by Alain Agboton, Senegal, October 1997
THEME = JUSTICE
Senegal's legal texts guarantee the judiciary's independence vis- à-vis the Executive and the Legislative powers. That's clear. But the reality is otherwise.
A well-known author writing in the 19th century, said: "Freedom is an all-englobing word which encompasses humankind's intellect and morality, all the "dos and don'ts" which go towards making us what we are - individuals". The author, a judge, looks at "independence" from two points of view - global and personal.
Let's look at the judiciary's independence from a personal point of view. "Yes. We do have formal guarantees of independence in the exercise of our duties. And the legal texts expressing this are absolutely marvellous. But that's as far as it goes. In reality, justice is being "starved into submission"", says one judge.
Judges are badly paid. They get a monthly salary of about 250,000 CFA francs - and for this pittance they have to put up with a lot of pressure from outside sources. They can't take another paid job, except some kind of scientific work, and then they need special permission.
Competence and length of service determines a judge's hope for promotion. Recommendations for appointment within the judiciary, made by "someone highly placed," are very rarely turned down. The main problem is, many judges are not permanent officeholders. They're only in the job on a temporary basis. Which makes the whole business of becoming a judge rather precarious - and of getting justice, a risky concern.
Jacques Baudin is Justice Minister. He realizes that because salaries are so low, it's very hard for the judges to be really free when they have to deal with people who've got money, and who are prepared to bribe the judge. Senegal's judges must not be placed in a position that they fall victim to attempts to suborn them. The saying goes: "A hungry man is not really a free man", and how true this is! A judge must have a clear conscience in his work, a real spirit of sacrifice, extraordinary courage, and an acute sense of duty.
Senegal's Constitution guarantees the judges' independence, but how does this work out in practice? There are some judges who "believe in it, live it out and follow it to the full" - but not all are of the same mind.
It is well known that the judges are under enormous pressure. When for example, millions of francs are dangled in front of a judge who has to maintain a certain "position" in the community; who has a certain "reputation" to keep; a certain "reliability" to up-hold; when he needs to buy petrol for his car or needs money to "make ends meet", one can very well understand the temptation to corruption facing him.
The Justice Minister is himself a former lawyer and judge. He says that the judiciary is still free, because it does not have to put up with any kind of untimely outside influence. But everyone says that the judges' financial situation has to improve in order to reduce the pressures on them.
But why does the judiciary have to be free? What's this freedom for?
A lawyer says this: "Democracy is founded upon justice". President Abdou Diouf is of the same opinion when he says: "The Executive ensures that democracy is maintained. But without justice, there is no democracy. Justice acts as a referee, and safeguards the necessary balances in society".
The lawyer goes on to say: "Justice is the basis and the constituent factor of democracy. It guarantees good governance".
In Senegal, the judiciary consists in the Constitutional Council, the State Council, the High Court, the Supreme Court, the courts and the tribunals. Their specific role is to regulate the functions of the Executive and the Legislative and keeps a watching brief on the relations of citizens among themselves. The Constitutional Council is made up of nine judges (e.g. Supreme Court judges) who check on the constitutionality of laws. The State Council ensures that there is no abuse of power by the administration.
Judges are members of both the Constitutional Court and the State Council, as well as the Supreme Court. They are relatively well paid. Besides payment in kind, they receive a monthly salary of about 500,000 CFA francs. This is quite a significant salary when compared to the average citizen whose income is about 40,000 CFA francs per month.
There are two categories of judges: those who sit on the Bench, and those who serve in the Attorney-General's Office. They are named by the Head of State, their ethnic origin doesn't enter into their appointment, and they cannot be moved. There are about 220 judges, which means there's certainly not enough of them. For this very reason, the Head of State, in spite of financial difficulties, recently decided to recruit about a hundred more judges between now and the year 2000.
Where are the judges? About 90% are in the Dakar area (90% of Senegal's economic activity is here). But some judges are now being sent to the north, where a new economic boom is taking place with the construction of dams on the River Senegal.
Judges serving in The Attorney-General's Office represent the public's interests in the cause of justice. They are in permanent contact with the police, the Gendarmerie, Customs and Excise, the government and the plaintiff. There are also judges who serve as Examining Magistrates.
Judges "on the Bench" are of two kinds. Those who actually "judge the cases" and those who act as prosecuting counsel.
Senegal has about 300 lawyers. Those who are actually practising number about 270, and the remainder are in training. (These are usually not permitted to take cases except in penal cases to defend the accused). It goes without saying that there's not nearly enough lawyers and like the judges, most lawyers work in Dakar. (240 of them!)
Can a lawyer get by on what he earns? A lot depends on the number of cases he takes and their importance; his Chambers (legal staff); his specialisation; other determining factors.
And what about the Defence? One would like to think that an accused person's rights are generally guaranteed and respected. A recent measure taken in this direction is that when an accused person is being questioned, he has the right to have his lawyer present. (Indeed, he is entitled to have his lawyer present at every step in the proceedings). Generally speaking, there's no problem in the police stations and if anything does happen there (e.g. torture), a detainee can report what has happened to the appropriate authorities. After a suspect has been held for 72 hours, he can be examined medically by a doctor. Recently, there's been cases of police officers having been prosecuted for torturing prisoners.
To conclude this section, it should be noted that people are not usually arrested in Senegal without due cause.
The administration of justice in Senegal is said to be far too slow (as in other countries as well). In fact, justice is administered at two speeds. As one lawyer says: "Slow for the ordinary citizen, but much faster for someone with a certain amount of influence. But when it's a question of ensuring the public peace, then the judges, guardians of the public peace, do get a move on".
This kind of problem could be ironed out with the establishment of local court houses for trying small local affairs. This project may see the light of day with the help of funding from the United Nations. Properly trained judges would be appointed to sit on the Bench in these courts, and this would go a long way to clearing up the backlog of cases still waiting to be heard. At the moment, just one judge prepares the cases, and he can be faced with up to 300 cases to be looked into each day.
Both judges and lawyers have almost the same training. Both need a Masters Degree in Law. Candidates for becoming a judge, have to follow a two-year training course at the National School of Administration (ENAM) - Legal department. If successful in the final examinations, they are then eligible for recruitment by the State as judges.
Judges must keep up with recent developments in their profession, hence the necessity of updating courses. They know full well they cannot afford to remain ignorant of what is happening within their country and in its relations with an ever-changing world.
Judges don't have the right to belong to a Trade Union. When they want to air their grievances they have to pass through their own association. They can't be politically involved, nor comment on the government's affairs, nor meddle with the authorities' way of running things. In other words, judges mind their own business and get on with the job in hand. They're also obliged to keep matters cool, even if they're attacked personally.
The judiciary's independence wasn't born yesterday. Honoré de Balzac, wrote that no human power, no king, no Minister of Justice, neither the Prime Minister can meddle with the power of justice. You can't stop justice, neither can you command it into being. Justice is a matter of conscience and obedience to the law. When people can't trust justice anymore, it's the beginning of the end for society.
END