by Aliou Bâ & Sidi Ould Sbaï, Mauritania, October 1997
THEME = JUSTICE
Has Mauritania's judiciary the necessary means to fulfil its mission? Has the average Mauritanian judge enough influence to ensure civil liberties and individual and community rights? Which legal texts govern Mauritania's judicial system? A look back at the country's legal history, clearly shows how today's judicial system has gradually developed from past judicial law.
There were three important reforms of the judiciary in Mauritania: in 1960, 1980 and January 1993.
The first reform, (Law Number 61.123 of 23 June 1961) took place shortly after independence. It was a combining of Mauritania's lengthy pre-colonial and colonial heritage. In other words, an amalgamation of the Cadi judicial law (Muslim judicial law), and the judicial law introduced by the French colonial power just before independence. The country, therefore, had two different types of legal jurisdiction: Islamic jurisprudence and Latin-Germanic jurisprudence coming from Europe.
Civil and commercial matters fell within the competence of Muslim legal jurisdiction, but from a practical point of view, this competence was only symbolic and conventional. In fact (see Article 1 of the Code of Civil, Commercial and Administrative Procedures (CPCCA), modern law took precedence.
Modern law encompassed litigation concerning the government, and matters relating to technical skills and modern life. For example, in the commercial sector, two criteria had to be kept in mind - the form such and such an activity took (if the business had been established as a company and if the traders were registered with the national register of commerce), and what were their intentions in setting up the business. Even though such matters should have been the responsibility of Muslim law, parties were able to opt for the application of modern law, if they so wished.
By and large, parties in litigation preferred the competence of modern legislation, and so this gradually extended into Mauritania's legal system. Thus, we find, such French legal institutions as: Courts of First Instance, Industrial Tribunals, and Criminal Courts, whose decisions were final, while at the same time recognising the principle and application of a dual system of justice - Muslim and modern law.
A Court of Appeal was created to include two Chambers: one dealing with modern law and competent to hear appeals against sentences handed down by modern law; the other, a Muslim Appeals' Court, competent to hear appeals handed down by Muslim law.
It is important to note that Mauritania's legal system did not make any distinction between administrative and judicial jurisdictions. The Supreme Court was a combination of a State Council and a Supreme Court of Appeal.
Not everyone was happy with these reforms. For some, the practice of sharing competence between two jurisdictions (Muslim and modern) was disorderly and empiric. Not much serious thought had been given to it. For others, the official division between Muslim law and modern law was not clear at all. They pointed out that Muslim jurisprudence was an archaic system as compared to the so-called modern jurisprudence.
The authorities hastened to work out a second legal reform trying to make the country's legal system conform with "Sharia Law" (The body of detailed Islamic Law).
This reform (Decree Number 83144 of 23 June 1983 on the Reorganisation of Justice, put an end to the ambivalent situation. Article One of the Decree read: "Within the territory of the Islamic Republic of Mauritania, justice is rendered according to the provisions of the present decree, by department and regional courts, by industrial courts, by criminal courts, by one Special Court of Justice and by one Supreme Appeals Court". The Decree abolished the distinction between Muslim and modern law jurisdictions, benefitting Muslim law as far as Article 1 of Decree Number 833164 of 9 July 1987, dealing with the setting up of the CPCCA was concerned. This particular Article stated that the appropriate judges had the power to deal with all cases, and this is done following Muslim Law, in accordance with the country's present legal code.
This reference to Muslim law meant that every Muslim was bound to follow the tenets of this Article, but at that the same time, the door was opened to arbitrary and even uncertain legal practices. How come?
Some judges believed that Article 1 empowered them to discard all legal and regulating provisions which did not correspond to Muslim doctrine. However, Professor Mohamed Mahmoud Ould Mouhamed Salah, a Mauritanian lawyer, chairing a meeting of the Association for Civic Initiative (AIC), expressed his concerns on this matter. He first of all commented on the importance of Muslim teaching. "But", he went on, "in the framework of an organised State, a moral or religious rule can only become a rule of law if it has been worked out by those qualified to do so, and judges are compelled to abide by all laws in force as long as they have not been abrogated...".
The new legal reform, dated 21 January 1993, resulted from the establishment of democracy in Mauritania. The reform abolished the Special Court of Justice - considered to be incompatible with a democratic regime - and established other legal institutions essential to Mauritania's new political orientations: the Constitutional Council, the High Court of Justice and the State Audit Office. But that was all; it did not look into the training of judges, a problem that remains unsolved.
Education and training are of prime importance for members of the judiciary. A judge must be able to understand all aspects of the case he is hearing. As a specialist in legal matters, he must be capable of giving simple, realistic, precise and clear judgements.
The kind of training received by judges varies. Some have been trained at the Higher Institute For Religious and Islamic Studies (ISERI), others have attended courses elsewhere.
To become a judge, candidates need a Masters Degree in Law or Sharia studies, a Bachelor of Arts (B.A.) Degree in law or in Sharia studies (4 years) or an equivalent university diploma, and, having passed an entrance examination, they must have followed and been successful in the two-year course given at the National Public Services School (ENA) - Legal Section, or at an equivalent institution.
It should be noted that the ENA course is not considered to be a legal training programme of much significance; it is frequently taken to be a formality. The appropriate authorities would be well- advised to introduce a proper training course for judges, preparing them for what is, after all, a demanding service. The Association for Civic Initiative puts it very well: "There can be no justice if those who are supposed to administer the law are not themselves professional in the administration of justice".
In the exercise of his profession, a judge needs to be totally independent from anything or anyone likely to affect his impartiality. In addition to his own personal quality, a judge's status needs to be protected.
Mauritania's Constitution (20 July 1991) clearly lays down the principle of a judiciary, independent from the Executive. In fact, this independence is a myth. Why?
When it comes to appointments, a judge is appointed by the Justice Minister and the Higher Council of Judges, who are themselves appointed either directly or indirectly by the Executive. Also, there's a seven-year probation period and during this time, the Executive has a great deal to say about what happens to the candidate.
The Justice Minister has enormous authority over judges, either directly, because he appoints Associate Judges in certain courts and even full judges in an interim capacity, or indirectly, because his voice carries great authority in the Higher Council of Judges. In the long run, a judge gets promoted because the powers-that-be want it! Obviously judges feel psychologically obligated towards the Justice Minister, so it's understandable that sometimes, they're tempted to wait for his "instructions" before taking a decision.
Mauritanian law does not provide for the immovability of judges on the Bench. Legal systems in other countries do offer this guarantee, which protects judges from government pressure.
The State does not always have the necessary means to ensure that justice proceeds smoothly and fairly along well-ordered structures. Indeed, sometimes a judge may be presented with documents and evidence which he knows has been "doctored", or records may be incomplete. All of which does nothing to make his task easier.
The weight of social pressures can influence a judge in the course of his duties. A judge in Mauritania is closely tied to his social circle. He lives and works in a country where the individual citizen is still bound to his family, tribal, ethnic and regional groups. The State makes good use of the "tribal" and "regionalism" factors. This means a judge is unlikely to break away from his social background which gives him support (for possible promotion) and protection (against possible sanctions). The end result of all this? The basic guarantee for the good administration of justice (the judge's neutrality) - is breaking down.
Those associated with the administration of justice, are subject to the same constraints as judges. This is most unfortunate as these people are as important as the judges. They have a part to play in the whole administration of justice, starting with the introduction of the case before the authorities, and remaining with the case as it proceeds up to the highest court in the land, when guilt or acquittal is finally pronounced.
Mauritania has approximately 210 judges for two million inhabitants. There are 250 lawyers who face an extremely difficult situation. The level of a country's justice depends on the competence of its lawyers. A number of factors all coming together, means that lawyers are unable to play a genuine role in the administration of justice.
The State obstructs, blocks and interferes with the lawyers' work. The National Lawyers Association has close links with the government, but is riddled with various divisions and trends. Some lawyers then decided to set up a parallel legal association, The Union of Lawyers of Mauritania (SAM). It should be remembered, that ever since the introduction of the Certificate of Competence for the Exercise of the Profession of Lawyer (CAPA) in 1992, the Institute of Higher Professional Studies (ISEP) is controlling the admission of candidates to the profession. This is done by a selection process.
As regards others associated with the administration of justice: Barristers, Clerks of Court, Bailiffs, legal experts, there's nothing foreseen for them in Mauritania's system of justice. That is to say, not until July 1997, when, giving in to pressures from donor organisations such as the World Bank and the International Monetary Fund, Parliament introduced legislation governing these professions.
By way of conclusion, one may note that after a great number of hesitations, Parliament has at long last, provided Mauritania with what can best be described as a "legal arsenal", likely to guarantee the judiciary's independence. This legislation is way ahead of the country's social and political realities. But at least we have the basics in place, so that one day we will have a judicial system able to cope with the realities of present-day Mauritania - provided of course, the authorities are concurring!
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