by Michel Tchanou, Benin, October 1997
THEME = JUSTICE
It is well known that to create a state run by the rule of law, is impossible without the existence of an independent and active judiciary. In section VI of Benin's Constitution, we read: "Judicial power is independent of the legislative and executive powers. It is exercised by the Supreme Court, the courts and tribunals (e.g. County Courts) established in accordance with the Constitution".
Since separation of power is established by the Constitution, it can be said that in the Republic of Benin, justice is administered in the name of the people of Benin. In the exercise of their function, judges are submitted to the authority of the law. The President of the Republic is the guarantor of this justice. He is assisted in this task by the Higher Council of Judges.
For a country with a population of five million, Benin at present has only 156 judges and somewhat less than one hundred lawyers. Most of the judges are trained at the National School of Administration. They are then appointed by the President of the Republic, having been recommended by the Minister of Justice who acts on the advice of the Higher Council of Judges. To take up specific functions, such as Attorney-General, Deputy Attorney- General, or Judge in the Attorney-General's Office, the same procedure must be followed.
The Superior Council of Judges is one of Benin's central pillars of the judicial system. It is composed of the President of the Republic (de jure), and members appointed by him, namely the president of the Supreme Court (first vice-president), the Minister of Justice (second vice-president), the presidents of the chambers of the Supreme Court, the president(s) of the Appeals Court, the Attorney-General who sits in the Appeals Court, an independent personality outside the judiciary, known for his intellectual and moral standing, and two judges, one of whom works in the Attorney- General's Office.
The Supreme Court is the highest instance in matters of administration, dispensing justice and state accounts. It is also competent to arbitrate in disputes about local elections. There is no appeal to decisions taken by the Supreme Court. They are binding on the Executive, the Legislative and all other jurisdictions.
The President of the Supreme Court is appointed by the President of the Republic for a period of five years, after consulting the president of the National Assembly. He is chosen among eminent judges who have at least fifteen years professional experience. He may not be removed from office during the period of his mandate, which may be renewed only once. The Constitution also provides for the establishment of a High Court of Justice. It is composed of members of the Constitutional Court, (except its president) and six elected Members of Parliament (the National Assembly), and the president of the Supreme Court.
The High Court, which elects its president from one of its members, has the power to judge the President of the Republic and members of the government, for crimes of high treason, and offenses against the law committed during their period in office. It can also judge their accomplices in cases of conspiracy against state security. The decision to impeach and try the President of the Republic and members of the government, must be carried by a two-thirds majority of Members of Parliament.
If a citizen commits an offense which has nothing to do with any particular position (e.g. office of state) he may hold, he is tried before an ordinary court (Magistrates' Courts, County Court, etc.) He has the right as does every citizen, to have recourse to the services of a lawyer.
In conformity with Article 48 of Law number 65-6 of 20 April 1965, to be admitted to the Bar, a lawyer must have the appropriate diploma, certifying that he is competent to carry out his profession of lawyer. He has to follow a training course and registration for the said training course is open to holders of a Masters Degree in Law.
Lawyers registered at the Bar, can practise their profession both in the Appeals Court and in all other jurisdictions. Lawyers from other countries can plead in Benin's courts, provided there is a reciprocal agreement between their country and Benin, and Benin's President of the Bar has been informed.
It must be admitted that Benin's judicial system is presently unsuited to accomplish the mission confided to it by the Constitution.
In fact, it contains a certain number of malfunctions, particularly: slowness, anachronism of the laws applied in the courts, its distance from the people seeking justice. Since independence on 1 August 1960, Benin's judicial "map" has not changed: Eight local courts, a few Reconciliation Courts, which as their name implies, have no judicial powers; only one Appeal Court which sits in Cotonou (the economic capital of Benin) and which has jurisdiction over the whole country.
The deplorable consequence of this unequal spread of court jurisdictions, is to distance very many people, geographically, from access to justice. The eight local courts are virtually the only places where they can get some kind of justice.
An opinion poll was carried out at the request of the Justice Minister, 20-22 September 1996, within the judicial system, by the Benin Polling Institute. In answer to the question: "Is Benin's legal system adapted to today's needs?". 19% answered - "Yes"; 16.3% answered - "No"; 22.6% answered - "More or less"; 42.1% had no opinion.
According to the same poll, 64.5% of people arraigned in courts, held that verdicts were not correct, and 48% approved of acts of punishment by the populace, which now assume alarming proportions in the large towns of Benin. For these 48%, this kind of activity is the result of a crisis of confidence in Benin's judicial system.
To try and improve this somewhat tarnished image of justice, Benin's government held a symposium on justice from 4-7 November. Here are a few of the suggested solutions: existing laws and regulations must be re-examined; the organisation and functioning of the judicial system must be improved by creating a local court in each local council area; additional financial resources must be allocated to the courts.
Implementing these reforms, will certainly enable Benin's justice system to respect the rights of each citizen, and to make justice a real instrument of peace.
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