by Paschal K. Dotchevi, Togo, 20 October 1997
THEME = JUSTICE
Articles 15 and 18 of the Constitution state: "No one can be arbitrarily arrested or detained...". "An accused person is presumed to be innocent until proven guilty, and this, only after due process of law, permitting every possible means for a defense".
However, what's happening now is quite different. Political analysts speak openly of a "crisis" or a "neglect" of justice in Togo. So, in spite of all the protection guaranteed by the law, and Togo's well-trained 107 judges and 74 lawyers, how can this drift away from the basic principles of justice be explained?
The Act of Parliament dealing specifically with the judiciary (Number 96-11 of 21 August 1996) explains how judges are to be recruited. A judge must have a Law Degree and then, after competitive examination, follow a two-year training course in the administration of justice, at the College for Senior Civil Servants. The Council of Judges (CSM) puts forward names for appointment to the judicial service, to the Justice Minister, who then makes the appointment.
When it comes to appointments within the judicial service, two different situations are envisaged. 1) Judges who sit on the Bench, are appointed by the Council of Ministers, acting on the advice of the CSM. 2) Those working in the Attorney-General's Office (e.g. Examining Magistrates) are appointed by the Council of Ministers acting on the advice of the Justice Minister. He is advised by the CSM as to the suitability of candidates.
Concerning judges' independence, in Articles 3 and 4, the 1996 Act looks at it in two ways: 1) "Judges who sit on the Bench cannot be moved. Consequently, they can never receive a new appointment, even a promotion, without their prior approval". 2) "When actually judging a case, they must remain free of all interference from their superiors".
However, those working in the Attorney-General's Office come "under the authority of their immediate superiors and the Minister of Justice". When it comes to preparing their indictments, they must follow their superiors' instructions. However, they can carry out their face-to-face interviews with suspects, as they see fit.
A senior judge in Togo's Judges' Association (SMT) says this: "Justice in Togo has fallen victim to political influence and the power of money. Indeed, in spite of all guarantees envisaged by the Law, what happens? The Executive goes over and above the law, and curbs the judiciary. At the time of writing, the SMT has strongly opposed the Justice Minister over certain appointments, and has appealed against some of the Justice Minister's actions. All in vain.
Article 18 of the 1996 Act stipulates that presiding judges, deputy-presiding judges, Public Prosecutors and Examining Magistrates attached to Third, Second and First Instance Courts, must have the appropriate qualifications and experience for these courts". With this in mind, the SMT has let it be known that the Courts of First Instance of Dapaong, Kara, Sokodé Atakpamé and Aneho, the country's main towns, have judges lacking the necessary qualifications and experience. Certain appointments which should only have been made after the CSM has given its advice, are in fact made, completely ignoring the CSM.
When it comes to "ordinary" cases such as theft or fraudulent misuse of funds, the Executive doesn't interfere much. But when the tinkle of coins is to be heard, then it's quite another matter. A judge in Lomé Appeals Court said: "Many judges give in to corruption. They are able to run around in large cars but we are on the same salary scale. Those who try to ignore any illegal advances made to them, are given "early retirement"".
A number of judges are "hand-picked" for certain cases. Charges relating to contempt of court or insulting the Head of State, receive "special treatment". A journalist who happens to fall foul of the Law on either of these two matters, will never "get away with it". A lawyer states: "Politics are part and parcel of the judicial system. Judges on the Bench should normally have everything going for them to do a good job, but they don't. Why not? You just have to look at the presiding judges and deputy-presiding judges in Lomé. They're all military personnel".
A senior official in the Ministry of Justice says: "We've only got 107 judges for more than four and a half million people. And to make matters worse, there are many lame-ducks and people greedy for money among this small number of judges. And unfortunately, they're the ones heading our country's judiciary".
A Professor of Law goes even further: "The Attorney-General is also head of the Criminal Investigation Department. He's the very one who decides which people are going to be prosecuted, and which judge will try the case. It's clear the Attorney-General has no real control over the CID. He may order a suspect to be released because there's no real proof, but the police just do as they please".
Another lawyer repeats the same allegations as above. He goes on to say: "Togo's Criminal Code states categorically that a person cannot be held in custody more than 48 hours, without the authorization of the Attorney-General, who has the authority to extend the period for a further 48 hours. But everyone knows there are people languishing in police cells for days on end, without anyone bothering about them.
Also, the Law clearly states that an accused person has the right to a lawyer during the preliminary inquiries and when he appears before the examining magistrate. The police say: "Obviously the law is the law. An accused person does have the right to have his lawyer present, but all we want to do is to ensure that we have our say in this matter, so that the law is not in fact, side- stepped, as is happening at the moment".
A member of the judiciary service who has arrived at the top of his profession (at least twenty years' service) gets a maximum monthly salary of 200,000 CFA francs. "And this paltry sum for working like a madman", says an Examining Magistrate. The 1996 Act was supposed to have dealt with such matters, but judges (judges on the Bench, Examining Magistrates etc) of all classes, are still waiting for the Council of Ministers to come to a decision as to how much they ought to be paid. A number of Ministers say salary claims are too high. But if we want to have a justice which is free and truly independent, then we've got to pay our judges a decent salary.
We're still waiting for our country's leaders to appreciate this very basic fact, and while waiting, its Mr and Mrs Ordinary Citizen who are bearing the brunt of having a far from perfect judicial system.
"The proof of the pudding is in the eating". We'll only have a truly impartial and free judicial system in Togo, when those responsible for the many political assassinations which have taken place in our country, are brought to justice. Togo will then have advanced along the road to democracy.
END