«A/HRC/13/30/Add.3 United Nations General Assembly Distr.: General 23 March 2010 English Original: French Human Rights Council Thirteenth session ...»
General Assembly Distr.: General
23 March 2010
Human Rights Council
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Working Group on Arbitrary Detention*
Chairperson-Rapporteur: El Hadji Malick Sow
Mission to Senegal**
The Working Group conducted a country mission to the Republic of Senegal between 5 and 15 September 2009, at the invitation of the Government. During the visit, the Working Group held meetings with various executive, legislative and judicial authorities, the Senegalese Human Rights Committee, the Council of the Bar Association, figures active in civil society and representatives of United Nations institutions.
The Working Group visited the detention and correctional facilities and the police stations of Thiès and Saint-Louis, and the psychiatric clinic at the Fann University Hospital in Dakar. It also held private unwitnessed interviews with detainees at Rebeuss, Dakar’s main prison, and with detainees at Dakar’s Camp Pénal facility. The Group had access to the Liberté VI detention facility for women.
This report describes the institutional and legislative framework with respect to deprivation of liberty and human rights since Senegal gained independence in 1960. It notes that important institutional and legislative reforms have been introduced, mainly in 1984, 1992 and 2008.
A national human rights institute was created in 1987, and in 2004 the Government established a branch of the Office of the United Nations High Commissioner for Human Rights, a department attached to the General Secretariat of the Presidency of the Republic.
The Working Group also welcomes the efforts made by the Government to improve working conditions for judges, increase their powers and reform the legal aid system. It particularly approves of the bill to provide compensation for persons held in pretrial * Late submission.
** The summary of the report is circulated in all official languages. The report, contained in the annex to the summary, is circulated in the original language and in English, as are the appendices.
GE.10-12472 (E) 050810 A/HRC/13/30/Add.3 detention for long periods.
Although the Government has implemented substantial judicial reform with very positive results, the Working Group notes some deficiencies in the legislation. During its visit, the Working Group enquired about violations of the right to freedom of expression and opinion in cases involving the detention of journalists and detention on the grounds of “sexual orientation against nature”. Measures are also called for in the area of justice for children, mainly in relation to their protection.
In its recommendations, the Working Group gives priority to improving and guaranteeing the right to a fair trial, reducing the duration of pretrial detention and eliminating unsafe conditions of detention.
The Working Group calls upon the international community, and the Human Rights Council in particular, to provide the technical and financial support necessary to reinforce Senegal’s national capacities in the area of protecting human rights and to support the reform process initiated by the Government.
GE.10-12472 A/HRC/13/30/Add.3 I. Introduction
1. The Working Group on Arbitrary Detention, established pursuant to the former Commission on Human Rights resolution 1991/42 and whose mandate was confirmed and extended by resolution 6/4 of the Human Rights Council, conducted a country mission to the Republic of Senegal from 5 to 15 September, at the invitation of the Government. The delegation comprised two of the Working Group’s members: Professor Aslan Abashidze (of the Russian Federation) and Mr. Roberto Garreton (of Chile), accompanied by the Secretary of the Working Group, another official from the Office of the High Commissioner for Human Rights in Geneva and two interpreters.
2. The visit included the capital, Dakar, and the towns of Thiès and Saint-Louis. The Working Group regrets that, for logistical and security reasons, it was not able to visit the southern region of Casamance. The floods and consequent road blocks that occurred during the mission also prevented its planned visit to the town of Kaolack.
3. The Working Group would like to thank the Government for the invitation, which it feels attests to the Government’s willingness to take part in an independent and objective evaluation of the conformity with the relevant international norms of Senegalese legislation and practice in relation to deprivation of liberty.
4. Throughout the mission, the Working Group enjoyed the full cooperation of the Government regarding access to prisons, detention centres and police stations. All the Senegalese authorities involved were given sufficient advance notice of visits. However, during the visit to the main police station in Dakar, the Superintendent who had been contacted and officially assigned to take care of the Working Group during its visit was urgently called away for reasons of national security. In the end, the Group was received by his closest-ranking colleague. At the psychiatric clinic of the Fann University Hospital, the Working Group realized that some doctors had not been informed in advance of its visit.
5. The Working Group thanks the Senegalese Human Rights Committee and all the non-governmental representatives that it met, particularly the detainees, for their valuable contributions. It also thanks the OHCHR West Africa Regional Office for its help and assistance.
II. Programme of the visit
6. The Working Group met the Minister of Foreign Affairs; the Minister of the Interior;
the Minister of Justice; the Minister of the Armed Forces; the Minister of Health, Prevention and Hygiene; the Commission on Human Rights of the National Assembly; the Defence and Security Commission of the Senate; the President of the Supreme Court of Justice, judges and prosecutors of the Supreme Court, the Dakar Court of Appeal and the regional courts; officials representing departments of the criminal investigation police, the State security service and the territorial security service; the director of the psychiatric clinic of the Fann University Hospital in Dakar; and representatives of the Prison Service Administration. Owing to time constraints, the Working Group was unable to meet with the Minister of State, the Minister of the Armed Forces and the parliamentary authorities.
7. The Working Group was also able to meet with the members of the Senegalese Human Rights Committee, the National Bar Association, and representatives from several civil society organizations and the African Assembly for the Defense of Human Rights (RADDHO), in all of the towns visited.
8. In Dakar, the Working Group visited the main prison, the Camp Pénal facility, the Liberté VI detention facility for women and the psychiatric clinic at the Fann University Hospital. In Thiès and Saint-Louis, the delegation visited the detention and correctional facilities and the police stations.
III. Institutional and legal framework
1. The political system
9. Senegal is a secular, democratic and social republic. It respects all beliefs and guarantees the equality of all citizens before the law, without distinction as to origin, race, sex or religion. The First Constitution dates from 1959. It was revised in 1960, following a referendum. Several revisions were to follow, notably that of 1963, which established the pluralist presidential regime. The latest version dates from 2001. According to articles 3, 26 and 27 of the 2001 Constitution, the President of the Republic is elected by universal suffrage for a seven-year period of office, renewable for one further term. The President is the guardian of the Constitution, holds executive power and presides over the Council of Ministers (arts. 42, 45 and 49).
10. Legislative power is vested in the Parliament, which is composed of two assemblies of representatives: the Senate and the National Assembly. The 150 deputies of the National Assembly are elected for five years by direct universal suffrage. The Senate represents the communes and departments and those Senegalese living outside the national territory. The number of senators is fixed at 100, of whom 35 are elected in the departments and 65 are appointed by the President of the Republic, four of whom represent Senegalese living abroad. Senators are elected for five years by indirect universal suffrage (arts. 59, 60 and 61). Article 88 of the Constitution establishes the principle of the independence of the judiciary from the legislative and executive branches of government.
2. The judicial system
11. Under article 91 of the Constitution, the judiciary is the guardian of the freedoms defined by the Constitution. The 1992 reform led to the splitting of the judiciary into several specialized courts, namely the Constitutional Council, responsible for ensuring respect for the Constitution; and the Court of Cassation and Council of State, responsible for monitoring and advising the administration. The Organization Act of 8 August 2008, the latest reform, created the Supreme Court of Senegal, which brought together the Court of Cassation and the Council of State.
12. The judicial system is organized as a pyramid structure with the courts of first instance at the base, the courts of second instance (courts of appeal, courts of assize, regional courts and departmental courts) in the middle and the Supreme Court at the top. In addition, there are specialized courts: labour courts, juvenile courts and courts of military justice. The High Court of Justice has the authority to try the President of the Republic for high treason and ministers in cases of treasonable conspiracy.
13. The Minister for Justice is the most senior official in charge of all sectors of the judicial system. This includes areas such as planning, recruiting judges, managing staff and material resources, supervising court officials and overseeing the general inspectorates of the justice system. He is also directly involved in monitoring discipline within the judiciary.
14. The Minister for Justice is thus the official ultimately in charge of the administration of justice. Each court and prosecution service functions under a decentralized
administration supervised by the President of the court and the prosecutor. At court level, there is no qualified official specifically responsible for supervising the administration of the court or the prosecution service. The task falls to the President of the court or the chief prosecutor, who combine their work as judges with administrative functions.
15. The independence of the judiciary is guaranteed in the Constitution and the law on the status of the judiciary (Organic Law No. 2005.21 of 5 August 2005). Article 88 of the Constitution establishes the judiciary as independent of the executive branch: article 90, paragraph 2, states that judges, in the exercise of their functions, are subject only to the authority of the law. The Higher Council of the Judiciary is the body responsible for guiding judges’ careers and ensuring that discipline is maintained within the judiciary.
However, for reasons of autonomy and in terms of its functioning, the Council is under the authority of the executive branch.
16. The main guarantee of the independence of the judiciary resides in the procedure for the appointment of judges. According to article 47 of the Statute of the Judiciary, judges are recruited either through direct competition or on the basis of qualifications. The direct competition is open to Senegalese citizens who hold a master’s degree in jurisprudence, are no older than 40 years old, of good character, enjoy full civil rights and fulfil the physical requirements required for the exercise of the function. Admission on the basis of qualifications is open to lawyers who are members of the Bar Association, admitted under oath at least ten years previously; to chief registrars who have held a Master’s in Law for ten years; and to professors of jurisprudence with over ten years of experience.
17. Judges are appointed by the President of the Republic on the advice of the Higher Council of the Judiciary. In principle, the involvement of the Council removes the appointment process from the competence of the executive branch and thus protects it from political influence. However, the President of the Republic is not bound by the Council’s decision. When in session for the appointment of judges, the Council is chaired by the President of the Republic or, in the President’s absence, by the Minister of State, Keeper of the Seals and the Minister for Justice.
B. Respect for human rights
18. The Republic of Senegal has ratified the main international treaties, which, in accordance with article 98 of the Constitution, prevail over national law. In 1998, Senegal was one of the first States to ratify the Rome Statute of the International Criminal Court. It has ratified the International Covenant on Civil and Political Rights (signed 6 July 1970;