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Effectiveness of the Rule of Law in Senegal

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Effectiveness of the Rule of Law in Senegal EFFECTIVENESS OF THE RULE OF LAW IN SENEGAL By Moussa Sarr INTRODUCTION The theory of the rule of law which first made its appearance among German lawyers1, is today experiencing both at national and international levels, an astonishing promotion to a point that Jacques Chevallier does not hesitate talking about the phenomenon of ‘’globalization of the Rule of law’’2. Such an expansion of the rule of law would result into the implosion of the ‘’Eastern Block’’ and the triumph of the liberal ideology thus provoking seismic movement which shook totalitarian regimes which were built on reinforced concrete3. In this regard, the passion for democratic ideals practically pushed all African political regimes and the doctrine to formulate the principles of organization of power in accordance with the facts of the rule of law. As such, each African state, currently presents itself as state governed by the rule of law because the latter has become a reference, a title of respectability quoted both on national and international levels. However, the relevancy of this theory can only be appreciated by observing the conditions of its responsiveness and its implementation, which forms the basis of this study on effectiveness of the rule of law in Senegal. This country, the scope of our reflection, enjoys an old political tradition and the national feeling has already been well affirmed. It is the reason why everyone affirms the Senegalese experience initiated by President Senghor and pursued by President Abdou Diouf demonstrated, contrary to pessimistic predictions by some political scientists on the governability of multiparty democracies in Africa4. The emergence of multiparty democracy in Senegal before the first waves of democratization swept across Africa in 1990 showed clearly that the leaders of this state always got down to give effect to the existing standards. This significant progress in democratic matters have been made possible thanks to putting in place institutions susceptible of guaranteeing respect, promotion and protection of human rights since it is true for some that : « in the perspective of a state governed by the rule of law, the judge Doctorant d’Etat en Droit public à l’Université Gaston Berger de Saint Louis du Sénégal. 1 Voir Leisner (W), ‘’L’Etat de droit, une contradiction ?’’, in Mélanges Eisenmann, Paris, Cujus, 1974, pp.65 et S 2 Chevallier (J.), ‘’ La mondialisation de l’Etat de droit’’, in Droit et Politique à la croisée des cultures, Mélanges Phillipe Ardant, Paris, LGDJ, 1999, pp. 325 -337 3 Dounkeng Zele (C.), ‘’ L’Etat de droit face aux défis de son effectivité en Afrique’’, in Annales de la faculté des sciences juridiques et politiques de l’Université de Dschang, tome 8, 2004, p.189. 4 Gérard (C.), ‘’ Les processus de démocratisation en Afrique’’ in L’Afrique en transition vers le pluralisme politique (S/Dir.) de Gérard Conac, Colloque des 12 et 13 décembre 1990, Paris, Economica, p.25. appears to hold to the vault and the condition to its attainment »5. It is therefore for this reason the rule of law rests on constitutional timepiece composed of mechanisms of « checks and balances », reciprocal control between powers, meant to avoid abuses arising from concentration or rather confusion of power for the benefit one organ. Accordingly, the constitution plays the role of a catalyst in the State in that it determines not only the relations between different organs but also offers guarantees to citizens. It is for this reason the Dean Hauriou states that the constitutional normative is comprised of two dimensions one being « political » devoted to the organization and functioning of the state, the other being « social » relating to rights and freedoms of the citizens6. This idea of Professor Hauriou rejoins the letter and spirit of the thinking of the French revolutionaries who through Article 16 of the Declaration of the Rights of Man and the Citizen of 25th August 1789 stated that: « any society in which the guarantee for rights is neither ensured, nor determined separation of powers does not have a constitution ». However, are we in a position to verify the degree of application of the principles of the rule of law in Senegal? In the light of being able to get answers for such a question, we need to examine the contours of the notions, Rule of law” and “effectiveness”. However, it is necessary to emphasize that it no longer matters to debate on the multifaceted and multicolored spectrum of definitions proposed by abundant literature, since from a usual definition, ‘’The rule of law’’ means ’’submission of the State to the law’’7. In other terms, the rule of law organizes a body relatively coherent not only representations (power, law, freedom), but also practices which comfort and renew at the same time modern organization of social dominations. The finality of the rule of law is therefore attained from the instant when the law offers to citizens guarantees of protection and sufficient institutions against the powers of the State. It evokes a strict legal regulation of social relations and involves the submission of everyone, including the State and his head to the law.8 But, if we leave the domain of intellectual speculation to that of effectiveness, we notice that there are differences between theory and practice of the rule of law in Senegal. It is therefore for this reason that the relevance of these concepts cannot be assessed on condition that we tackle the social, political, economic and cultural context. In other 5 François DELPEREE le Renouveau du Droit constitutionnel, in Revue Français de Droit constitutionnel, n° 74 avril 2008, page 457. 6 Maurice Hauriou, Précis de droit constitutionnel, Sirey, 2e édit. , p. 624. 7 Cf. Lexique Droit constitutionnel, Paris, PUF, 1991, p.49, également Dictionnaire constitutionnel, Paris, PUF, 1992, pp. 415 -418. 8 Dounkeng Zele Champlain, L’instrumentalisation ou les usages politico-juridiques de l’Etat de droit, in ‘’ Annales de la Faculté des Sciences Juridiques et politiques’’, Tome 4, Presses Universitaires d’Afrique, 2000, p. 194. 2 terms, in Senegal, « the magical presence of the law »9 is not enough to guarantee its application. Effectiveness means a concrete application of the principles of the rule of law, in accordance with its letter or in the least its spirit, meaning at the intention of its maker. It essentially arises from the acceptance of the rule by its subjects10. A norm is effective if it translates into facts through observable behaviors and is in conformity with the purview of the norm in question. Judgment of effectiveness is accordingly, a judgment of reality and existence and not a judgment of values11. In other words, as a legal phenomenon, ‘’the State and the Law’’ cannot be separated from social formation, seen as a coherent unit of diverse, material and cultural elements, linked to one another, linked in constant interaction and in perpetual movement (hence the idea of historical trajectory highlighted by Perry Anderson and continued by J.F.Bayart). 12. It therefore follows that effectiveness, which measures the differences between the rule of law and its application, « tends therefore to be confused with efficacy, which enables assessment of results and social effects of the law, and with efficiency which consists of verifying that the objectives assigned in accordance with the law have been attained at the best cost »13 As for ineffectiveness, it means, on the contrary, a failure, a gap, a default of the rule of law, a refusal of the legal regulation or indifference in its respect. However, the practice of the rule of law has been and remains an ideal rarely attained. It cannot arise from a simple statement of intention written in such or such constitution. It therefore follows that the rule of law can only exist if the reality of social relations is organized according to its principles. It is a pure concept whose existence can be noticed or not, and which sees that socio-political relations are governed by the law. Despite institutional reforms or normative revolutions operated in Senegal in view of consolidating the rule of law, its effectiveness is always a problem. These different considerations enable us to ask ourselves the following question: what is the level of realization of the principles of the rule of law in Senegal? In other terms, are the different processes to which the Senegalese people committed themselves or sometimes imposed by external players pointers to the effectiveness of the rule of law in Senegal? 9 Seurin (J-L) : « Les fonctions politiques des constitutions. Pour une théorie politique des constitutions », in Seurin (J-L) (S/Dir) : Le constitutionnalisme aujourd’hui, Paris, Economica, 1984, p.45. 10 For a detailled study of the concept of effectiveness of the law, see Rangeon (F) « Réflexions sur l’effectivité du droit », in Les usages sociaux du droit, Paris, PUF, 1989, pp.126- 149 ; Lire aussi Carbonnier (J) : Flexibilité droit, textes pour une sociologie du droit sans rigueur notamment le chapitre 11 sur l’effectivité et l’ineffectivité de la règle de droit, 5e édition, Paris, LGDJ, 1983, pp.125 -137 11 Slim Laghmani : « L’effectivité des sanctions des violations des droits fondamentaux, Développements récents », in L’effectivité des droits fondamentaux dans les pays de la communauté francophone, Montréal, Editions AUPELE-UREF, 1994, p. 541 12 Pierre François Gonidec, l’Etat de droit en Afrique. Le sens des mots, in ‘’Revue Juridique et politique Indépendance et Coopération’’, Ed. Juris Africa, 53e année n° 1, janvier-avril 1998, p.3. 13 Rangeon (F), op, cit. p.127. 3 To this question, we are in a position to reply in that with respect to the multiplicity and the diversity of players all committed, to ensure in a better adherence to democratic principles and the rule of law in Senegal, that the effectiveness of the rule of law in this country is an incomplete process, but which remains irreversible.
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