Reports from the WAJC & Related Material
Now available for download:
A report on the West African Judical Colloquia (2007 & 2008)
A report from the 2008 Accra conference on "The Role of the Judiciary in Promoting Gender Justice in Africa"
1st West African Judicial Colloquium
Connecting International and National Justice
9-11 January 2006
From 9 to 11 January 2006, the West African Research Center (WARC) and the International Center for Ethics, Justice and Public Life of Brandeis University hosted the West African Judicial Colloquium in Dakar, Senegal. Twelve high court judges from the sub-region, four international judges, and eight other legal specialists gathered in Dakar for the event, the aim of which was to foster an exchange of experience and expertise between national and international judges. Participants included national judges from Benin, Burkina Faso, Cape Verde, Chad, Guinea Bissau, Guinea Conakry, Liberia, Mali, Niger, Nigeria, Mauritania, and Togo. International judges attended from the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda. Presenters included law specialists from Senegal, South Africa, Nigeria, Canada and the United States. (A complete list of Colloquium participants is below.)
The Colloquium was supported primarily by the Ford Foundation-West Africa, with additional funds from the JEHT Foundation and the Rice Family Foundation.
The first day of the Colloquium opened with welcome addresses from the Director of the International Center for Ethics, Justice and Public Life of Brandeis University, Daniel Terris (United States), Colloquium co-director Justice Richard Goldstone (South Africa), and the Director of the West African Research Center, Ousmane Sene (Senegal). The Colloquium was held at the Hotel Méridien Président in Dakar.
Participants, presenters, and staff of the West African Judicial Colloquium 2006
Following the opening addresses were two morning sessions followed: "Basic Rights and Human Rights in International and National Jurisdictions" and "National Courts and the Use of International Law - the Experience of South Africa." The first session was led by Babacar Kante, Professor of Law at the Université Gaston Berger de St. Louis and Vice-President of the Senegalese Constitutional Council (Senegal), and the second by Justice Goldstone.
The Colloquium's keynote address was delivered that afternoon by Ambassador Ahmedou Ould-Abdallah, Representative of the United Nations Secretary General in West Africa. The keynote session, which was held on the campus of the Université Cheikh Anta Diop de Dakar, was chaired by the Senegalese Minister of Justice, His Excellency Cheikh Tidiane Sy. (Read the keynote in English/en francais.) The keynote was followed by a lavish and lively reception held in the gardens of WARC, where guests were entertained by the beloved Senegalese band, l'Orchestre Baobab.
During the next two days, sessions continued at the Hotel Méridien Président. Topics included "Judicial Independence," "The Application of Human Rights Treaties in Africa," "Relations among Law, Custom and Religion in Africa," "The Death Penalty in National and International Jurisdictions," "The Importance of Judicial Dialogue," and "The New African Court of Human and Peoples' Rights: Opportunities and Challenges." Each session included an hour-long discussion among participants, where the issues raised by the session leader were debated in a frank and even provocative manner.
Babacar Kante's opening session set the stage for the rest of the colloquium by raising a problem of judicial interpretation that has both philosophical and pragmatic ramifications - the nature of basic rights and human rights. Both national and international judiciaries base their judgments, in part, on conceptions of human rights found in their constitutions or various legal instruments. On the national level, such conceptions may come from the domestication of international treaties or from constitutions drafted from the ground up. Regardless of the document, discussions of human rights will often refer to both "public freedoms" and "fundamental rights" without differentiating between the two. A question that national and international judges must consider in their work is whether to establish a hierarchy in the protection of rights.
At the heart of the debate is the definition of "fundamental rights." To some, those words describe freedoms to which all human beings are entitled and which cannot be taken away, the right to life being a primary example. Others see all rights allowed by a state to be fundamental rights and do not see a need to differentiate among them. In their eyes, the right to demonstrate and the right to life should be equally protected by law.
However, Kante pointed out, classifying a right as "fundamental" does not mean that the right will be guaranteed. Few would argue that every individual has a basic right to education, employment, and housing; yet all of those are subject to the capacity of the state. Does calling them "fundamental rights"; put them in the same category as freedom from rape or torture, violations of which can be tried in a domestic or international court? As one participant noted, "I don't know of a country where a citizen who is unemployed can sue the government for it. That is an objective of a fundamental value, but not a fundamental right."
Several participants noted that one right is often restricted to make room for another. If a judge is put in a position to rule on the legality of a garbage worker strike, for example, he or she will invariably have to balance the right to strike with the right of citizens to have certain public services provided. Whatever decision is made will infringe on someone's rights and establish a de facto hierarchy, if only in that particular case.
It is in those cases where participants saw the discussion of fundamental rights as being most applicable to their work. Simply classifying a right as fundamental or otherwise does not necessarily determine whether an individual will value that right more or less than another. As one participant put it, "Who is deciding on the nature of fundamental rights? The plaintiff. When you feel you are violated, it is you who decides."
In the end, there was general agreement among the assembled judges that establishing a fixed hierarchy of rights was an interesting academic exercise, but not a practical one. Judges must approach their work in the same way an individual decides when his or her rights have been violated: on a case-by-case basis. If a plaintiff's concern were not heard because it contradicted some theoretical hierarchy of rights, justice would not be served. It is important for each ruling to be achieved after a consideration of the facts at hand to ensure that personal, public, and national concerns are being adequately balanced.
Abdoullah Cissé (Senegal), professor of law and dean of the law school of the Université Gaston Berger de St. Louis, raised an equally important question in his session - that of the relationship among law, custom and religion in Africa. Since African judges are often called upon to consider both customary and religious practices in the course of their legal work, it would helpful if their relationship could be better understood. Cissé characterized this relationship as taking three possible forms: harmony, disorder, and vagueness. In other words, custom and religion may reinforce the law but through different means, these three systems may contradict one another, or it may be unclear, in fact, exactly what their relationship is.
Participants raised a number of issues in the ensuing discussion. The question of inheritance and land tenure came up several times, as these are issues that tend to be settled according to customary and religious practices instead of the codified law in many countries. The result is that women are frequently disadvantaged in the outcomes, and yet they often feel pressure not to appeal to their legal rights in these matters.
Several judges objected to the opposition drawn between custom and law. What is the law in Africa besides codified French custom, asked one supreme court justice? If Africa had colonized the West, then African custom would be the basis of law around the world, just as Western legal concepts have become dominant.
Amsatou Sow Sidibé's session on the implementation of human rights treaties in Africa also elicited some strong reactions. African governments are in the habit of signing any treaty that comes along, she observed, without necessarily having the capacity or even the political will to enforce it. Sidibé characterized judges as "the custodians of human rights." Yet several judges in attendance noted that they are not even aware of the content of some of the treaties signed by their own governments, since the documents are not made available. So it is clear that they cannot implement the provisions of these treaties through their own judicial decisions. Furthermore, parliaments need to pass legislation that enables judges to enforce the treaties that have been signed.
Sidibé suggested that the notorious lack of protection of human rights in Africa is a result of various administrative obstacles, including corruption and the protection and resulting impunity of national leaders who have abused their own citizens' rights. Ex-president of Liberia, Charles Taylor, currently in exile in Nigeria, and former Chadian president Hissène Habré, whom Senegal has declined to extradite, are cases in point. Furthermore, the way in which many African nations ratify treaties "with reservations," thus allowing custom and religion to take precedence when they are in conflict with international norms, empties the original treaties of their meaning. Sidibé concluded by suggesting that an advocacy campaign for the more effective implementation of human rights conventions is very much needed on the continent.
The ongoing problem of threats to judicial independence in West Africa was also a theme that resonated deeply with Colloquium participants. It was striking to hear the candor with which judges spoke about this challenge, whether the threats they experienced came directly from an overly controlling executive branch in their governments or less directly through the lack of an independent budget process for the judiciary. Judges pointed out the need for appropriate living and working conditions that would lessen the vulnerability of the judiciary to outside influence. Judge El Hadj Malick Sow, coordinator of the Senegalese Committee for Human Rights and leader of the session on judicial independence, noted the importance of constant mobilization and unflagging solidarity among magistrates and judges in order to ensure their ability to carry out their work independently. He asked participants to imagine a system in the West African sub-region that would be charged with monitoring judicial independence.
Finally, the idea of "judicial dialogue" inspired a variety of reactions by Colloquium participants. Claire l'Heureux-Dubé, retired justice of the Supreme Court of Canada, is committed to the notion of sharing jurisprudence and knowledge across judiciaries. She exhorted the assembled judges to inform themselves of decisions made by other courts, both national and international, and to incorporate this other jurisprudence into their own legal thinking. Judges cannot afford to be parochial in this age of globalization – the world is now characterized by "justice without borders."
Richard Goldstone noted that some nations are more supportive of this use of foreign jurisprudence than others. The Constitutional Court of South Africa is required to look at international law in making its decisions, and its interpretations must be consistent with this law. Furthermore, the court is invited to look at foreign law, that is the domestic law of other nations. The United States Supreme Court, on the other hand, makes no specific provision for the use of foreign jurisprudence and has several justices who are outright hostile to the idea that the decisions of either international courts or other national courts might be relevant to their work.
Several of the judges had questions about the primacy of national constitutions over international law or vice-versa. How are such controversies to be resolved? Do international laws need to be "domesticated" in order to be referenced by judges? Has the South African government, in asking its judges to look at foreign and international law, made provision for their education in this law? Many African judges noted that their courts are not equipped so as to allow them access to the decisions of other courts and there is no room in their budgets to develop this kind of dialogue.
A related issue raised in this session was that of social context and how much influence it should be seen to have in the face of "universal" - or international - norms. Many speak of the promotion of "positive African values" as a way to resolve some of the conflicts seen to exist between local practices and international standards, for example in the status of women or the treatment of children. One judge noted that "because we are guardians of justice and values in our countries, we are daily concerned with what are positive practices. But we need to remember that values are always evolving." This is an important point to remember in Canada as much as in Africa, observed l'Heureux-Dubé. Dialogue can only be effective if all stakeholders are heard.The discussions that took place during the West African Judicial Colloquium represent an important step in reinforcing connections between international and national justice. The African Court of Human and Peoples' Rights, whose inaugural bench was elected in January 2006, calls for the exhaustion of domestic remedies before it will consider a case. Chidi Odinkalu, of the Africa Open Society Justice Initiative, took advantage of the presence of participants from around the continent to bring up some of the problems that the Court is already facing, and how judges and legal experts across systems can work together to resolve them. The complementarity that is required between national courts and the International Criminal Court (ICC) in bringing war criminals to justice is another example of judicial interconnection. The presence of two ICC judges at the Colloquium created the opportunity for interesting reflections on the obstacles as well as opportunities inherent in such cooperation with their national counterparts. The legality of the death penalty in many African nations and the effect of international law on its application is an issue that will certainly arise, observed law professor Linda Carter, as national and international judicial institutions work together to bring about justice on the continent.
The Colloquium was formally concluded on January 11, with addresses made by the sponsoring organizations (WARC and Brandeis University) and the Colloquium Directors, Richard Goldstone and Babacar Kante. Many of the participants voiced their desire for follow-up programming to the Colloquium, noting the ability of such encounters to enhance their judicial performance and expand their network of professional contacts. WARC and Brandeis are currently reflecting on what shape future programs designed for the West African judiciary might take.
- Richard Goldstone, former Justice of the Constitutional Court of South Africa and former Chief Prosecutor of the ICTY (South Africa)
- Babacar Kante, Professor of International Law at l’Université Gaston Berger in St. Louis, Senegal, and Vice President of the Conseil Constitutionnel du Sénégal (Senegal)
- Linda Carter, Professor of Law and Director of the Criminal Justice Concentration at the University of the Pacific, McGeorge School of Law (United States)
- Abdoullah Cissé, Professor of Law and Dean of the Law School at the Université Gaston Berger de St. Louis, Senegal (Senegal)
- Claire L'Heureux Dubé, retired Justice of the Supreme Court of Canada (Canada)
- Chidi Anselm Odinkalu, Senior Legal Officer for the Africa Open Society Justice Initiative (Nigeria)
- Amsatou Sow Sidibé, Professor of Law, Director of the Institute for Human Rights and Peace at the Université Cheikh Anta Diop de Dakar
- Judge El Hadji Malick Sow, Coordinator of the Senegalese Committee for Human Rights
- Victor Adoussou, Justice of the Supreme Court of Benin
- Amar Balde, Advocate General of the Supreme Court of Guinea
- Abderahim Bireme Hamid, President of the Supreme Court of Chad
- Fatoumata Dembele Diarra, Judge at the International Criminal Court
- Mohamed ould Hannani, President of the Supreme Court of Mauritania
- Ribeiro Fernando Jorge, Justice of the Supreme Court of Guinea-Bissau
- Yussif D. Kaba, Justice of the Supreme Court of Liberia
- Kambou Kassoum, Justice of the Supreme Court of Burkina Faso
- Etienne Kene, Justice of the Supreme Court of Mali
- Arlindo Madina, Justice of the Supreme Tribunal of Cape Verde
- Bouba Mahaman, President of the Supreme Court of Niger
- Florence Ndepele Mwachande Mumba, Judge at the International Criminal Tribunal for the Former Yugoslavia, and Justice of the Supreme Court of Zambia
- Navanethem Pillay, Judge at the International Criminal Court
- Fausto Pocar, President of the International Criminal Tribunal for the former Yugoslavia
- T.T. Tekoe, President of the Supreme Court of Togo
- M.L. Uwais, Chief Justice of the Supreme Court of Nigeria
- Andrésia Vaz, Judge at the International Criminal Tribunal for Rwanda
Staff of the West African Research Center
- Ousmane Sene, director
- Moulaye Keita, colloquium coordinator
- Abdoulaye Niang, director of administration and telecommunications
Staff of the International Center for Ethics, Justice, and Public Life
- Daniel Terris, director
- Leigh Swigart, associate director
- Christopher Moore, communications specialist