Senegal

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Background

The country of Senegal is comprised of 14 regions with the capital city called Dakar.[1] Senegal was once a French colony, and gained its independence on April 4, 1960. Senegal previously tried political unions with Mali in 1959 and Gambia in 1982, but neither of these unions lasted. Currently Senegal is officially a republic. It follows a type of new regime which was crafted by African States since the beginning of the 60s, which regime is characterized by presidential monocentrism[2].

For 40 years (since 1960), the Socialist Party was Senegal's principle political party, but in 2000, the leader of the Senegalese Democratic Party, Abdoulaye Wade, was elected president. Wade has been in the presidential position since 2000, winning the 2007 presidential elections as well.

Though French is the country's official language, there are several other languages spoken including Wolof, Pulaar, Serer, Diola, Mandingo, and Soninke.[3] Moreover, in terms of religious belief, Senegal is 95% Muslim, 4% Christian, ad 1% traditional religions.[4]

Type of System

The judicial system in Senegal is based on the French civil code. Under Article 88 of the Constitution, the judicial branch consists of the Conseil Constitutionnel, the Conseil d’Etat, the Cour de Cassation, the Cour des Comptes and the Courts and Tribunals.[5] The Conseil Constitutionnel has jurisdiction over the legality of laws passed by parliament. It is comprised of five judges, all of whom are appointed by the president. The Cour de Cassation is the highest court for civil and criminal matters while the Conseil d'Etat is the highest court for administrative law matters.[6] The Cour de Comptes has jurisdiction over checking public accounts.[7]

It should be noted that though Islamic and traditional laws are generally not officially incorporated into the Senegalese judicial system, principles from such law are still strongly influential.

Under the Code de Procedure Penale (Code of Criminal Procedure), article 218, the Cour d'Assises (criminal trial court) has jurisdiction to hear criminal law cases.[8]

Sources of Defendant's Rights

The Defendants’ rights are primarily found in the Constitution of Senegal, which was adopted by constitutional referenda on 7th January, 2001. It is the fourth constitution of the country, after those of 1959, 1960 and 1963. Following the example of most Franco-African countries, the Constitution of Senegal is heavily based on the 1958 French Constitution, considered as being the “Mother Constitution”[9].

The document grants few rights related to judicial proceedings, including the right of equality before the law, right to life (as defined by law) and right to freedom. The Constitution also prohibits ex post facto laws and protects from arbitrary search and seizure.

The Code de procedure pénale (LOI n° 2008-50 du 23 septembre 2008 modifiant le Code de Procédure pénale) is also a significant source of the defendants’s rights in Senegal. Article 257 of the Code de Procedure Penale provides that upon the start of the trial at the cour d'assises, the defendant must be represented by counsel. If the defendant does not have counsel of his own, the state will assign him an attorney. Article 260 provides a period of five days in which the attorney for the defendant may prepare before arguments, once the president of the cour d'assises has interviewed the defendant (i.e. verified the defendant's identity).

Pre-Trial Phase

Arrest, Search and Seizure

The Senegalese Code of Penal Procedure provides that in cases of crime flagrant, i.e. a crime that is being committed or one that has just been committed, the Officer of Judiciary Police informs immediately the Republic’s Prosecutor and visits the crime scene in order to report his findings. The Officer of Judiciary Police seizes any arm or instrument that was used or meant to be used for the commission of the crime, and preserves any clue that he may find in sitiu[10]. Any seizure is performed in the presence of the suspects and the owner of the place where the crime was committed[11].

Delay of detention in custody (garde à vue) depends on the gravity of the crime. It shall not exceed 24 hours where the objective is to identify a person and collect information[12]. In case where there are grave and concordant clues against a person, detention cannot exceed 48 hours (art. 55). Such delay may be extended for another 48 hours by the Republic’s Prosecutor. The detainee has the right to be informed of the reasons of such extension and has the right to counsel, failing which, nullity of the minute is declared[13]. Any irregularity in the procedure may entail stay of procedures[14]. The initial interview with Counsel may not exceed 30 minutes [15]. When the Republic’s Prosecutor is informed of abuses committed by the Judiciary Police against persons in garde à vue, he informs the General Prosecutor, who, in turn, instructs the Accusation Chamber[16]. In practice, such delays are not respected and the situation is alarming in a country where habeas corpus is inexistent and where no mechanisms exist to contest the legality of such detentions [17].

The same rights are granted at preliminary examination [18], as well as during search and seizures[19]. In the latter case, the Judge of Instruction has the obligation to ensure the respect of professional secret and the rights of the defense, as described above.

At first hearing, and before pressing any charge, the suspect is informed of his right to counsel. In criminal cases before the Court of Assises, a defense attorney is mandatory[20]. However, if counsel does not show up within 24 hours, the Judge is free to charge the suspect. At first hearing, the Judge of Instruction confirms the identity of the suspect, informs him of the facts for which he is suspected and advises him of his right to remain silent[21]. The above rights apply unless there is a case of emergency.

An arrest warrant is issued by the Judge of Instruction in order to arrest the accused and bring him to the detention center [22].


Pre-Trial Detention

Pre-trial detention is for an undetermined period for criminal matters. For offences, pre-trial detention shall not exceed 6 months [23]. Pre-trial detention is deducted from the sentence[24]. The average pre-trial detention between the indictment and judgment is three years, although some detainees have been in jail for over 7 years without having been tried [25].


Court Procedures

The nature of the trial is inquisitorial. The Court of Assises includes a jury. The President is the master of the procedure and may order any measures to find the truth. As such, he may exclude any element which might offend the dignity of the trial[26]. Cross-examination is not part of the Senegalese procedure. The prosecutor may examine the accused and the witnesses. The accused may examine the witnesses and co-accused through the President[27]. A party may request expert witnesses to testify on a technical matter[28].


The accused has the right of a fair trial. This right is ensured by the separation of the functions of prosecution and examination.



Sentence

In Senegal, sentences for criminal conducts may include detention and forced labour. Death penalty was abolished on 10th December, 2004 [29]. In cases of forced labour, men are sentenced to the hardest public interest work while women are sentenced to labour inside the jail [30]. Any recidivist convicted twice for a crime punishable by an infamant sentence (civil degradation, art 8) or inflictive sentence (forced labour or criminal detention, art. 7 Code penal) is liable to serve the double of the original sentence[31]. Judgment can be made in abstentia [32].


Appeal

The Court of Cassassion has jurisdiction over excess of power of executive authorities, incompetence, non-respect of the law or custom.


A party may seek revision of a judgment for homicide on the basis of new evidence that was not available at the time of trial, or when another individual was condemned for the same crime and that both judgments are not compatibles [33] .


Post Conviction Facts/Issues

The penitentiary population is 7 086 detainees, among which 6 692 are men; 250 women and 144 minors. 4 149 are convicted and 2 937 are in pre-trial detention. 10% are foreigners[34]. The occupancy rate is 97.2%.

References

  1. https://www.cia.gov/library/publications/the-world-factbook/geos/sg.html
  2. BBC Afrique, Ismaël Madior Fall, La Consitution sénégalaise (online) http://www.bbc.co.uk/french/specials/1744_senegalscrutin/page2.shtml
  3. http://www.state.gov/r/pa/ei/bgn/2862.htm
  4. http://www.state.gov/r/pa/ei/bgn/2862.htm
  5. http://www.ialsnet.org/meetings/enriching/camara.pdf
  6. http://www.ialsnet.org/meetings/enriching/camara.pdf
  7. http://www.nyulawglobal.org/Globalex/SENEGAL.htm
  8. http://www.justice.gouv.sn/droitp/CPP.PDF
  9. BBC Afrique, Ismaël Madior Fall, Consitution sénégalaise (online)http://www.bbc.co.uk/french/specials/1744_senegalscrutin/page2.shtml,
  10. Article 46, Code of Penal Procedure("CPP")online: http://www.justice.gouv.sn/droitp/CPP.PDF
  11. Article 49 CPP
  12. Article 55 CPP
  13. Article 55 CPP
  14. United Nations Human Rights, Rapport du groupe de travail sur la détention arbitraire, 5th February, 2010, online: http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-30-Add3_fr.pdf at para 39
  15. Article 55 bis, CPP
  16. Article 59 CPP
  17. United NAtions Human RIghts, Rapport du groupe de travail sur la détention arbitraire, 5th February, 2010, online:http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-30-Add3_fr.pdf at para. 62
  18. Articles 67-69
  19. Article 85 CPP
  20. Article 102, CPP
  21. Article 101, CPP
  22. Article 114 CPP
  23. Article 127 bis
  24. Article 22 Code Pénal
  25. United Nations Human Rights, Rapport de Travail sur la détention arbitraire, 5th February, 2010, online http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-30-Add3_fr.pdf para 63)
  26. Article 290, CPP
  27. Article 293, CPP
  28. Article 149 CPP
  29. Loi n° 2004-38 du 28 Décembre 2004 portant abolition de la peine de mort, online: http://www.jo.gouv.sn/spip.php?article2690
  30. Article 19 Code Pénal
  31. Article 42 Code Pénal
  32. Article 23 Code Pénal, and Articles 253 and 356 CPP
  33. Article 83, Loi organique portant sur la création de la Cour suprême
  34. United Nations Human Rights, Rapport du Groupe de Travail sur la détention abusive, 5th February, 2010, online: http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-30-Add3_fr.pdf at para 49


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