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An overview of the republic of senegal

Introduction Senegal is a relatively decentralised [1] civil law country with three branches of government, the executive, legislature and judiciary, which share in the state powers.

According to Senegalese Constitution, [2] which is the supreme law of the land, the country is a liberal democratic republic.

The President of the Republic is the head of state, and the Prime Minister is the head of government. The Government is accountable to both the President and the National Assembly, [6] and both institutions are empowered to dismiss the Prime Minister.

Ministers are appointed by the Prime Minister in consultation with the President of the Republic. Members of the High Court of Justice, which has the power to prosecute top officials, [7] including the President, are appointed solely by the National Assembly. Judicial power is vested in several different institutions: Each of these superior courts is at the top of the hierarchy of courts for their specified jurisdictions.

The appointment of all judges is done by the President of the Republic on the recommendation of the High Council of Magistrature, [8] after the nomination by the minister an overview of the republic of senegal justice. Criminal offences and procedure are contained in the Criminal Code and the Criminal Code of Procedure. Presumption of innocence, public trials and right to a legal counsel are guaranteed for criminal proceedings. For family inheritance and other related cases, Muslims are given a choice between customary law and civil law.

Despite relatively recent legislative reforms dealing primarily with the family code, equality between men and women is yet to be solidified in Senegal. A bicameral parliament makes up the legislature, which comprises the National Assembly of 150 members as the lower house, and the Senate as the upper house with 100 members. In situ research at domestic courts is a primary source for both collecting instruments and tracing cases.

For accessing codes civil, criminalpublic contracts, mining, and othersdecrees, and other statutes, the best source is the official website of the Government of Senegal. Dakar and Saint Louis Universities rather host Law Faculties, which differ in many instances from what is seen in common law countries.

Both schools are located in Dakar. In the absence of an official law journal in Senegal, law reflections are published through various revues or bulletins by schools referred to above, as well as other human rights and civil society organisations. Unfortunately, no online access to such publications is available, as they can only be obtained at local bookshops in situ. Online, RevueBanque, [17] an e-shop with the ability to access or scan legal documents, proposes existing and new codes for publication.

Finally, obtaining relevant and updated information on Francophone Africa in the legal and judicial fields proves to be easiest and most effective when done from judicial networks.

While providing an overview of the legal system of Senegal, this paper will emphasize norms and institutions which are in place that enable Senegal to domesticate and apply international law, especially human rights law.

Human Rights Law in Senegal: Institutions and Norms 2. The Preamble also proclaims the right of everyone to participate in public affairs and have access to public services. Both individual and group rights are an overview of the republic of senegal. Particularly, Article 8 sets out a number of rights that are usually contained in a Bill of Rights. The Republic of Senegal guarantees to all citizens their individual fundamental freedoms, economic and social rights, as well as group rights.

These freedoms and rights are: These freedoms and rights may be exercised under the conditions provided by law. Under Title II, only one right is specifically guaranteed in the range of economic, social and cultural rights: Article 15 right to property subject to public necessity expropriation but prior due compensation, gender equality in possession and ownership of land.

Other rights in this category are provided under subsequent sections in Title II: The following state organs have been established and are involved in the promotion and protection of human rights: Established in 2004 [26] and led by a woman lawyer and government minster, [27] the Commission includes a Guichet des droits de l'homme a board in charge of receiving complaints and making suggestions to the President of the Republic on subsequent responses.

The Senegalese Human Rights Committee is the state human rights institution. Senegal, discussed under sub-section 1.

  • The answer to this key question goes back to the monism theory itself;
  • They must be given the same reception and enforcement as domestic judgments because the law they adjudicate has become a municipal law;
  • The present report being a prospective study on forthcoming decisions of the African Court, an analysis of existing similar initiatives is relevant for comparative case studies;
  • Such pronouncement is surprising at least from two standpoints;
  • It is worth noting that the Council has no proprio mutu seizure;
  • Consequently, they will need to be revisited and adapted if not newly designed for Senegal to provide for the specific framework conducive to its commitments under both the African Charter and the African Court Protocol.

Further, it has competence to settle different conflicts between public administration and private corporations. Monism is also known as the doctrine of automatic incorporation.

  1. They must be given the same reception and enforcement as domestic judgments because the law they adjudicate has become a municipal law.
  2. Such pronouncement is surprising at least from two standpoints. The question is discussed further on in this paper.
  3. However, in some cases, rather than enacting a law authorizing the President of the Republic to ratify an agreement, the Parliament may directly ratify the agreement in question through the adoption of a ratification act.
  4. The executive authority Cabinet ; The judiciary body in charge of monitoring the constitutionality of laws ; and The legislative authority Parliament. As the law stands, there is no specific procedure or competent body for the enforcement of these particular judgments.

Moreover, in case of conflicts, municipal law takes a subordinate position. Article 97 of the Constitution clears this equivoque by providing that where an international agreement has a provision contrary to the Constitution, the authorization of ratification or approval may only intervene after the amendment of the Constitution.

The effect of this is that a convention can become part of domestic law through monist direct incorporation or even dualist legislative enactment without being of any remedial use for various administrative, legal or judicial technicalities.

Bearing in mind the vagueness and complexity of the language in which international human rights instruments are generally drafted, these conventions might be self executing or not, wholly or only in some of their provisions.

It will all depend on the domestic legal order. For instance, it is foreseen that the ICESCR will easily be self executing in South Africa because municipal law already provides for similar or same standard rights.

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In any case, there are three principal relevant factors as to whether a treaty is self executing or not: Referring to these factors, a priori, the African Court Protocol is arguably self executing in Senegal. First, the Protocol is a procedural instrument to the African Charter, both of which Senegal ratified. State parties to the Protocol recognise the establishment of the Court as a means of attaining the objectives of the Charter.

Second, the purpose of the Protocol is to create an individual right to remedies as reads its Article 27 1. In this regard, by an overview of the republic of senegal both the Charter and the Protocol, Senegal committed itself to apply these conventions, including the implementation clauses provided therein.

More specifically, Senegal must not only comply with the judgments, but must also guarantee their execution according to Article 30 of the Protocol. All of this aside, the self executing nature of the African Court Protocol argued above will not a posteriori stand in front of actual questions related to the implementation of the African Court judgments in Senegal. The intrinsic nature of an international convention does not make it precise and comprehensive enough to deal with technicalities related to the various domestic realities of states parties.

Demonstrably, this is not the case to date. Indeed, a framework exists in Senegal: Consequently, they will need to be revisited and adapted if not newly designed for Senegal to provide for the specific framework conducive to its commitments under both the African Charter and the African Court Protocol.

To sum up, the African Court Protocol is yet to be effectively domesticated in Senegal.

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The question is discussed further on in this paper. For now, regarding the recognition of treaty bodies at the domestic level, once international agreements including human rights treaties are binding upon Senegal and receive direct application in the municipal order, relevant treaty bodies should consequently be recognised by the Constitution, as well as municipal, administrative, and judicial authorities.

In this regard, Article 34 6 of the Protocol provides that the African Court shall not receive any petition under Article 5 3 — that is, individual complaints — involving a state party which has not made a declaration accepting the competence of the Court. Senegal is yet to make such declaration. There is no express mention of the recognition of international customary law in the Senegalese Constitution.

Under the Preamble, Senegal adheres to the UDHR and the international instruments adopted by the United Nations, some provisions of which have gained universal normative value. Review of the agreement After the signing of an Agreement by a duly mandated representative of the state, it is up to the Minister in charge of Foreign Affairs to make a referral report in a document known as a statement of reasons, to prepare a draft bill authorizing the President of the Republic to ratify it and a draft decree ordering its publication, and to forward all of the above in the form of a single document, in several dozens of copies, to the Secretary General of the government or the corresponding authority.

This authority then submits the document to the Cabinet and, after its adoption by the Cabinet, to the monitoring body in charge of verifying the constitutionality of legislation. In the latter case, the text of the agreement is sent to Parliament, which reviews and adopts a law authorizing the President of the Republic to ratify the agreement. The executive authority Cabinet ; The judiciary body in charge of monitoring the constitutionality of laws ; and The legislative authority Parliament.

Ratification The act whereby Parliament authorizes the President of the Republic to ratify an agreement is communicated to the Minister in charge of Foreign Affairs, who, on that basis, prepares letters of ratification and submits them to the President of the Republic for signature. The letters are produced in two copies, and after they are signed, they are sent back to the Ministry in charge of Foreign Affairs, which then sends one copy to the other party in the case of a bilateral agreement or to the depositary in the case of a multilateral agreement.

The Ministry keeps the second copy. However, in some cases, rather than enacting a law authorizing the President of the Republic an overview of the republic of senegal ratify an agreement, the Parliament may directly ratify the agreement in question through the adoption of a ratification act.

As described above, once they are ratified and published in the official gazette, international treaties take precedent over all laws in Senegal. By virtue of this direct incorporation under monist systems, international treaties become law in the municipal order.

  • In situ research at domestic courts is a primary source for both collecting instruments and tracing cases;
  • Referring to these factors, a priori, the African Court Protocol is arguably self executing in Senegal;
  • These freedoms and rights may be exercised under the conditions provided by law;
  • This means that litigants will have to seek enforcement ordinance with an ordinary judge, who might refuse it;
  • In this case, Mr.

Yet, an overview of the republic of senegal stressed in sub-section 2. Indeed, international conventions need to fit within a certain legal, administrative and financial domestic framework in order to become directly applicable as any other municipal law.

Moreover, direct applicability may be hampered by the lack of judicial activism, which enables purposive and progressive interpretation of international treaties when adjudicating human rights matters. As a matter of fact, monist countries such as Senegal [56] and Benin [57] have refused to apply IHRL after ratification.

Surprisingly, despite the absence of implementation measures or even prior to ratification, judges have directly or indirectly applied IHRL — namely the African Charter — to adjudicate cases in Botswana, [58] Ghana, [59] and Kenya. In Senegal, domestication has been done through enactment of new legislation, or repealing or amendment of inconsistent legislation as discussed below.

The Senegalese government was only in a few cases required to implement the decisions of human rights treaty bodies. The case goes back to 1982, when the victim, a Senegalese citizen, was arrested and detained by the government for his involvement in an alleged coup in Gambia. Ultimately, his case was never heard as he benefited from an amnesty in 1988. In May 2001, the victim was still to receive a plot of land, and filed a complaint with the Senegalese Human Rights Committee.

In its response, the Committee in 2001 had requested the State Minister in Charge of Presidential Affairs to provide all necessary information on the case. Domesticated Treaties and Relevant Legislation Although Senegal has a strong record of ratification of international human rights treaties, implementing of such legislation is very poor especially as regards economic, social and cultural rights.

As regards civil and political rights, Senegal has adopted a legislation incorporating the conventional incrimination of torture in its Criminal Code, [64] in accordance with Article 4 of CAT.

Although no specific judicial body is constitutionally vested with adjudicating human rights matters in Senegal, the Constitutional Council has decided interesting cases. On this point, cases decided by Senegalese courts are quasi-inexistent. But a referral is not a judgment, the enforcement of which may require a specific procedure for reception and have financial implications.

Considering that application of IHRL may cover both adjudication and reliance as a cause of action, the Sega Seck Fall case [72] is also deemed of interest. In this case, Mr. The Supreme Court rejected this claim on the ground that there was no proof of publication of the convention. Such pronouncement is surprising at least from two standpoints.

  • Particularly, Article 8 sets out a number of rights that are usually contained in a Bill of Rights;
  • Thus, only national judgments are concerned, such as, for example, a judgment from a Nigerian court seeking enforcement in Senegal as exemplified above;
  • Indeed, a framework exists in Senegal:

Eventually, Senegal put an end to this contradiction by adopting its Code of civil and commercial obligations. Procedure for the Domestic Enforcement of Foreign Judgments The existing procedure is the exequatur applicable to foreign judgments seeking enforcement in Senegal. In practice, the considered dispute often involves only private persons. It will therefore be almost impossible to have Senegal condemned by a judgment from a Nigerian court, which would lack both competence and legal normative ground to do so.