The Republic of Cote dIvoire Judiciary Background n

The Republic of Cote d’Ivoire Judiciary

Background n n n n Cote d’Ivoire, not Ivory Coast French colony, 1893 -1960 Independence gained in 1960 Over 60 ethnic groups (religions include Muslim, Christian, Tribal) Military Coup d’etat in 1999 New Constitution ratified in 2000 and formed the Second Republic; Constitution is based on French civil law system and customary law Another coup, then civil war 2002 -2003 between the government and Northern rebels (“End of War, ” but slow reintegration) About 50% of the nation (as of 2004) is considered “New Forces” territory where no national courts function

Presentation Please note: 1) this presentation is guided by the distinction between judicial independence “in principle” v. “in practice” 2) Judiciary in Cote d’Ivoire has several parallels to the judiciary in France (but there are differences) n

Basic Judicial Structure n n n Bifurcated: Constitutional Council- handles constitutional issues “Three Supreme Jurisdictions” (a. k. a. 3 chambers of the Supreme Court) a) Court of Cassation- final court for civil/criminal cases which come from the Court of Appeals, and decide questions of law and not fact b) Revenue Court- cases dealing with state finances ($$$) c) Council of State- highest court for administrative acts *the cases for all of the chambers come from their respective lower court systems (“tribunaux”)

Basic Judicial Structure (Continued) Other facets of Judiciary: 1) Highest Judiciary Council- 1) nominates judges for appointment for 3 “supreme jurisdictions” and lower court judges (President officially appoints), 2) handles evaluations, promotions, transfers, and discipline of judges. Members include: the Presidents of the 3 chambers of supreme jurisdiction, 3 judges appointed by President, 3 judges appointed by National Assembly (Parliament), 3 sitting judges (2 have tenure, 1 appointed by other Council members). The President of Republic presides over the Council. 2) High Court of Justice- composed of members of National Assembly and headed by the President of Court of Cassation; purpose is to hold President of Republic and other government officials accountable to the law while in power 3) “Mediators of the Republic”- appointed by President and confirmed by National Assembly; function independently based on customary law (rural/village level), cannot be arrested/removed for decisions (which include only matters of family law and minor land disputes) and cannot issue physical punishments.

(Some quick observations so far…) n 1) 2) Parallels with France: There is a distinction between criminal/civil court cases and administrative cases (again, the Court of Cassation is for criminal/civil cases and Council of State is for administrative acts) Both the executive and legislature evenly share the responsibility for appointments

Power/Characteristics of Highest Court n n n n Highest Court= Constitutional Council Has judicial review: centralized, abstract, and a priori Review: international agreements, organic acts (acts which aim to “govern different institutions, organizations”), and standing orders of National Assembly; also decide eligibility of presidential and parliamentary candidates, decide election controversies, and declare the final results of presidential elections (legitimacy) Abstract: “Any litigant may raise the unconstitutionality of a law before any court. The referral to the Constitutional Council shall be by rule of law” (Art. 96) –referrals made by President of Rep, Pres of Parliament, or at least 1/10 Parliament Stare Decisis- Decisions are binding for all branches, officials, military institutions, etc; no further appeals can be made and decisions serve as precedent (e. g. a law declared uncon can never be passed/implemented) Members: 1) a President (appointed by current Pres of Rep to 6 -year non-renewable term), 2) former Presidents of the Republic (# not set), 3) 6 counselors (3 appointed by current Pres of Rep, 3 by Pres of Parliament) (1/2 of the members renewed every 3 years) The Constitutional Council itself must provide consent as a whole before members can be investigated, arrested, prosecuted…removal can take place once this consent is given

(more parallels with France) n n n Centralized, a priori, abstract The “ 3 supreme jurisdictions” and the lower courts do not deal with con issues and their decisions are neither binding nor carry precedent (because based on French civil law/civil code) However, in Cote d’Ivoire there exists precedent/binding decisions in the Constitutional Council (unlike France? )

Protections of Judicial Independence n n n n Judicial independence officially declared in Art. 101 Security of tenure to judges at lower level and for the 3 “supreme jurisdictions (lifetime) Internal control of nominations for judges, evaluations, promotions, transfers, discipline Judges in 3 “supreme jurisdictions” cannot be removed Appointments to Constitutional Council and Highest Judiciary Councils are split between Executive and Legislature Qualifications: Constitutional Council members (aside from the President of the Republic) cannot hold public office or any other elected office, including professional organizations, at the time of appointment Constitutional Councils must consent to investigation, arrest, prosecution (and, accordingly, removal) “Mediators of the Republic” cannot be arrested, prosecuted, removed for opinions issued

Threats to Judicial Independence n n Please note: the threats are very significant…much independence is granted “in principle” but hardly realized “in practice” 2 parallel “justice systems” function (ad hoc justice/no trial/executions) 1) Rebel justice (in 50% territory) 2) Military justice Corruption rampant (e. g. judges are often in cahoots with other government officials who are being sued) n military/executive often interfere with cases and decisions- intimidate judges, arrest parties in cases, “rough-up” witnesses (e. g. labor disputes) n judges are biased/partial n As one Ivorian lawyer living in exile explained, “The problems within the Ivorian judicial system reflect the same divisions and weaknesses that characterize Ivorian society today. Independence and impartiality of our judges and magistrates are severely compromised not only by corruption, but also by ethnic favoritism, political party affinities and religious prejudice. The society is divided by deep ethnic rivers and these rivers flow through the judicial system itself. ” (Human Rights Watch)

Unavailable Research I could not find information regarding: 1) Remuneration 2) Education of judges/lawyers 3) Training 4) Jurisdictional discretion 5) Qualifications for judges, aside from the Constitutional Councils prerequisite for not holding a political office or having professional ties It could arguably be assumed, however, that the qualifications are loose because of a shortage of candidates (similar to Uganda) and that some judges are drawn from other nations familiar with French civil law (even France? ) n

Conclusion n “In principle, ” Cote d’Ivoire has much judicial independence, but “in practice” this simply is not the case. Arguably, the main reason for this is the political environment. There exists extreme political instability, large rebel forces, and national lawlessness in over 50% of the country. The executive and military are pressed to maintain order and secure power, unfortunately at the expense of the judiciary’s independence “in practice. ” The independent judiciary outlined in Cote d’Ivoire’s constitution could very well function in another country, but definitely not under similar domestic conditions present today in Cote d’Ivoire.