptcy, and competition.[73] However, if a commercial court exists in the Wilaya, the commercial jurisdiction of the Wilaya court goes to that court.

Commercial Courts

Article 46 of Ordinance 2007/006 provides for the progressive establishment of commercial Courts in each of the Wilayas. However at present there exist only two commercial courts, namely in the capital district Nouakchott and in the second largest city, Nouadhibou, which were established in 2006 by the CMDJ Government. Commercial courts are competent on commercial matters listed under the Wilaya court (above) as regulated by the Code of Commerce (Law nº 2000-05 of 18 January 2000). The court sits in a panel of three judges.

Labour Courts

Labour Courts are regulated by article 49 of Ordinance 2007/006 and by Book V of the Labour Code (Law nº2004-017). They are located at headquarters of Wilayas. The court hears cases sitting in a panel of five made of a magistrate who is its president, 2 assessors representing employers, 2 assessors representing employees, and one expert in Labour Law who however does not have deliberative powers. [74] The material jurisdiction of the court is listed in article 306 of the Labour Code and basically covers labour and social security related disputes. Procedures before labour courts are free and employees furthermore benefit of the free assistance of the court in the execution of decisions favourable to them.[75] A conciliation procedure before the Labour Inspectorate is mandatory before parties can submit their case to the labour court. Decisions of the labour court may be appealed before the Court of appeal; however cases whose claims do not exceed 200,000 Ouguiyas cannot be appealed but can nevertheless be brought directly through a pouvoie en cassation before the Supreme Court. [76]

Criminal Courts

Based at the headquarters of Wilayas, Criminal Courts are regulated by articles 50-53 of Ordinance 2007/006 and by specific sections of the Criminal Procedure Code.[77] The court sits in a formation of three judges and two jurors.[78] The court is competent to hear all cases amounting to felonies (crimes) and misdemeanours (délits) submitted to it by the State counsel, the Investigative Magistrate (juge d’ instruction) or the Procureur general in case of flagrant delictous.

Moughataa Courts

These are courts based at the headquarters of districts except in those headquarters of districts that are also headquarters of Wilayas. [79] The Moughataa Court consists of a single judge and has competence in all civil and commercial matters not falling within the competence of the Wilaya Court, notably matters relating to personal status, family, divorce, death and filiations. The Court hears in first and last resort all matters whose claims do not exceed 300’000UM in capital and 30’000 UM in income. [80] In penal matters, the Moughataa Court’s competence is limited to simple offences (contraventions de simple police). [81]

Informal/Customary Courts

Perhaps because Sharia, which is akin to Mauritania’s customary law, has been made part of the formal legal system, the laws on judicial organisation are silent as to informal or customary mode of resolution of conflicts. It would however be illusory to think that all disputes in Mauritania are solved through formal courts. Given popular ignorance of laws and general reluctance to resort to formal court, [82] there is little doubt that the vast majority of disputes are resolved in informal/customary forums at family, village and clan levels according to Muslim customs.[83]

Article 58 of Ordinance 2007/006 states that the Moughataa Court may use its conciliation powers to uphold amicable settlements, on matters within its competence, arrived at or out of court by the Mouslihs, that is, traditional Muslim adjudication authorities. It seems article 58 is the way through which the legislator seeks to give formal recognition to matters dealt with by informal/customary disputes resolution mechanism, particularly as the bulk of matters dealt with informally relates to personal status which is equally the prime competence of the Moughataa court.

2.3 Quasi-judicial bodies

2.3.1 The Mediator of the Republic

Established by Law n°93.27 of 07 July 1993 and Decree n°94.82 of 28 August 1994, the Mediator of the Republic is the equivalent of the Ombudsman of Scandinavian countries.[84] He receives citizens’ complaints against abuses by state institutions (public administration, local governments, parastatals and all institutions invested with a public service mission) that have remained unsolved. His duty consists in investigating these complaints and making recommendations to the Executive for these to be solved and, where necessary, suggesting disciplinary sanctions for the faulty officials. He addresses an annual report of his activities to the President of the Republic and may be seized by the latter for advisory opinions on litigations between citizens and the administration. Commentators however note that the Mediator of the Republic in Mauritania has remained a rather weak institution due to issues such as its lack of effective independence vis-à-vis the Executive [85] and poor human, financial and materials resources allocation, [86] and the fact that it can only be seized by elected representatives (MP and Mayors) and not directly by the citizens complaining against the administration.

2.3.2 The National Human Rights Commission

The debate over the establishment of an Independent Human Rights Commission in conformity with the UN demand for National Human Rights Institution is an old one in Mauritania. The Taya’s regime instituted in 1998, a Commissariat aux droits de l’homme, à la lutte contre la pauvreté et à l’insertion (CDHLCPI) whose mandate essentially consisted in designing national plans of action for the promotion of human rights, the fight against poverty and insertion. [87] However the establishment of this institution did not end persistent calls for the establishment of an independent human rights commission in line with the Paris Principles as acknowledged by the CDHLCPI itself. [88] On 12 July 2006, the CMDJ transitional government established a National Human Rights Commission. [89] The Commission is an independent public institution having both administrative and financial autonomy. Its members including representatives of public institutions, professional bodies and the civil society as well as civil servants from ministerial departments are involved in human rights. The latter however do not have deliberative powers. Members of the Commission benefit of an immunity and in the exercise of their mission, they may hear any individual and obtain all information and documents necessary from all public authorities except otherwise provided by law. The missions of the Commission include to:

 

       ·         Provide, at the request of the Government or on its own motion, advisory opinion on general or specific issues relating to the promotion and protection of human rights and the respect for
individual and collective freedom;

       ·         Review and formulate advisory opinions on national legislations and bills on Human Rights;

       ·         Contribute, by all appropriate means, to the dissemination and entrenchment of a human rights culture in the country;

       ·         Promote research, education and teaching of human rights at all educational levels and socio-professional milieu;

       ·         Follow up the conditions of detention of persons deprived of liberty;

       ·         Investigate all cases of violations of human rights noticed or brought to its attention and take all appropriate actions in consultation and coordination with competent authorities;

       ·         Submit an annual report of its activities to the President of the republic which is then made public.

3. Judicial training and officials

3.1 Training

The main avenue for training of lawyers in Mauritania is the Faculty of Law and Economics of the University of Nouakchott which offers a four-year degree in Law (Maîtrise). There is also the Advanced Institute for Islamic Studies and Research - (ISERI) which offers training in Sharia. A Maîtrise in law or Sharia or equivalent degree is the basic academic qualification to be admitted as Magistrate (judge and state counsel), Barrister, Sherriff bailiff and public notary.

3.2 Judges

Judges are generally recruited through a competitive exam opened to holders of any of the qualifications mentioned above. Successful candidates then undergo two years of theoretical and practical training at the National School of Administration. Upon graduation, they are appointed interim judges by a decree taken upon the proposal of the Minister of Justice and after consultation with the Higher Council of the Magistracy.[90] This Council is the main body in charge of guaranteeing the independence of Judges, although the strong inclusion of Executive members in its composition kind of waters down the independence and effectiveness of the Council itself. [91] Missions of the Council include overseeing the professional advancement of judges in the four grades into which the profession is divided and undertaking disciplinary actions against faulty judges.

The appointment of judges in various positions of responsibility within a court is dependent on the principle of seniority. Article 5 of the Status of Magistrates states that a magistrate cannot have another magistrate older than him in grade under his authority. Article 17 of the 2007 Ordinance on Judicial organisation gives an idea on how this principle operates in practice: ‘The title of Vice President of the Supreme Court is attributed to the President of chambers who is the most senior in the highest grade, and in case of equality in grade and seniority, the most aged and at equal age, the most senior in the supreme court.’

Apart from problems of corruption and political and ethnic pressure that plague the effectiveness of the Mauritanian judge, [92] one main problem to which the Mauritanian judiciary has been confronted is that of the shortage of judges. A 2007 study shows that the entire magistracy (judges and state counsels) only counted 173 judges. [93] In 2006, the Minister of Justice deplored that some 20 courts in the country had no judges. [94] The 2007 reform of the Status of the Magistracy sought to address this problem by allowing for the recruitment of law professors, barristers and court’s chief clerks into the Magistracy.

3.3 The Legal Department (Ministère public)

The Legal Department is constituted by magistrates who undergo the same training as judges. Unlike their colleagues of the bench, members of the legal department are more closely under the control of the Minister of Justice and do not depend on the Higher Council of the Magistracy. The Legal Department at the Supreme Court is headed by the Procureur General who is appointed by decree upon the proposal of the Minister of Justice. The Procureur General is responsible for the control and annual assessment of all members of the legal department nationwide. Professional advancement of members of the legal department is done on the basis of that assessment and of the assessment carried out by the General Inspectorate of Judicial and Penitentiary Administration headed by the Minister of Justice. [95]

The legal department at courts of Appeal is constituted by a procurer general and his substitutes. At Wilaya courts, the legal department is headed by the state counsel (procureur de la republique) who is the most central authority in terms of public prosecution. Article 35 of the Criminal Procedure Code states that the state counsel receives denunciations, complaints and investigation-reports of officers of the judicial police and decides on whether or not to prosecute. The state counsel and his substitutes equally represent the legal department before all other courts of first instance in their Wilaya. Some limited prosecution powers are bestowed on administrative heads of regions. Equal members of the judicial police form part of the legal department.

An interesting authority in the prosecution and investigation phase of criminal offences is the Investigative Magistrate (juge d’instruction). He is an independent magistrate based at the Wilaya court who is in charge of preliminary investigations which are mandatory in all cases of felonies and optional in cases of misdemeanours. He is seized by the state counsel, but may also be seized by a complaint with constitution of civil claimant (partie civile) [96] or at his own motion. [97] He has the power to issue all types of warrants and summons and to grant bail. He basically conducts a kind of pre-trial in chambers in which witnesses are heard and parties are allowed to be assisted by their counsels. At the end of this, he issues either an ordonnance de renvoi sending the accused for trial in court [98] or an ordonnance de non-lieu (no case to answer) discharging the accused. His rulings including those on detention and bail may be appealed by the accused, the state counsel and the civil claimant if any.

3.4 Barristers

Private legal practice in Mauritania is exercised by a single profession made of avocats or barristers. [99] All barristers are registered members of the Bar Association (Ordre national des avocats) which currently has some 264 members. [100] The organisation, functioning and admission to the Bar are regulated by Law nº 95-24 of 19 July 1995 as amended by Law nº 2005- 07 relating to the privileges of barristers. Article 3 of the 1995 Law states that Barristers have exclusive competence nationwide to postulate, assist, plead, defend and represent parties in all matters before the courts and other jurisdictional and disciplinary bodies. As per article 6, foreign barristers can equally represent clients before Mauritanian courts provided however that they are from a country that grants reciprocity to Mauritanian barristers, and that they give prior notice to the Bar President and to the counsel on other side (the state counsel in criminal cases), and finally that they elect residence in a local law chamber.

To be called to the Bar, candidates must have successfully undertaken a three year pupillage in a law chamber under the control of the Bar Association and must in addition meet the following requirements: (i) be of Mauritanian nationality and in possession of all their civic and civil rights; (ii) be at least 24 years old; (iii) be a holder of a Maîtrise in Law or Sharia or equivalent degree; (iv) not having been the author of any act which gave rise to a criminal conviction or contravene probity and morality; (v) be the holder of a certificate of aptitude to practice as a barrister (certificat d’aptitude a la profession d’avocat) issued by the Higher Institute of Professional Studies. As an exception to the above, PhD holders and Professors of law who have respectively 3 and 2 years of teaching experience and magistrates with 10 years experience may be directly admitted into the Bar.

As to the effective independence of the Bar, one may note that Law nº 95-24 consecrates the independence of the Bar by leaving all matters pertaining to its organisation including issues of admission exclusively in the hands of the elected Bar Council. [101] Further evidence of this independence can be found in the free and critical tone one finds in the monthly reports of Presidents of the Bar on the state of Justice in the country.[102]

 

3.5 Sheriff Bailiffs

The profession of sheriff bailiff (huissier) is regulated by Law nº 97-048 of 15 July 1997. As per Article 6 of this law, the functions of sheriff bailiff include drafting and serving processes and writs (citation, signification, assignation, commandements and convocation), undertaking constats (that is, witnessing and writing on the spot a report, in the form of an affidavit, of a given situation that has occurred) and executing judicial decisions and auction sales. Sheriff’s bailiffs are appointed by the Minister of Justice upon a proposition of the procureur general of the Court of Appeal geographically competent.[103] The appointing decision grants them an ‘office’ (a charge), that is, a geographical area within which they are to establish their chambers and carry out their functions. They exercise their functions under the direct control of the local state counsel who verifies that the acts they issue are in conformity with the law and that the fees charged are lawful. The requirements for admission as a sheriff bailiff are similar to those of barristers with however a competitive exam in lieu of the pupillage and the certificate of aptitude and an age limitation of between 25 and 50. Barristers with 5 years experience and court clerks with 10years experience, or 5 years in case the latter holds the Maîtrise, may be appointed directly without having to undertake the exam. The Sheriff’s bailiffs are organised under a body called l’ Ordre des Huissiers de Mauritanie.

3.6 Public Notaries

Public notaries are regulated by law nº 97-019 of 16 July 1997. Article 1 of this Law states that public notaries are public officers instituted to receive deeds for which the parties must or wish to give the authenticity character attached to deeds executed by public authorities, in order to guarantee the date, keep the original and deliver authenticated copies when necessary. The functions of the public notary therefore hinge around the drafting of what is typically called ‘actes authentiques’ which are documents having the greatest probative force.[104] Individuals may voluntarily resort to the public notary for any transaction which they wish to authenticate. However, Article 1(2) of law nº 97-019, states that certain deeds, to be enumerated by decree, are of the exclusive competence of public notaries.[105]

The requirements to qualify as a public notary are similar to those of barristers. Candidates after qualifying as sworn assistant of the 1st category (assistant assermenté de 1ere categorie) must undertake a three-year pupillage in the chambers of a public notary. The appointment of public notaries is made by the Minister of Justice upon the proposal of a Selection Committee presided by himself and whose members include the President and Procureur general of the Court of Appeal of Nouakchott, the Director of the Public Treasury and the Dean of the Faculty of Law and Economics of the University of Nouakchott . Like sheriff bailiffs, the appointing decision of public notary grants them an ‘office’.

D. Salient Human Rights Issues

Apart from the hegemony of the military characterised by the recurrence of military coups which was discussed above, Mauritania’s public life has been marked by the prominence of a number of issues, the most salient of which are slavery, the exclusion of negro-Mauritanians and gender.

1. Slavery and stigma of past Slavery: the Haratin Marginalisation

There is generally debate as to the continued existence of slavery in Mauritania with the government position being that only stigmas of past slavery exist whereas local and international NGOs state that slavery continues to be practised. [106] During the period 1999- 2002, Pieter Smit’s research in Mauritania estimated that there were between 60’000 and 200’000 slaves in the country and that there were favourable conditions for the increase of their number. [107] The National Human Rights Commission in a 2008 mission throughout the country documented specific cases of slavery.[108] It appears in fact that these slaves are from a community which has lived for century in the midst of their masters’ community with whom they have complicated kinship and share the same religion, often serves to blur the nature of their exploitation. Further, factors such as poverty, illiteracy and fear of violation of religious precepts contribute in the maintenance of the status quo. Even freed slaves and their progeny, which basically is the entire Haratin population, are still considered like outcasts and suffer a discrimination and contempt which one of them described as comparable to that of the untouchables in India. [109]

Slavery has been banned in Mauritania and was finally made a criminal offence in 2007. [110] Article 4 of this 2007 Law states that whoever practices slavery or incites for the alienation of another person’s liberty and dignity shall be punished with an with imprisonment from five to ten years and a fine from five hundred thousand Ouguiyas (UM 500’000) to one million Ouguiyas (UM 1’000’ 000). Despite the law, it appears Sharia influence; judges’ tribal loyalty and clientelism serve to bring to naught attempts by slaves and pro-slave organisations to challenge the practice through the courts of law.[111] SOS-Esclave, the main local NGO involved in the fight against slavery, reportedly launched 154 cases in courts in 2008 all of which are dismissed. [112] And till date, nobody has ever been convicted in the country for slavery. Efforts of popularisation of the 2007 anti-slavery law which were supported by the democratically elected government of president Abdallahi were, according to some NGOs, neglected after the August 2008 coup. [113]

2. Negro-Mauritanian Exclusion

In 1989-91, the government sponsored the massacre and massive expulsion of Negro-Mauritanian (Haalpulaar, Soninke and Wolofs). Some 100’ooo people reportedly crossed the borders into Senegal. Whole villages were rounded and deported to the dessert without food or water and some were saved only thanks to airplanes sent by Algeria, France, Morocco and Spain. They were then dropped in Senegal. To date a substantial number of these refugees still live in neighbouring Senegal and Mali. [114] The 1989 Events as they are often called marked the culmination point of a government policy of total arabisation of the society that sought to discard all non-Arab communities and to build the country exclusively around Arab (White Moors) identity and dominance. In this process, most Negro-Mauritanians in the public service were removed and some of those in the armed forces were physically eliminated. To date the perpetrators of these acts have never been brought to book since they are covered by a 1993 amnesty law that is still in force. The government is still to officially apologize, reinstitute the dismissed civil servants and compensate the community or restore their property including land which was seized. The process of return of the refugees is still ongoing. Civil society organisations fighting against the exclusion of Negro-Mauritanians have claimed that the new National Human Rights Commission be empowered to investigate the 1989 events and prescribe solutions despite article 5(2) of the Ordinance establishing the Commission which states that it is not competent on issues that happened prior to its establishment.[115]

3. Gender

Mauritania ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2001 and submitted its first report on 2 August 2005. In their final observations on the report delivered on 11 June 2007, the committee of experts of CEDAW expressed concern on the continued existence of a patriarchal ideology, customs and stereotypes deeply rooted in the Mauritanian society that legitimise gender-based violence including conjugal rape, FGM, forced and early marriages and the practice of garving. [116] The Commission equally deplored the generalised poverty of women, their high percentage of analphabetism and discriminatory provisions against women in the Personal Status Code. [117]

FGM continues to be widely practiced in Mauritania. The practice reportedly still affects some 71% of women, [118] despite Ordinance 2005-015 of 5 December 2005 on child protection whose article 12 provides for 1 to 3 years imprisonment for whoever subjects a female child to FGM and up to 4 years if the perpetrator belongs to the medical or paramedical profession. From official sources, early marriages affect an estimated 19 % girls below 15 and 43% below 18. [119]

On the side of women’s representation in official positions, one notes that the institution of the requirement for parties to present at least 20% of women in their list in municipal and legislative elections. Currently the National Assembly is made of 22.11% women, that is, 21 out of the 95 members.[120] In the Senate there are 10 women out of 56 members, however a big leap forward from the only 1 woman the body counted in 2000. [121] In the government of General Aziz there were only 4 women out of 26 cabinet ministers and women activists were deploring the fact that women are relegated to low profile ministries. [122]

 

E. Legislations

· The Constitution

 

· Ordinance nº 92.04 of 18 February 1992 laying down the Organic Law of the Constitutional council

 

· Decree n° 92.041 PR of 22 August 1992 on the organisation of the General Secretariat and financial regime of the Constitutional Council & others decrees on the Constitutional Council

 

· Law n°93-19 of 26 January 1993 on the Cour des Comptes as amended by Ordinance n° 2007- 006 of 12 January 2007

· Law n° 93-20 of 20 January 1993 on the Status of Members of the Cour des Comptes

· Decree n°96-041 of 30 May 1996 determining the modalities of application of Law n° 93.19 on the Cour des Compte

· Law n°93.27 of 07 July 1993 and Decree n°94.82 of 28 August 1994 on the Mediator of the Republic

· Ordinance nº 015-2006 of 12 July 2006 establishing the national Human Rights Commission

· Law n° 94.012 of 17 February 1994 on the Status of the Magistracy

· Law n°95-24 du 19 July 1995 repealing and replacing Ordinance 86- 112 of 12 July 1986 on the institution of a National Bar Association

· Law nº 2005- 07 relating to the privileges of Barristers

· Law nº 97-018 of 15 July 1997 on the Status of Sheriff bailiffs

· Law n 97-019 of 16 July 1997 on the Status of Public Notaries

· Decree n° 99.130 of 06 November 1999 laying down the list of deeds of the exclusive competence of public notaries

 

· Ordinance nº 2007/012 on Judicial Organisation

· The Civil, Commercial and Administrative Procedure Code (Law n° 99-035 of 24 July 1999)

· Ordinance n°2007-035 of 10 April 2007 amending the Civil, Commercial and Administrative Procedure Code

 

· The Criminal Procedure Code (Ordinance n° 83-163 of 09 July 1983)

 

· The Penal Code (Ordinance n°83.163 of 9 July 1983) amended by Ordinance n°2007-036 of 17 April 2007

 

· Law n° 2007 – 048 of 3 September 2007 criminalising the practice of slavery

· The Labour Code (Law n° 2004-017 of 6 July 2004)

 

· The Personal Status Code (Law n° 2001-052 of 19 July 2001)

· The Code of Commerce (Law nº 2000-05 of 18 January 2000)

· The Code of contract and Obligations (Ordinance n°89- 126 of 14 September 1989)

· Code of Customs (Law n° 66-145 of 21 July 1966)

· Investments Code (Law n° 2002-03)

· Code of Public Tenders (Decree n° 2002-08 of 12 February 2002)

· The Banking Code (Law n° 95-011 of 17 July 1995)

· Ordinance n°020/2007 regulating lending companies

· The Insurance Code of (Law n° 93 – 40 of 20 July 1993)

· The Code of Water (Ordinance n° 85-144 of 4 July 1986)

· Mining Code Bill 2008

· Mining Code (Law N° 99/013)

· Ordinance n° 88.151 on the Judicial and Fiscal Regime of Oil Prospection and Exploitation

· The Environment Code (Law n° 2000-045)

· Law n° 2000-042 on the Protection of Plants

· The Code on Hunting and the Protection of Nature (Law n° 97- 006 of 20 January 1997)

· The Pastoral Code(Law n° 2000-044)

· T he Forest Code (Law n° 97-007 of 20 January 1997)

· Fishing Code (Law n°2000-025 of 24 January 2000)

F. Online Sources

Country Sources

 

· Government official website

 

· National Assembly

 

· Senate

 

· Ministry of Justice

 

· National Portail

 

· Cour des comptes

 

· University of Nouakchott

 

· Bar Association (Ordre des avocats de Mauritanie)

 

· SOS Esclave

 

International Sources

 

· Droit-Afrique.com

 

· The World Law guide: legislation mauritanie

 

· NATLEX: International Labour Organisation

 

· Global legal information network (Law Library of Congress)

· Association des Cours Constitutionnelles ayant en Partage l'Usage du Français ACCPUF (informations on the Constitutional Council)

· Association des Hautes Juridictions de Cassation des pays ayant en partage l'usage du Français (information on the Supreme Court)

G. Selected Bibliography

Bullard, A ‘From Colonisation to globalisation: The vicissitudes of slavery in Mauritania’ (2005) 179-180 Cahiers d’ etudes africaines XLV

Diop, B ‘La reforme de la justice et la protection des droits de l''homme en Mauritanie’ (2007) unpublished Masters thesis, Université du Havre.

Gaye, S ‘L'évolution et la protection des droits de l'enfant en Mauritanie’ Unpublished Masters thesis (2007) Université de Perpignan

Jourde, C ‘Mauritania’ (2007) Freedom House Countries at the Crossroad Report.

Marchesin, P ‘Juge moderne et droit musulman : le cas de la Mauritanie’ (1990) 156 (Special Issue) Afrique Contemporaine.

Salem, ZOA ‘Droit du statut personnel et équivalence citoyenne en République islamique de Mauritanie : Exploitation extrême et travail forcé’ (2003) 336 La Pensée.

Youssoufi, T ‘Le personnel et les auxiliaires de la justice’ (1988) 4 Revue mauritanienne de droit et d’économie.



[1] A decree of 22 March 1924 regulated local courts. See generally B Diop, ‘La reforme de la justice et la protection des droits de l''homme en Mauritanie’ (2007) unpublished Masters thesis, Université du Havre. Available at http://www.memoireonline.com/05/08/1082/m_reforme-justice-protection-droits-de-l-homme-mauritanie0.html Paragraphe 1 : Les juridictions de droit local (accessed on 6 July 2009).

[2] M Meunier ‘Chute de Moktar Ould Daddah’ Jeune Afrique, 10 September 2008 available at http://www.jeuneafrique.com/Article/LIN06078chutehaddad0/Chute-de-Moktar-Ould-Daddah.html (accessed on 10 July 2009).

[3] See ‘Mauritanie: Situation institutionnelle’ available at http://www.etat.sciencespobordeaux.fr/_anglais/institutionnel/mauritania.html (accessed on 6 July 2009) para 1.

[4] C Jourde ‘Mauritania’ (2007) Freedom House Countries at the Crossroad Report, 2. Available at http://www.freedomhouse.org/uploads/ccr/country-7228-8.pdf (accessed on 6 July 2009).

[5] ‘Mauritania election campaign starts, boycott holds’ Reuters 21 May 2009 available at http://www.alertnet.org/thenews/newsdesk/LL949632.htm (accessed on 6 June 2009). The interim at the Presidency is assumed by the President of Senate, Mr Ba Mamadou Mbaré, as provided by the Constitution.

[6] See Communiqué of the Peace and Security Council of the African Union: http://www.africa-union.org/root/ua/Conferences/2009/juin/PSC/10juin/Communique%20on%20Mauritania%20EN.pdf . For the full text of the Accord see http://www.ouestaf.com/Accord-du-2-juin-entre-partis-politiques-mauritaniens-obtenu-a-Dakar-le-texte-integral_a2488.html (accessed on 6 July 2009). The implementation of these accords however gave rise to some difficulties which were solved in a second round of talks in Dakar and Nouakchott with all parties finally coming to a consensus.

[7] See the 1961 and 1965 Laws on judicial organisation.      

[8] See P Marchesin, ‘Juge moderne et droit musulman : le cas de la Mauritanie’ 1990 156 (Special Issue) Afrique Contemporaine 261 ; See also Diop (n 1 above) Section 3 : La justice post-coloniale.

[9] Laws such as the Penal Code, the Criminal Procedure Code, the Land Tenure Code, the Civil Commercial and Administrative Procedure Code and the Code of Contracts and Obligations were all redrafted in 1983-89 to include Sharia norms.

[10] Marchesin (n 8 above) 264 has an interesting discussion on the importance of both Sharia and French Civil Law influence on the Mauritania legal system, he concludes that: 'If therefore Sharia has officially become the “sole and unique source of the law” the persistence of the influence of the French law even on reforms linked to Islamisation gives to this recognition of Sharia, a symbolical and political connotation rather than a judicial one.’- the translation is ours.

[11] Article 5 of the 1991 Constitution. This unequivocally and constitutionally recognised the pre-eminence of Islam and Sharia was first introduced by the Constitution of 9 February 1985 whose preamble stated that: ‘Islam is the religion of the State and of the people. The only and unique source of law is the Islamic Sharia.’ - The translation is ours.

[12] The Sharia operational in Mauritania, like in the rest of North Africa and part of West Africa is that of the Malekite School, which with Hanafism, Shafism and Hanbalism constitute the four main Sunni legal schools. In addition to the Quran, the Sunna (sayings, practices, and teachings of the Prophet Mohammed), the Ijma ( consensus of experts) and qiyas (analogies) which is used by all the four schools as sources of Sharia, Malekism also uses the practices of the inhabitants of Medina, the city of the Prophet, which is viewed as a Sunna in practice.

[13] Article 14 of Ordinance nº 2007/012 on Judicial Organisation.

[14] T Youssoufi, ‘Le personnel et les auxiliaires de la justice’ (1988) 4 Revue mauritanienne de droit et d’économie 26. Cited by Marchesin (n 8 above) 265.

[15] Marchesin (n 2 above) 265-266.

[16] Article 32 of Ordinance 86-103 of 1 July 1986.

[17] For a discussion of those rulings see Diop (n 1 above) Paragraphe 2: La cour supreme.

[18] See Articles 1 and 19 of Law nº 99-035 of 24 July 1999 on The Civil, Commercial and Administrative Procedure Code.

[19] MO Salah, ‘Quelques aspects de la réception du droit français en Mauritanie’ (1989) 5 Revue mauritanienne de droit et d’économie 25.

[20] The Constitutional Council motivated its decision of 16 April 2009 relating to the vacancy of the post of President of the Republic by stating , among others, that ‘ Mindful that the situation in the country since 6 August 2008 has an exceptional character which requires that it be treated with great wisdom and responsibility, and applying thereto the rule which calls for having advantages prevailed and avoid mischief, a rule well known in Sharia which is our unique source of law, as stated in the preamble of the constitution....’ The full decision is available at http://fr.allafrica.com/stories/200904160808.html (accessed on 6 July 2009)

[21] See Articles 306 - 309 of the Penal Code.

[22] Article 341 of Penal code

[23] N 21 above. However these punishments were only applied a short while after the reforms of 1980s and have since not been enforced in practice.

[24] Article 11 of the Constitution.

[25] See Article 14 of the Constitution and Articles 357-366 of the 2004 Labour Code.

[26] Articles 26-28 of the Constitution.

[27] Some 8 African countries, Algeria, Burkina Faso, Cameroon, Chad, Gabon, Guinea, Namibia, Togo and Uganda have recently stripped the term limits from their constitution in order to allow the incumbent to run for a third term. See generally D Vencovsky ‘Presidential term limit’ (2007) 2 Accord - Conflict Trends, available at http://www.accord.org.za/downloads/ct/ct_2007_2.pdf

[28] Article 29 of the Constitution.

[29] Article 99 of the Constitution.

[30] The Niger Constitution equally has prohibition on amendments in relation to the presidential term. President Mamadou Tandja’s bit to nevertheless amend the constitution by referendum to run for a third term has been twice declared unlawful by the country’s Constitutional Council. However Tandja took up exceptional powers equally provided for the Constitution and allowing him to rule alone by ordinances and has dismissed members of the Constitutional Council despite their irremovability (inamovibilité) and appointed new members. Tandja is currently pushing forward his plan to organise the referendum amidst widespread protests of civil society and opposition parties as well as international threats of isolation and sanctions. At the time of writing, events were still unfolding. For updated news on the saga in Niger see generally http://www.tamtaminfo.com/ .

[31] Article 102 of the Constitution.

[32] Article 32 of the Constitution.

[33] These organic laws relate to: the presidential election and vacancy at the Presidency(article 26); the replacement of members of government for incompatibility (article 44); conditions of Eligibility, number and mandate of Members of Parliament (articles 48-51); finance (article 57); complement of the domain of exclusive competence of Parliament (article 57); the Constitutional Council (articles 82-88); the Magistracy (article 89); the High Court of Justice (article 92); and the Economic and Social Council (article 97).

[34] Article 80 of the Constitution.

[35] These subject areas are: ‘peace treaties, union treaties, commerce treaties, treaties or accords concerning an international organization, treaties which require the finances of the State, treaties which modify provisions of a legislative nature, treaties concerning the status of persons, and treaties concerning the borders of the State’.

[36] See for example articles 43-45 of the Constitution of Cameroon; articles 88-91 of the Senegal’s; and articles 114-116 of Mali’s.

[37] See AD Zayas ‘Le droit constitutionnel et l'internationalisation des droits de l'homme’ available at http://alfreddezayas.com/Lectures/tunis3_fr.shtml

[38] Other texts regulating the Constitutional Council are Decree nº92.041 of 21 August 1992 relating to the organisation of the General Secretariat and the financial regime of the Council; and Internal Rules of Procedure of the Council.

[39] Article 14 of the Council’s organic law.

[40] Article 31 of the Council’s organic law.

[41] Article 87 of the Constitution.

[42] Article 17 of the Organic law of the Constitutional Council.

[43] Article 85 of the Constitution and articles 46-51 of the Organic Law.

[44] Articles 26-83 of the Constitution and article 30 of the Organic Law

[45] Articles 49-84 of the Constitution and articles 32 to 45 of the Organic Law.

[46]Article 33 of the Organic Law.

[47]Articles 59-62 of the Constitution. Also articles 24-29 of the Organic Law .

[48] Articles 40-41 of the Constitution. Article 31 of the Organic Law.

[49] For the full judgement see (n° 20 above).

[50] Articles 39 of the Constitution and 52-54 of the Organic Law.

[51] Other regulatory texts include Decree n°96-041 of 30 May 1996 determining the modalities of application of Law n° 93.19 and Law n° 93-20 of 20 January 1993 on the Status of Members of the Cour des Comptes.

[52] Others organs in charge of the control of finance include the State Inspectorate General and the General Inspectorate of Finance. Article 49 of the Ordinance 2007-006 requires these organs to submit their annual report to the Cour des Comptes.

[53] Articles 19- 20 of Law n° 93-20 of 20 January 1993.

[54] Article 10 of Ordinance2007-006.

[55] Jourde (n4 above) 19.

[56] Article 11 of Ordinance2007-006.

[57] Articles 13 and 16 and Chapter V of Law n°93-19 of 26 January 1993.

[58] Article 42 of Law n°93-19 of 26 January 1993.

[59] Article 14 and 15 of Law n°93-19 of 26 January 1993.

[60] Article 48 of Ordinance 2007-006.

[61] In case of treason, the President must first be impeached by the two chambers of Parliament voting together in a public vote by an absolute majority of the members; and he is then tried before the High Court of Justice.

[62] ‘Des dispositions de la Haute cour de justice rejetées en Mauritanie’ Panaf http://www.panapress.com/paysindexlat.asp accessed on 1 June 2009)

[63] A wilaya is a territorial administrative unit, a region. Mauritania is divided into 12 Wilayas plus the Capital District, Nouakchott. And Wilayas are divided in districts called Moughataa.

[64] Article 11 of Ordinance nº 2007/012.

[65] These include decisions of labour courts and Moughataa courts on claims not exceeding respectively 200,000 and 300 000 Ouguiyas which are directly appealable before the Supreme Court.

[66] Article 12 of the 2007 Ordinance states that the Supreme Court may be requested to give its opinion by Government or individual members of government in respect of difficult legal issues related to the public administration.

[67] This uniqueness of the administrative chamber certainly springs from the importance of the distinction between administrative jurisdiction and civil jurisdiction which is a characteristic feature of the Civil Law system. In France, for example there exist two different branches of courts, namely civil courts at the top of which is the Cour de Cassation and administrative Courts at the top of which is the Conseil d’état; with even a third set of court called the Tribunal de conflits whose jurisdiction is to determine in conflicting cases whether a particular case falls under the civil or administrative jurisdiction. In Mauritania, the distinction civil/ administrative law equally exists but the two distinct branches of courts have not been established. Rather, administrative matters are treated by the administrative chambers existent in Wilaya Courts, Courts of Appeal and the Supreme Court.

[68] The Court is required to sit in Chambres reunies in order to hear the following cases: litigations relating to contradictory decisions rendered by one or more jurisdictions on the same matters between the same parties; cases launched by the Procureur General in the interest of the law when the parties did not appeal within the time limits; Appeals for revision of a death sentence; judgments which are appealed before the court for a second time; and for advisory opinions. When sitting in Chambres reunies the Court is composed of its president, presidents of chambers and counsellors. The quorum is met when at least the president, one president of chambers and two counsellors of each chamber are present. See articles 21-22 of Ordinance 2007/006.

[69] In Chambre de conseil, the Court is composed of its President and presidents of chambers and hears cases of conflicts of competence between two or more jurisdictions and certain cases brought against Magistrates. See article 23-24 of Ordinance 2007/006.

[70] It is however not sure if this publication is done in practice. Article 52 of the Law 99/039 on judicial organisation already prescribed publication of Supreme Court’s judgements in an annual bulletin but this was never executed in practice. Diop (n 1 above) Section 2: La modernisation de la justice et la promotion des modes alternatifs de règlement des differents ,states that this absence of law reporting has been one of the main impediments to the effectiveness of the Judiciary. For Some decisions of the Supreme Court click here.

[71] Article 25 of the 1999 Civil, Commercial and Administrative Procedure Code.

[72] Article 26 of the 1999 Civil, Commercial and Administrative Procedure Code.

[73] Article 27 of the 1999 Civil, Commercial and Administrative Procedure Code.

[74] Article 300 of 2004 Labour code.

[75] article 309 of 2004 Labour code.

[76] See articles 326-327 of the Labour Code.

[77] Book II of the 1984 Criminal Procedure Code.

[78] A list of 10 citizens aged above 25, literate and capable of acting as jurors is established yearly for each region by the state counsel and the President of the Wilaya court and sent to the Procureur general of the Court of Appeal. Before a trial, the President of the Supreme Court upon proposal of the procureur general appoints from this list two jurors who may be recursed by the parties. See articles 219-229 of the Criminal Procedure Code.

[79] Article 54 of Ordinance 2007/006. Notwithstanding the exception, article 54 provides for a Moughataa court in each district of the capital city Nouakchott.

[80] Article 20 of the 1999 Civil, Commercial and Administrative Procedure Code.

[81] See article 54 of Ordinance 2007/006.

[82] Diop (n 1 above ) Chapitre 1 : Les principes garantissant l'indépendance de la justice

[83] An expert opinion states that: ‘An important number of problems that occur among the populations are resolved amicably, under the supervision of the Jemâa (assembly of wise men and notables)’ see ‘Mauritanie, responses aux questions sur l’independence de la justice’: http://www.ahjucaf.org/spip.php?mot29 (accessed on 10 July 2009).

[84] For an analysis of the ombudsman institution worldwide see: the International Institute of Ombudsman

[85] By law, the Mediator is attached to the Presidency and is appointed by the President of the Republic who equally has the power to dismiss him at any time.

[86] Although the mediator has power to request outside expertise, its own staff is limited to 3 assistants and an accountant.

[87] Decree nº 89-98 of 2 July1998 and amended in 2001and 2003.

[88] See CDHLCPI’s document (n 25 above) 58 at www2.ohchr.org/english/issues/plan.../ mauritanie_nhrap.doc -

[89] Ordinance nº 015-2006 of 12 July 2006.

[90] Article 22 of Law n° 94.012 of 17 February 1994 on the Status of the Magistracy. See also Diop (n 1 above) Paragraphe 2 : Le rôle du CSM.

[91] The President and vice president of the Higher Council of the Magistracy are respectively the President of the Republic and the Minister of Justice. Other members of the Council include the President, vice President and Procureur General of the Supreme Court, the General Inspector of the Judiciary and Penitentiary Administration and three Magistrates elected by their peers. See generally Diop (n 1 above) Chapitre 2 : Les facteurs garantissant l'indépendance de la justice.

[92] Jourde (n 4 above) 15-16.

[93] Diop (n 1 above) Chapitre 2 : Resources humaines et formation.

[94] n 92 above.

[95] Article 10 of Ordinance 2007/006.

[96] Civil Law allows victims of criminal offences to attach a civil claim for damages to the criminal case prosecuted by the state rather than having to institute a whole new civil suit. A victim who institutes such a claim is called partie civile.

[97] Articles 41 and 71 of the Criminal Procedure Code.

[98] This may be the Criminal Court, the criminal chamber of the Wilaya court or the Moughataa court depending on whether the final charges retained qualify respectively as felony, misdemeanours or simple offences.

[99] There does not exist like in the United Kingdom the distinction barrister and solicitor or attorney and advocate like in South Africa or the avocats and avoués of France.

[100] See the Bar website http://avocatmauritanie.org/

[101] This is particularly important if one takes into consideration the fact that the first law regulating the profession of barrister in Mauritania (Decree 75.163 of 15 May 1975) placed the profession under the control of a Commission which was presided by the Minister of Justice and comprised as members the Procureur General of the Supreme Court, the president of the tribunal of first instance, a representative of the then single party (Parti du Peuple Mauritanien), a barrister designated by his peers and a civil servant of the ministry of Justice who ran the Secretariat of the Commission.

[102] See (n 10o above).

[103] Article 8 of Law nº 97-048.

[104] It is important to note that Civil Law distinguishes between actes sous seing privé and actes authentiques. The former are simply documents drafted privately by the parties while the latter are documents which the party had had drafted by an official authority which typically is the public notary and which carry the highest probative force. This distinction is important given the predominance of documentary proof in the Civil Law of Evidence.

[105] See Decree n° 99.130 of 06 November 1999 laying down the list of deeds which are of the exclusive competence of public notaries.

[106] See Jourde (n 4 above) 13. See Amnesty International Report 2008 on Mauritania http://www.amnesty.org/en/region/mauritania/report-2008 ; See generally website of SOS Esclaves http://www.sosesclaves.org .

[107] P SmitL’esclavage dans les projets de la Banque mondiale en Mauritanie’ (2002) 2 -6. avaialable at http://www.xs4all.nl/~pietersm/wp5fra.doc English version at www.xs4all.nl/~pietersm. A member of SOS-Esclave estimated that some 300’000 – 500’000 people are currently held as slaves, the majority of whom are women and children given that male slaves are more apt to run away: Interview of Biram Dah Abeid ‘Mauritanie : esclavage, islam et « démocratie»’ at Tribune des droits de l’homme available at http://www.droitshumains-geneve.info/spip.php?page=sommaire&lang=fr.

[108] See ‘Mission de la Commission Nationale des Droits de l’Homme dans les Wilaya du Hodh El Gharbi,l’Assaba et du Tagant du 6 au 12 avril 2008’ and ‘Nouvelles situations d’esclavage déclarées en Mauritanie depuis le début del’année 2004’. Both available at http://www.sosesclaves.org (accessed on 9 July 2009).

[109] Interview of Biram Dah Abeid (n 107 above).

[110] The practice was first banned by the French in 1905 and then after independence in 1960 and 1981 (Ordinance n°81.234 of November 1981 abolishing slavery). The elected government of Sidi Ould Cheikh Abdallahi passed Law n° 2007 – 048 of 3 September 2007 criminalising the practice of slavery. For a full text of that Law see http://www.sosesclaves.org/ Pagecentrale.htm

[111] Smit (n 107 above) 6; also Jourde (n 4 above) 13.

[112] N 1o9 above.

[113] US state report 2008 on Mauritania. http://www.state.gov/g/drl/rls/hrrpt/2008/af/119013.htm .

[114]Plus de 10.000 réfugiés mauritaniens recensés au Mali, 80 % veulent rentrer’ Ouestafnews 30 June 2009 Available at http://www.ouestaf.com/Plus-de-10-000-refugies-mauritaniens-recenses-au-Mali,-80-veulent-rentrer_a2511.html (accessed on 6 July 2009) See also ‘268 Mauritaniens réfugiés au Sénégal regagnent leur pays available at http://www.jeuneafrique.com/Article/DEPXXIJ20081230T192431/-Refugie-Cheikhani-Ould-Mohamed-Saleh-268-Mauritaniens-refugies-au-Senegal-regagnent-leur-pays.html (accessed on 9 July 2009).

[115] See ‘Le Président reçoit le représentant de la commission nationale des droits de l’homme’ http://www.ocvidh.org (accessed on 25 June 2009).

[116] The practice of garving consists in overfeeding, often force-feeding, young girls so that they attain voluptuous forms which are appreciated locally as a sign of beauty and opulence.

[117] See Final Observations of the CEDAW Committee available at http://daccessdds.un.org/; see also ’Mauritanie: Renforcer la volonté politique mauritanienne’ http://genre.francophonie.org/ (accessed on 9 July 2009).

[118] S Gaye ‘L'évolution et la protection des droits de l'enfant en Mauritanie’ Unpublished Masters thesis (2007) Université de Perpignan, available http://www.memoireonline.com/12/08/1663/m_Levolution-et-la-protection-des-droits-de-lenfant-en-Mauritanie0.html Paragraphe 2 : Pratique traditionnelle néfaste.

[119] UNCRC ‘Réponses écrites du gouvernement de la Mauritanie à la liste des points à traiter (crc/c/mrt/q/2) établie par le comité des droits de l’enfant à l’occasion de l’examen du Second rapport périodique de la Mauritanie’ : http://daccessdds.un.org/doc/

[120] Source: http://www.ipu.org/parline-f/reports/1207_A.htm . See also official website of the National Assembly http://www.assembleenationale.mr (accessed on 9 July 2009).

[121] Source: ‘Seats in Parliament: Upper House or Senate (held by women as %of total’ available’ at http://www.pogar.org/stats/indicators/indicator15.pdf. Mauritania ranks number two among all Arab countries after Oman with 20% of women in the upper house of Parliament and Morocco and Yemen ranking last with only 1.8%.

[122] See Interview of Mariam Mint Mustapha, a gender activist: ‘Mauritania: 'Justice and Equality for All'’ 27 May 2009 Inter press Service News Agency. Available http://ipsnews.net/news.asp?idnews=46986 (accessed on 10 July 2009).