by Alphonse Quénum, Côte d'Ivoire, October 1997
THEME = JUSTICE
Côte d'Ivoire's political stability, compared with what's been going on in neighbouring countries, has certainly guaranteed the preservation of its judicial institutions, but it has also prevented these same institutions from developing and becoming more democratic. President Houphouet-Boigny was not afraid to declare that he "preferred injustice to anarchy".
Like most former French colonies, Côte d'Ivoire's judicial structures and laws sometimes appear to be poorly adapted to the country's present needs.
Côte d'Ivoire has a population of about 12 million people, characterised by their ethnic diversity - there are about 60 ethnic groups. There's also a large foreign population who form about one-third of the entire population.
The people live under a regime which is constitutionally democratic, but the overbearing predominance of the ruling party, limits the effectiveness of this very democracy. Justice is administered by the Supreme Court, the Appeals Court, the County Courts and other specialised courts, and dispensed by about 300 judges and a similar number of lawyers. The lawyers are organised in a Legal Association which has its own Council of Administration and is presided over by the President of the Bar.
Judges are appointed by the Executive: either directly or from among those who have followed the appropriate training period and passed the necessary examinations. When it comes to making appointments, politics, ethnicity and religious factors play no part. But in cases of discretionary appointments, there is evidence of a tendency towards tribalism. Judges are not appointed for life, and in principle, retire at 60; but those serving in the Supreme Court and other higher courts of justice stay on until 65.
Judges' training is provided for by the legal department of the National School of Administration. They must hold a law degree. Also, the Justice Ministry organises training sessions. But these are not organised for all judges.
The Constitution guarantees the judiciary's independence, but the Executive still has a great deal to say. The country's central administration is liable to interfere with the judiciary, by giving instructions or demanding reports. Because of this, it is difficult to persuade judges to give written testimony when they have been "interfered with" in the cause of their duties. Some judges do admit they've had briefs withdrawn from them.
To show that justice, as administered in Côte d'Ivoire, is not always impartial and is certainly vulnerable, Professor René Degni Segui refers to three cases in an article entitled: "Access to justice, and obstacles in the reports of the Port Louis Symposium on "The effectiveness of fundamental rights in countries of the Francophone Community" (Ed. Aupelf/Urf, p. 250)". Judges are supposed to be appointed on a permanent basis, but this is constantly disregarded. Professor Segui condemns the situation in these terms: "Frequent changes and transfers (of judges and those associated with the judiciary), often for political reasons, compromise the regular functioning of the administration of Justice. These frequent changes and transfers, increase the ills undermining the judicial service" (op.cit. p. 245).
The recent Judges' Association Congress, decried the fact that judges can be transferred at any moment, for reasons such as "the demands of service".
Also, the recent Côte d'Ivoire's Judges' Union Congress, criticised the widespread corruption existing among judges, which can be explained to a large degree by the fact that they are badly paid.
Attorney-Generals and their immediate assistants, plus members of the Attorney-General's Office, are judges recruited and trained in the same way as their colleagues who sit on the Bench. They can be transferred from the Attorney-General's Office to the Bench and vice-versa. The police force and the Gendarmerie assist the Attorney-General.
Judges in the Attorney-General's Office (e.g. Examining Magistrates) cannot act independently, but they are free to conduct their face-to-face examinations as they see fit.
The Attorney-General receives indictments and information, and then decides what steps have to be taken. Since he is legally subordinate to his hierarchical superiors, the selection of cases to be prosecuted, can sometimes depend on political or ethnic imperatives. Police officers are more easily exposed to political influences.
A suspect can initially be held for 48 hours, before being charged. This can be extended for a further 48 hours by the Attorney- General, but only once. During the preliminary investigations, preventative custody cannot exceed six months for misdemeanours and 18 months for crimes. Côte d'Ivoire's law does not provide for house arrest; consequently if this does take place, nothing can be done to prevent it, especially if it is carried out by the State.
Several guarantees exist to protect the accused during the preliminary investigations: an accused person must be informed of the charges; he has the right to choose a lawyer and the right to communicate freely with him; he also has the right to be present when searches take place. Unfortunately, a new law permits these to be done at any hour of day or night. At the court hearing, the accused has the right to be represented by a lawyer. In Assize Courts (criminal courts) a lawyer is appointed to represent the accused if he can't afford a lawyer himself. In practice, however, legal help is not very developed, and minors are not represented by a lawyer, contrary to the prescriptions of the law.
The credibility of the judiciary is indispensable for the building of a solid democracy. To ensure the equality of all before the law, its independence is an absolute necessity as the ultimate appeal against injustice.
In Côte d'Ivoire, as everywhere else, the judiciary has to struggle to show it is the guarantor of the law, by freeing itself from all political pressure or the power of money.
As Côte d'Ivoire continues along the road towards complete democracy and is presently passing through a transitional phase, the necessity of a Constitutional Court has become evident. The country already has a Constitutional Council, whose principal function is to keep a check on all that happens in the public domain, especially during a Referendum or presidential and parliamentary elections or when settling questions of jurisdiction.
It is to be hoped that hopes and promises eventually turn become established facts, and that the rule of law takes its rightful place.
END