Oxford Law Citator

Part IV Independent Constitutional Institutions, 16 Separation of Powers and the Position of the Public Prosecutor in Francophone Africa

Horace Adjolohoun, Charles M. Fombad

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

Content type:: Book content

Product:: Oxford Constitutions of the World [OCW]

Series:: Stellenbosch Handbooks In African Constitutional Law

Published in print:: 03 March 2016

ISBN:: 9780198759799

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(p. 359) 16 Separation of Powers and the Position of the Public Prosecutor in Francophone Africa

1. Introduction

As African countries grapple with the challenges of entrenching an ethos of constitutionalism, one of the issues that has not attracted much attention when dealing with the efforts to promote transparency and accountability through the separation of powers has been the role of the public prosecutor. Commonly known as the representative of the people, of society, or of the public interest, the public prosecutor has, particularly in respect of its status, raised complex issues of where exactly they fit within the three branches of government. Understanding the nature of this relationship is particularly important because of the impact it has on the good administration of justice and consequently respect for the rule of law. This chapter will consider the position in Francophone Africa.

Most of Francophone Africa inherited and has maintained the French civil law tradition which confers on the public prosecutor constitutional and institutional status of dependence on and limited independence from the executive and judiciary. It is a delicate balance which tilted more in favour of dependence than independence before the 1990s, during the long era of dictatorship that followed independence. The roots of the institution of public prosecutor can be traced back to the royal system of administration of justice in France which subsequently spread to the rest of Europe. This also influenced the adoption of the French approach in other civil law jurisdictions in Africa. However, the French prosecutorial system and the role of the prosecutor have evolved considerably in the twentieth century. In fact, from the 1990s, a review of the French system was embarked upon probably due to a number of decisions by the European Court of Human Rights (ECHR) which called into question the independence of the public prosecutor in France. The review culminated in a series of legal and institutional reforms in the 2000s.¹ The question that this raises is whether the approach in Francophone Africa has also evolved. Situating the status and role of the public prosecutor in Francophone Africa today is important because it will give an indication of the extent to which the process of establishing democratic and accountable institutions strengthened by the checks and balances that go with the separation of powers has progressed.

(p. 360) The chapter is divided into five sections. Section 2 will briefly discuss the historical origins of the public prosecutor in France and its adoption in Francophone Africa. Section 3 will examine his functions. In Section 4, his status vis-à-vis the other branches of government will be discussed. The concluding Section 5 will point out that the relationship of dependence on the executive and judiciary has largely remained unchanged and poses challenges not only to the good administration of justice but also the entrenchment of a culture of constitutional democracy. A number of reforms are suggested which it is hoped will enhance the ability of the public prosecutor to discharge his functions more effectively and in this way contribute to sustaining Africa’s fragile transition to constitutional democracy.

2. The Historical Origins and Evolution of the Public Prosecutor in France and Its Adoption in Francophone Africa

Historically, the function of public prosecutor emerged from the profession of lawyers or advocates in the fourteenth century.² The very name of ‘prosecutor’ and the role of its incumbent was inspired by the procedure established within the tribunals of the Inquisition in France. Prosecutors were then legal practitioners who not only defended the interests of the king, lords, cities, and municipalities, but also represented individuals before courts. While the Ministère Public or Parquet (Office of the Public Prosecutor or Directorate of Public Prosecution) as it operates today appeared only under Napoleon Bonaparte, its function may be traced back at least to the fourteenth century. The practice of prosecutors representing kings was also developed in the fourteenth century in French courts and parliaments. When the king had personal, mainly patrimonial interests, in the matter, he appointed procuralores to defend such interests before his own judges in the royal courts.³

However, the function rapidly evolved from defending the king’s interest to defending the public interest, particularly in criminal matters. The principle of public interest itself stems from the legal rule of interest rei publicae ne maleficia remaneant impunita. Devised by civil law specialists in the twelfth century, the rule provides that it is in the interest of the public that crime does not remain unpunished. Prosecutors of the monarch adopted the public interest principle in the thirteenth century to prosecute the most serious crimes in royal courts upon the request of judges themselves or under the king’s instruction. From that development, royal prosecutors were separated from their counterparts, and the king progressively requested them to provide him with their exclusive services. Prosecutors of the king thus became public prosecutors and joined royal courts, although, during court sessions, they appeared away from the siège (the bench), standing on the parquet.⁴

(p. 361) Taking advantage of the public interest principle, the king’s lawyers spearheaded the development of criminal law. They subsequently used all means provided by that new development to zealously prosecute and punish crime, and also played a role in civil and administrative matters.⁵ This development expanded the ascendance of royal public prosecutors over other prosecutors. The public prosecutor’s role was expanded to include a role in the administration of the police and they received instructions directly from the king. The king’s prosecutors were equally appointed as pro bono lawyers for indigent litigants, particularly when the interest at stake coincided with those of the king.⁶

Expanding the role of the king’s prosecutors to defending the public interest logically led to their participation in the administration of the royal police. Even though they remained independent in the discharge of their duties, public prosecutors increasingly received instructions from the king. They ultimately assumed duty with the dilemma of either obeying royal instructions or resigning, but they could not be removed.⁷ The office of the prosecutor became more politicized under the reign of Louis XIV. Subsequently portrayed as an ‘agency of government’, prosecutors lost the privilege of irremovability and the guarantee of security of tenure, which was supposed to prevent them from being removed from office arbitrarily. This led to conflicts between the public prosecutor and the executive arm of the state which reached its climax in the nineteenth century. The main bone of contention was the independence of the office, particularly whether it should obey executive instructions or not. As will be seen later in this discussion, the current functioning of the office in France and Francophone Africa suggests that the policy of acting on executive instructions prevailed.⁸

The ascendance of the executive over the office of the contemporary French public prosecutors is inspired by developments of the function under monarchies but even more by the ancient principle of indivisibility between the king and justice. In fact, French kings held full judicial authority and administered justice for which they believed they had received spiritual and temporal powers from God. However, progressively, they delegated part of their judicial powers to clerics and other magistrates but retained the power to deal with or reallocate any case to a different tribunal. In courts, assigned magistrates wore red gowns similar to those of the king.⁹

The French model of the public prosecutor was thus developed predominantly from the functioning of the monarchical administration of justice for the king and the public interest. Although the historical origins and evolution of the public prosecutor in France is fairly peculiar, the approach adopted is very similar to most of continental Europe, especially countries like Belgium, Portugal, and Spain which also had colonies in Africa.¹⁰

(p. 362) The present judicial system and organization of the judiciary in Francophone Africa is a replica of the French model. France designed a judicial system for colonies very close to the one in metropolitan France by which the highest judicial authorities of the colonies were based in Paris. The Ministère Public in Francophone African countries adopted the French Code of Criminal Instruction (CCI) of 1808.¹¹ Under the CCI, the purpose of the criminal justice system was to protect individuals against crime, protect the rights of victims and guarantee a fair trial for the accused. The inquisitorial prosecution system was in force as opposed to the accusatorial system mainly used in common law jurisdictions. Under the accusatorial system, parties are equal at all levels of the criminal proceedings and under the control of a neutral judge who acts more or less as an umpire. By contrast, the inquisitorial system established a sort of quasi-monopoly of the public prosecutor over the prosecution right from the initial stages of the case, the investigations of the crime, and the gathering of evidence to the trial and sentencing. The CCI did not separate preliminary investigations by police under the authority of the public prosecutor from the examination and prosecution by the judge. The public prosecutor therefore had full and unchallenged discretion to institute proceedings, investigate, and gather evidence in a process that was opaque. As an agent designated by the state, the prosecutor had full control over the pre-trial phase with no control by the judiciary as no other actor had access to the file until the trial commenced.¹²

With this approach to criminal prosecution, the public prosecutor appeared to be a party to a case in which it had previously had full and exclusive discretion to investigate, order coercive measures such as pre-trial detention, and decide whether or not to try the accused, whilst the accused and the court remained passive. Suspects were remanded in police custody with no access to lawyers. Furthermore, the public prosecutor had full discretion to decide a non-lieu (that is, whether or not to discontinue) or refer the matter for trial. Throughout the pre-trial phase, the prosecutor had leeway to order detention or other coercive measures.¹³

While France has made a number of changes to this prosecutorial system that it transplanted to Africa, especially with regards to the guarantee of equality of the parties, the role and powers of the public prosecutor in Francophone Africa has remained by and large unchanged. For instance, France’s judicial reforms introduced access to a lawyer right from the outset of the pre-trial phase in a bid to balance the rights of the accused with those of the victims and that of the society, which is defended by the public prosecutor. Nevertheless, it must also be pointed out that a number of Francophone African countries have since the 1990s tried to reform the inherited system and have brought some changes to the role and powers of the public prosecutor. For instance, under the 2005 Law on Criminal Procedure adopted in Cameroon, the public prosecutor becomes a party at par with other actors in the criminal trial. Moreover, the right to legal counsel is provided for from the commencement of the investigations, and there is now provision for an investigative judge. Under the same reform, bail is granted at all stages of the proceedings and there is provision for Page Id: 362References(p. 363) compensation in cases of illegal pre-trial detention.¹⁴ However, in spite of these reforms, public prosecutors in Francophone Africa still function very much within the same constraints as they did before independence. We shall now examine these functions.

3. The Functions of the Public Prosecutor

It is axiomatic that the discretion to prosecute is key to the functions of the prosecuting authority. To fully understand the functions they perform, it is important to note that the public prosecutors in the civilian systems in Francophone Africa operate within the broader institution of the Ministère Public, which could be compared with the Office or Department of the Public Prosecutor in the common law systems. The main difference with the practice in the common law jurisdictions is that, in the civil laws system in Francophone Africa, the public prosecutor retains full control over both the investigatory and post-investigatory stages.¹⁵ In spite of a few variations in some of these Francophone African countries, the common core functions of the public prosecutor which involve instructing the instigation of investigations, instructing the police on the scope of investigations, personally investigating criminal cases, participating in investigations, and deciding on the type of investigations are very similar.¹⁶

In general, the provisions in the law on criminal procedure setting out the mission of the Ministère Public in Francophone African countries are more or less similar to articles 1 and 31 of the French Code of Criminal Procedure. The Ministère Public has two main missions: to initiate public prosecutions and to enforce the criminal law. To attain these objectives, the public prosecutor may conduct or supervise preliminary investigations, and decide whether or not to prosecute. Both the public prosecutor and the police have the powers to carry out preliminary investigations. However, it is the public prosecutor who assesses the strengths and weaknesses of the case and decides whether there is sufficient evidence to take the matter to court.

Although prosecuting criminal matters constitutes the main function of the public prosecutor, they also sometimes represent the interest of society in civil and constitutional proceedings, for instance in cases of change of name, or adoption.

The primary prosecuting function of the public prosecutor is in many respects political. As part of that mission, the prosecutor discharges a duty of prosecuting crime for the good of society, and thus aims to protect the public interest. Accordingly, the public prosecutor tries, in his daily functions, to enforce the penal policy of the state, which is designed, coordinated, and enforced under the primary responsibility of the executive. As such, in Francophone Africa, the Minister of Justice enforces the penal policy determined by the executive and sees to its coherent application Page Id: 363References(p. 364) nationally. It is however the public prosecutor, and more generally, the Ministère Public, which implements this policy on the ground.¹⁷

Another important aspect of the role of the public prosecutor is termed as régalien—royal—to mean that these are functions of the state that are so attached to its sovereignty that they may not be entrusted to a non-state entity. These duties traditionally include national defence and security, economic sovereignty and, as a matter of course, justice.¹⁸ In the pursuit of this mission attached to the sovereignty of the state, the public prosecutor is bestowed with the discretion to decide whether or not an offence should be prosecuted and whether or not alternative procedures should be used to deal with the offence.¹⁹ In other words, and borrowing from the historical perspective of justice being a sovereign function of the state, the public prosecutor, as an agent of the king, is entrusted with the power to decide whether a crime should be punished, as he acts on behalf of society. However, as will be shown in the next section, both the Procureur Général, who is the head of the Ministère Public within the jurisdiction of the Court of Appeal and the Minister of Justice, exercise some control over the public prosecutor’s discretion in these matters.

In general, judicial reforms undertaken in most Francophone African countries in the 2000s have tried to share the functions and powers of the prosecutor under the inherited French Code of Criminal Procedure amongst three separate judicial authorities. Under the new laws, the prosecutor’s role is limited to investigating offences and requesting the juge d’instruction—examining judge—to undertake a formal inquiry, continue investigations, and give directions to the police. A third judicial authority, the judge in charge of the execution of sentences and pre-trial detention, may order detention or remand, or release.²⁰ For example, Benin in 2012, Cameroon in 2005, and Senegal in 2014 (as part of a consolidation of their laws) have enacted new codes of criminal procedure which now provide that preliminary investigations and prosecution are conducted by police officers or designated officials but under the instructions and supervision of the public prosecutor.²¹ In supervising the investigation of criminal offences, the prosecutor issues general or specific directives to investigators in which the choice and priority of penal policy are highlighted. Investigators must at all times report to the public prosecutor who has the power to take over any investigation they deem appropriate. Under the same laws, the prosecutor may authorize police custody and order pre-trial detention. Importantly, he may institute criminal prosecution upon request or suo motu, and may request the examining judge to add new charges. A refusal to grant such a request must be by way of a reasoned decision and the prosecutor, if dissatisfied, may request that the case be referred to a different judge.

As indicated earlier, an important power at the disposal of any public prosecutor in the discharge of his functions is whether to refer the case to court or filter it out of the Page Id: 364References(p. 365) system. As a general trend, civil law countries apply the principle of legality of prosecution, in contrast to common law jurisdictions who apply the opportunity principle.²² Under the legality principle, every case in which there is enough evidence and no legal hindrance to prosecute must be brought before the court. The underlying reasoning behind this principle is that the legislative authority, and not the courts, should address any shortcomings resulting from the strict application of the legal or mandatory prosecution rule.²³ By contrast, the principle of opportunity dictates that the evidence and any other relevant factors should influence the decision as to whether to prosecute or not. This approach allows the public prosecutor to make his decision whether or not to prosecute on the basis of factors classified as of public interest and must take into account factors such as the status of the accused, the victim, the gravity of the offence, and the availability of resources.²⁴

In all, although the new codes adopted by Francophone African countries in the 2000s have brought about some significant changes to the old French prosecution approach, the public prosecutor still retains important powers in the administration of justice in particular and in the judicial system as a whole. For instance, under most of the reforms, the previous omnipotent prosecutor shares his functions and powers with an examining judge and a judge in charge of enforcement of sentences and pre-trial detention. The reforms also appear to have given the public prosecutor greater powers in the making of decisions on whether or not to prosecute for reasons other than legality.²⁵ For instance, French reforms in the early 2000s allow the public prosecutor to adopt alternatives to prosecution, such as the use of mediation of sentences in criminal cases.²⁶ Senegal has adopted a similar approach in its new criminal legislation.

In the light of their mission, functions, and powers, the public prosecutor in Francophone Africa is a major actor in the dispensation of justice and the operation of the judicial system. Sometimes the public prosecutor participates in the exercise of judicial powers and at other times he is closely linked with the exercise of executive powers. It is necessary to see to what extent this may interfere with his ability to operate independently and effectively.

4. The Anomalous Status of the Public Prosecutor: A Mix of Dependence and Independence

As we have alluded to in the preceding discussion, the public protector occupies a rather complex position in his relations with the three branches of government, particularly the executive and the judiciary. It is now necessary to examine exactly how this plays out and what possible impact it may have in the proper discharge of his duties particularly in the context of separation of powers which is designed to (p. 366) guarantee checks and balances between the different branches whilst ensuring that none unduly interferes with the functions of the other.

4.1 Relations with and independence from the executive

As we have seen, the public prosecutor is vested with the responsibility for protecting the public interest and acts as the chief enforcer of the state’s penal policy. As such he has unavoidable ties with the executive, which is responsible for defining penal policy and enforcing the law, as was the king in the early years of public prosecution. However, going by the postulate of separation of powers, the traditional function of the executive is to ensure the implementation of the law adopted by the legislature while the judiciary sees to the proper implementation of the law. The relations between the public prosecutor and the executive therefore appear to be anomalous when assessed in the context of separation of powers. One could correctly describe such a situation as being somewhat incestuous. The numerous issues that arise can be summed up under two main heads—the implications that arise from the constitutional power of the executive to appoint, promote, transfer, and discipline public prosecutors; and the implications of subordinating public prosecutors to the hierarchical control of the minister of justice.

4.1.1 The constitutional power to appoint, promote, transfer, and discipline public prosecutors

The constitutions in Francophone Africa usually provide that public prosecutors and judges are to be appointed by the president of the republic or in some cases, upon the proposal of the Minister of Justice based on the advice or opinion of the Conseil Supérieur de la Magistrature (CSM)—which could be compared with the Judicial Service Commission in common law jurisdictions.²⁷ A close relationship of dependence and control ensues due to many factors. First, the vague language used, indicating that the CSM only expresses an opinion or gives advice means that there is no strict obligation to comply with this. This is particularly problematic because of the weak system of judicial review over executive actions in Francophone Africa. In those few Francophone jurisdictions which have introduced some form of judicial review along lines closer to the American model of judicial review than the French model of control of constitutional review through the Conseil Constitutionnel—the best example of which is Benin—the courts have sometimes intervened to check executive abuse. For instance, as far as appointments are concerned, the Constitutional Court of Benin has consistently held that the silence or failure of the president to appoint a magistrate as a judge or prosecutor following the recommendations of the CSM amounts to a violation of the constitution. The Court had previously held, while undertaking the constitutional review of the Act on the CSM, that the latter has a prominent role in Page Id: 366References(p. 367) safeguarding the independence of the judiciary. According to the Court, the related provision of the law had to be amended to make it clear that the recommendations of the CSM bind the president of the republic in the appointment of judicial officers.²⁸

Second, although the CSM is supposed to play a key role in the management of judicial officers, including public prosecutors and judges, it is not really an independent body that is capable of taking impartial decisions. Most of the constitutional provisions dealing with the judiciary in Francophone Africa state that the president of the republic is the guarantor of the independence of the judiciary.²⁹ The CSM is only supposed to assist the president of the republic to discharge this function. In most of these countries, the CSM is packed with officials directly or indirectly appointed by the president mainly from the executive and some from the judiciary and the legislature. This is confounded by the fact that in the same countries, the president of the republic acts as the president of the CSM and his Minister of Justice as vice-president.³⁰ They also draw up the agenda and convene meetings of the CSM. It is thus an illusion to require a body that operates in such a manner under the control of the president and his minister to make recommendations to them or even ‘assist’ them as some constitutions state. As a matter of fact, the French structure of the judiciary which most Francophone African countries inherited at independence, has since undergone radical changes from the late 2000s. For instance, in the course of its constitutional reforms of 2008, France excluded both the president of the republic and the Minister of Justice from membership of the CSM. Hardly any African country in Francophone Africa has done this.³¹

Third, the scope for independent action is limited because of the extensive powers of the CSM over the public prosecutors as well as judges on all matters relating to appointments, promotions, transfers, and discipline. Besides this, some of the constitutional measures entrenched to protect judges do not apply to public prosecutors. For example, some constitutions expressly provide that judges may not be transferred without their consent even in cases of promotion;³² no similar provisions are made for prosecutors. Again many constitutions expressly limit the provisions which prohibit arbitrary dismissal of judicial officers only to judges³³ and in those cases where there is silence regarding security of tenure for prosecutors, the relevant laws Page Id: 367References(p. 368) organizing the functioning of the judiciary and the status of judges grant full discretion to the executive when it comes to appointing, moving, or removing prosecutors.³⁴ For example, in Benin, article 6(2) of the Loi portant Statut de la Magistrature, provides that

magistrates of the Ministère Public [that is public prosecutors] may be moved without promotion by a Cabinet decree, from one post to another, upon their own request or automatically—as a matter of course—in the interest of the public service after the opinion of the CSM.

More generally, the executive also exercises control over prosecutors and other legal officers who work within the Ministère Public, through the Minister of Justice. A quite illustrative case is the one of Cameroon, where a Permanent Disciplinary Commission is set up within the Ministry of Justice to deal only with disciplinary matters relating to prosecutors.³⁵ Besides the CSM, the executive also holds various subordination strings namely through the Minister of Justice, and factors that are inherent to the system but also to the judicial officers themselves.

4.1.2 The control exercised through subordination to the Ministry of Justice

This control can be exercised in two main ways. First, the judiciary depends on executive provisions for its budget and logistics. Second, judicial officers, particularly public prosecutors, depend not only on the Ministry of Justice but also on several other ministries. Third, the judiciary has seemingly developed a type of ‘sociological dependency’ vis-à-vis the executive.

Regarding the first point, due to its direct involvement in the management of judicial officers, the executive in Francophone Africa is also the custodian of the financial and logistical resources needed for the proper administration of justice, and therefore the functioning of the Ministère Public. For instance, the budget of the Supreme Court, the Directorate of Public Prosecutions, and in fact that of the entire judiciary is part of the general state budget managed by the executive. Courts and judicial officers, including the public prosecutor, do not therefore receive resources directly from the allocation voted by parliament but from the budget allocated to the executive.³⁶ Studies focusing on the independence of courts in Francophone countries, including Africa, have shown that financial autonomy and security are key to the independence of the judiciary from both the executive and legislature.³⁷ In such circumstances, it is difficult for public prosecutors to perform their functions independently where the executive has the discretion to decide what resources will be made available to them. Page Id: 368References(p. 369) Furthermore, since the public prosecutor, who is under the authority of the executive, may be a party in the trial in which the government has increasingly had interest, possibilities of controlling the administration of justice are real.³⁸

The second factor relates to the multiple hierarchical systems to which the public prosecutor responds. Public prosecutors are not only under the hierarchical dependence of the Ministry of Justice but also subordinate to both the Ministries of Interior and Defence. Indeed, investigating officers in the police and gendarmerie discharge prosecutorial functions under the direct control of these two ministries. These links further limit the possibility of an independent and fearless discharge of prosecutorial functions as prosecutors are under the control and authority of multiple executive ministerial agencies. Such situations have impacted directly on the opportunity, scope, and outcome of prosecution especially where the executive itself is an actual or potential litigant. The effect is that whether it is the executive or private parties, the wealthier or more powerful party has shown a potential to dictate the direction of prosecution.³⁹

A last ancillary factor is manifested by the inherent tendency of the Francophone African magistrat to entertain a culture of subordination, particularly vis-à-vis the executive. All Francophone countries in Africa have copied the French model of recruiting judges and prosecutors through National Schools of Administration and Judicial Training. Access to the schools are open to young law graduates who undergo a two-year training programme after which they are appointed to perform judicial functions, including prosecuting complex matters. With little or no experience, these junior judicial officers are especially vulnerable to taking instructions from third parties, especially the executive. In Africa where the culture of bowing to the wishes of the chief or elders in society is well-entrenched, only bold prosecutors can disobey the premier magistrat.⁴⁰

The general trend in Francophone Africa is that judicial officers are often recruited early in their careers and retire by the age of 65. It may, therefore, be argued that they join the judiciary at a time when they are too inexperienced and immature to withstand executive pressure. In addition, since professional advancement requires only fifteen years’ experience in the judiciary to be eligible to sit in the Supreme Court for instance, it is not surprising that judges sitting in the top court are only in their forties or fifties, where they are expected to officiate as the ‘most senior members of the judiciary’.⁴¹ Moreover, judicial officers in Francophone Africa are not recruited on the basis of their experience in legal practice but rather fresh from the famous National Schools of Administration and Judicial Training with no experience other than a one-year internship in lower courts.

(p. 370) Another major avenue through which the executive is able to influence the functioning of public prosecutors is through the so-called power of instructions and recommendations that can be issued by the Minister of Justice to public prosecutors. Through this mechanism, the Minister of Justice may indirectly influence the decision of the public prosecutor in any pending matter through the Ministère Public. If one considers the fact that the power to decide whether or not to prosecute a criminal offence is at the heart of the functions and the independence of the public prosecutor then it is easy to imagine what implications this might have in practice. It therefore means the public prosecutor’s discretion is no longer unfettered.

In fact, all codes of criminal procedure in Francophone Africa are couched in language similar to article 30 of the French Code of Criminal Procedure which provides that:

The Minister of Justice may report to the Procureur général of the Appeal Court, responsible for all prosecutions within the jurisdiction of that court, any breach of the criminal law which comes to his knowledge and enjoin him, through written instructions … to initiate criminal proceedings or seize the competent court with such submissions which the Minister deems fit.⁴²

Laws on the status of the Magistrature, which is composed of judges, public prosecutors, and judicial officers working within the Ministry of Justice, emphasize the importance of the role of the Minister of Justice by providing that public prosecutors, in the discharge of their functions, must follow instructions given by the hierarchical authority—which is ultimately the Minister of Justice.⁴³ Even Côte d’Ivoire, which during its reforms tried to enhance the guarantees for judicial independence (including public prosecutors) in its 2000 constitution, conferred similar powers to the Minister of Justice.⁴⁴ In Cameroon, article 134(1) of the Code of Criminal Procedure provides that only judicial authorities may instruct the public prosecutor to initiate or drop criminal proceedings.⁴⁵ This apparently progressive stance is virtually neutralized by article 64(1) of the same Code which states that the prosecutor may, upon the written authorization of the Minister of Justice, request that criminal proceedings are halted at any stage when such is likely to endanger public peace and interest. Furthermore, some laws take away the discretion of the prosecutor to freely make oral submissions contrary to written ones filed upon the instructions of the Minister of Justice as encompassed by the well-known judicial maxim: ‘la plume est serve mais la parole Page Id: 370References(p. 371) est libre’.⁴⁶ For instance, while the law in Senegal places no conditions on free oral submissions in courts, Cameroonian law subordinates such submissions to prior and timely notification to their immediate hierarchical authority.⁴⁷ The possibility thus allows for the Minister of Justice to influence the course of prosecution and provides considerable scope for direct or indirect interference with the functioning of the administration of justice and respect for the rule of law. This can hardly be reconciled with the constitutional provisions in most Francophone constitutions which state categorically that all judicial officers in the discharge of their duties must be independent and act in accordance with the law only.⁴⁸ Since both judges and prosecutors pursue the same goal, that of protecting society against criminal activities and upholding the law, it can be argued that they should be protected by the same rules and enjoy the same independence in their functions.

The continuous scope for wide ranging interference by the executive in the work of the public prosecutors in Francophone Africa is quite at odds with reforms in France, the country from which the present system was borrowed. However, it needs to be said that the French reforms were probably due more to their desire to conform to European standards dictated upon it by a series of judgments of the ECHR than a deliberate attempt to free public prosecutors from the stranglehold of the executive.⁴⁹ France’s highest courts have shifted jurisprudential positions following the ECHR’s judgments. Before the ECHR’s judgments, both the Court of Cassation and Constitutional Council were of the view that the prosecutor with its current features may discharge judicial functions despite its obvious lack of independence vis-à-vis the executive.⁵⁰ Immediately after the Medvedyev and Moulin judgments by the Strasbourg Court, the French courts reversed their precedents and decided that the prosecutor is not a judicial authority in the sense of the convention as he lacks independence and impartiality, and is a party to the trial.⁵¹

A number of recent cases and incidents in some jurisdictions in Francophone Africa aptly illustrate the pressures that public prosecutors come under as a result of executive interference. The first concerns the attempts to prosecute the former Chadian president, Hissène Habré, for alleged crimes against humanity committed during his time in power. After relentless international pressure was brought to bear on the Senegalese Page Id: 371References(p. 372) authorities, he was finally indicted in 2000 by Senegal judge, Demba Kandji. The former President of Senegal, Abdoulaye Wade, when presiding over his first meeting of the CSM, decided to remove Kandji from his position as investigating magistrate, while the case against Habré was still ongoing. During the same meeting, the CSM decided to promote Cheickh Tidiane Diakhaté, President of the Indictment Chamber of the Court of Appeal of Dakar, to the position of judge of the Administrative Chamber of the Supreme Court of Senegal. The state’s appeal against Kandji’s decision was still pending before the Court of Appeal of Dakar, which was due to hand down its judgment within three days of the appointment of Diakhaté. The Court of Appeal eventually reversed the indictment, and this led to the decade-long judicial saga that ensured Habré immunity until the establishment of the Extraordinary African Chambers within the Senegalese judicial system after President Wade left power in 2012. Besides, both decisions of the CSM were made immediately after the president of the republic had appointed as his personal legal advisor, Advocate Madické Niang, then lead counsel for Habré in the matter pending before the Senegalese courts.⁵²

A second example comes from Benin in the so-called Talon case, which has been in the news since 2011 to the time of this publication. After allegedly sponsoring Boni Yayi’s successful bid for the presidency in 2006 and again in 2011, prominent Beninese businessman Patrice Talon obtained a number of lucrative public contracts as reward for his efforts. Having, according to his subsequent declaration, opposed Yayi’s project to amend the constitution and stand for a third term, Talon fell out with the president. The businessman was then accused of planning a coup and plotting to poison the president. Fearing for his life, he went into exile in France. The executive then proceeded to cancel all contracts previously awarded to him and seized his companies on the basis of national interest and through non-judicial processes. Meanwhile, arrest and extradition warrants were issued against him. The president lost two cases he brought against him in French courts.⁵³ However, what is of interest here is the case brought before the Benin courts against the president’s personal bodyguard, maid, private doctor, and former minister for collaborating with Talon in the poisoning plot to assassinate the president. The first instance investigating judge, Angelo Houssou, who ordered the release of the accused on 17 May 2013 for lack of evidence was kept under house of arrest by the executive for a couple of months and eventually fled to the US where he applied for political asylum.⁵⁴ The Court of Appeal of Cotonou upheld the decision of Judge Houssou, but both the president of the republic and the public (p. 373) prosecutor appealed to the Supreme Court. On 2 May 2014, the highest court reversed the decision of the previous courts on mere technicalities, namely that the Court of Appeal used the numbering of the relevant provisions as per the previous criminal code rather than the recently adopted code.⁵⁵ In fact, it can validly be argued that the Supreme Court affirmed the pronouncements of the lower courts, as the substance of the provisions referenced in the judgments did not vary from the old code to the new one.

Meanwhile, without awaiting the outcome of the retrial of the case by the Court of Appeal, the president decided to pardon the accused in the poisoning case, including not only the four aides and relatives prosecuted in Benin but also Talon and an alleged accomplice who had sought asylum in France. It is notable that the presidential pardon has no legal basis in the circumstances of this case where there had been no trial, no sentencing, and the persons involved were only in pre-trial detention. Following the president’s televised declaration of pardon, the public prosecutor announced that his office was going to request that the charges be dropped and the detained persons released because the presidential pardon had been granted ‘in the interest of the nation’. The accused persons were released after the pardon and before the Court of Appeal could hear the matter. The public prosecutor in acting the way he did argued that his duty was to uphold the public interest, and since the president’s pardon was granted ‘in the highest interest of the nation’, there was no longer any need to proceed with the matter before the Court of Appeal.⁵⁶ It must be noted that the prosecutor in this case had first refused to transfer the file to the Supreme Court, thus prolonging the detention of the accused for four months, stating, amongst other reasons, that he was awaiting instructions from the Minister of Justice.⁵⁷ On 11 August 2014, a reconstituted bench of the Court of Appeal of Cotonou corrected the material errors highlighted by the Supreme Court and merely upheld the initial appeal judgment. It is interesting to note that, on 6 November 2014, the Constitutional Court held that the Public Prosecutor of the Appeal Court of Cotonou had violated article 35 of the constitution, which requires that persons holding public offices ‘perform their duties with diligence’.⁵⁸

(p. 374) A number of Francophone countries in Africa have witnessed instances of the public prosecutor obviously abusing his powers particularly when actual or potential opponents to the incumbent government are involved, as has been illustrated above. An example from Benin is illustrated by the case involving former Minister of Relations with State Institutions, Alain François Adihou, who was remanded in pre-trial detention for almost three years. As the executive and Ministère Public failed to substantiate the initial charge of contempt of parliament, he was subsequently accused of embezzlement of public funds. The investigating judge ordered his release but the prosecutor had his detention renewed beyond the legal limits as the incoming government apparently resolved to use him as a scapegoat in its purported fight against corruption.⁵⁹ The minister was eventually released without trial for lack of evidence.

Such cases have also made the news in Cameroon since the inception of the Opération Epervier against corruption in 2004, as a result of which, several former and incumbent high ranking officials have been placed in pre-trial detention beyond the time prescribed by law and through the abusive and illegal acts of the prosecutor or investigating judicial officers.⁶⁰ In other instances, the Ministère Public was granted full access to the file, while counsel for the accused persons were denied such access throughout the pre-trial detention. In some cases, the prosecutor brought charges after the expiry of the initial detention order, or split up the initial charges to extend the detention.⁶¹ Officials involved were mostly either former ministers who fell out with the incumbent regime after they were believed to entertain presidential ambitions or had formed dissident political parties.⁶²

Similar trends have been seen in Côte d’Ivoire of the executive taking action against prosecutors for dissenting from or challenging the official position of the government. An illustration is the removal of the prosecutor of Abidjan for publishing an investigation report, which blamed the executive for failing to deploy enough security forces and the poor street lighting at the site of the fireworks on the 2012 Saint Sylvester’s Eve in the municipality of the Plateau. The stampede that occurred that night led to more than sixty deaths. The prosecutor’s televised statements contradicted Page Id: 374References(p. 375) the position taken by the Minister of Justice on the case. The government’s spokesperson had indicated that all necessary measures had been taken to prevent casualties, including deploying more security forces than needed.⁶³ It is worth remembering that the same prosecutor was in charge of cases involving several supporters and close allies of the former president Laurent Gbagbo, including his wife in the 2010 Post Electoral Violence case; in which the prosecutor was believed to have resisted instructions from the executive.⁶⁴ Importantly, a journalist who was known to be very close to the prosecutor and acted as his ‘unofficial’ communication officer, published a piece indicating that the list of pro-Gbagbo detainees freed by the prosecutor in December 2012, in the Post Electoral Violence case, was issued by the executive.⁶⁵ The Abidjan prosecutor’s determination to make public the findings of his investigations, which he surely knew were contrary to the views and instructions of the government in the cases concerned, eventually resulted in his dismissal.

The various case studies presented above share the common feature of disguising an abusive use of legally granted prerogatives under technicalities in order to interfere with the independent administration of justice. For instance, the Benin public prosecutor in the Talon case made a plausible technical point that he was acting in the interest of society as a whole. However, the problem here is that the basis of this argument is the motivation of the president. But the president could not have been motivated by public interest when he was the complainant in the case. Moreover, the confusion between the ‘interest of the nation’, which is a purely political concept with no legal basis, and the public interest protected by the prosecutor, dangerously threatens the independence of the prosecutor vis-à-vis the executive. This is where the contradictory position of the public protector becomes acutely manifest. The executive generally, and the Minister of Justice in particular, are responsible for preparing and implementing penal policy. This may include deciding between prevention, punishment, conciliation, and even other sanctions of a penal, administrative, or disciplinary nature other than prosecution. We have also seen that the Minister of Justice has the right to issue instructions or recommendations to the public prosecutor as part of this duty to determine and implement penal policy. The Minister, however, may not in any way intervene in the direction of criminal proceedings nor carry out the acts of prosecution himself. However, the challenge posed by this delicate situation is to determine which instructions and advice concerning penal policy are such that the public prosecutor in the exercise of his functions has the right to accept or disregard, and which instructions and advice are issued by the Minister as the hierarchical superior of the public prosecutor making compliance legally binding. In France, (p. 376) abuse has been limited by the new laws, which require that all ministerial instructions must be in writing and included in the case file. Even if this were introduced in Francophone Africa, it is doubtful that it would limit the ability of the executive to manipulate the processes for, as noted above, the executive through the CSM not only has the ability to control public prosecutors but also to control judges. However, the links between judges and public prosecutors, to which we shall now turn, also raises its own issues.

4.2 Relations with and independence from the judiciary

In the previous section, we saw how the executive in the management of penal policies generally, and the president, as guarantor of judicial independence, influence the way the public prosecutor discharges his functions. We also noted that in some instances judges appear to play a role in matters that are usually dealt with by the public prosecutor. It is now necessary to see the exact nature of this relationship and how it affects the ability of the public prosecutor to discharge his functions independently.

Unlike in the common law jurisdictions, constitutional provisions dealing with the judiciary in Francophone African constitutions use the word ‘magistrature’ when they refer to both public prosecutors and judges and usually treat the former more or less as part of the judiciary.⁶⁶ As we have seen, some of these provisions, especially those dealing with appointments, promotions, and removal from office, apply to both judges and public prosecutors. From the constitutional perspective, public prosecutors are part of the judiciary even if some of the constitutional provisions regulating the judiciary do not apply to them.

From an administrative and institutional perspective, public prosecutors are also part of a group of judicial officers known as the Ministère Public or Parquet, which could be considered as the equivalent of the Directorate of Public Prosecution in common law jurisdictions. The Ministère Public is composed of all judicial officers serving as prosecutors posted at the Supreme Court, Courts of Appeal, and first instance tribunals. Prosecutors of the Supreme Court and Courts of Appeal are known as ‘Procureur general’ or ‘Avocat general’, while those of first instance courts are called ‘Procureur de la République’. The terminology of ‘public prosecutor’ should therefore be understood as encompassing all members of the Ministère Public in jurisdictions adopting the French model of prosecution. Although the formulation is confusing, codes of criminal procedures and relevant laws stress the professional connection between the public prosecution service and the judiciary. An illustrative provision is that of article 6 of Benin’s Law on the Magistrature, which provides that ‘magistrats of the parquet are placed under the direction and control of their superiors and under the authority of the Minister of Justice’. There are similar provisions in Benin’s Code of Criminal Procedure. For instance, under Section II of the Code, which deals with the functions of the Procureur Général of the Court of Appeal, all Page Id: 376References(p. 377) prosecutors within his jurisdiction report to him on all cases being prosecuted. He may instruct them to initiate prosecution. Investigating police officers are also placed under his control. The Procureur Général has authority over all public prosecutors within the jurisdiction of the Court of Appeal and has the same hierarchical authority over them as does the Minister of Justice.⁶⁷

In many respects, the manner in which the public prosecutor discharges his functions is very similar to the way that a judge operates. As we have seen, his primary function is to initiate prosecution and to ensure the proper application of the criminal law. However, in doing so, the public prosecutor conducts prosecution for and against the accused, in the sense that he assesses all the evidence both militating for charging the accused or dropping charges against him. It is part of his duty to guarantee liberty, security, and freedoms, in much the same way as judges do.⁶⁸ This judicial role of the public prosecutor is even more evident within the framework of recent reforms granting increased powers to the prosecutor not merely to drop charges and discontinue prosecution but also in case of sufficient evidence, to mediate sentences, to propose more lenient sentences in exchange for remedial action by the accused, or alternative sanctions, which are ordinarily matters over which judges have discretion. Such powers have been adopted in the reforms in France and Senegal for instance.⁶⁹ Whilst such reforms appear to strengthen the independence of public prosecutors, their subordinate relationship to the Minister of Justice exposes them to external interference. Many Francophone African countries have laws similar to article 128(1) of the Code of Criminal Procedure of Cameroon, which states that the public prosecutor is a party to criminal proceedings before all criminal courts. And further that he must attend all hearings failing which the decision is void; may not be recused by the parties; and may not be condemned to pay costs.⁷⁰ The challenge this poses to the proper administration of justice is that the public prosecutor is vested with judicial powers while being a party to criminal proceedings in which he had previously acted as either an accuser or a mediator.

Another peculiarity of the relationship between the public prosecutors and judges in Francophone Africa is that both categories of judicial officers receive exactly the same training, usually at the national school for the training of judges. On graduation, they can be appointed either as judge or public prosecutor. What poses a particular threat to the good administration of justice is that the CSM can at any time appoint a public prosecutor as judge and vice versa. It is a practice which can easily be abused by the Page Id: 377References(p. 378) executive which retains different degrees of control over both judges and public prosecutors.

It can be said that the functions of the public prosecutor clearly make him a member of the judiciary, which is the organ of the state in charge of administering justice. As stressed earlier, the role of the prosecutor is to defend the interest of the public and that of society by protecting individual liberty, security, and freedoms, and ensuring that breaches of the criminal law are punished. In that sense, it should be understood that the public prosecutor may only discharge that duty through a legal entity that represents each individual member of society, and of the public. That institution is the state,⁷¹ or the Republic as seen from the civil law perspective. In many respects, the main client of the public prosecutor is the state.⁷² The question that arises is how the public prosecutor can defend the interest of society, the interest of the accused, and that of the state; and at the same time be part of the judiciary but work under the authority of the executive from which he may receive instructions regarding prosecution. The ensuing conflict of interests was at the heart of the ECHR’s disapproval of the French prosecutorial system. As we saw earlier, the ECHR held in the landmark cases of Medvedyev and Moulin, amongst others, that the concentration in the hands of a French prosecutor of such extended powers and conflicting interests does not meet the requirements for qualification as an independent judicial authority in terms of the relevant provisions of the European Convention on Human Rights. Be that as it may, the public prosecutor in Francophone Africa continues to remain in a paradoxical situation and it is not clear whether the reforms that have taken place in France will, as they usually do, influence the evolution of this important institution in Francophone Africa.

Having noted that reforms in France were prompted mainly by the European human rights system, a comprehensive review requires allusion to the impact of similar mechanisms with jurisdiction on Francophone Africa. In that regard, it is worth mentioning that cases of violation of fair trial rights have featured prominently in the jurisprudence of regional adjudicatory bodies such as the African Commission on Human and Peoples’ Rights (the African Commission), and the African Court on Human and Peoples’ Rights (the African Court). These bodies have had several opportunities to sanction inordinate delays or complete inaction in the prosecution of so-called ‘high profile cases’ including in African Francophone jurisdictions. As an illustration, while decisions of the African Commission on fair trial rights abound, the case of Mouvement Burkinabé des Droits de l’Homme et des Peuples v Burkina Faso is particularly notable. In the matter, the Commission found Burkina Faso to be in violation of amongst others article 7 of the African Charter on Human and Peoples’ Rights for delaying or denying, for fifteen years, the prosecution of human rights abuses perpetrated during the political upheaval experienced by the country in the 1990s.⁷³ Page Id: 378References(p. 379) An even more emblematic case is that of Gunme v Cameroon where the Commission found a breach of the independence of the judiciary and separation of powers on the basis of the Respondent State’s submission that the president of the republic and minister of justice were Chairperson and Vice-Chairperson of the Conseil Supérieur de la Magistrature respectively.⁷⁴ Although several other similar pronouncements of the Commission have alluded to states’ failure to allow independent prosecution, such decisions have yielded a modest impact on the domestic systems of African Union member states.⁷⁵ Furthermore, there has been no empirical evidence of their influence on the relative improvement resulting from recent reforms implemented in the prosecution systems in Francophone Africa.

The case of Norbert Zongo and Others v Burkina Faso in the African Court has also revealed how much influence the executive holds in the good administration of justice by using its superior hierarchical position to the prosecutor to prevent or delay the prosecution of the so-called ‘high profile cases’. This instance concerned the assassination in 1998 of prominent Burkinabé investigative journalist Norbert Zongo and three of his companions. At the time of his assassination, Zongo was about to release a report on cases of corruption and other crimes involving individuals in the inner circle of President Blaise Compaoré. In the fifteen years of investigations, no suspect was arrested and the actual perpetrators were never found. In the matter before it, the African Court found that the total of eight years’ duration of the domestic proceedings was unduly prolonged.⁷⁶ The Court further found that such a delay violated the applicants’ rights to have their cause heard as guaranteed under article 7 of the African Charter.

As in instances discussed earlier, the interest in the Zongo case lay in the role of the public prosecutor in the good administration of justice. To say the least, the prosecution of the Zongo case was marred with procedural flaws and serious fair trial rights violations. Amongst other notable unorthodox actions, it took the prosecutor five years to confront the main suspect and prosecution witness. The president’s brother, who featured as the main actor in the case, was heard only over two years after the formal investigation began. Moreover, the prosecution of the case was delayed for five years on account of the ill health of the main suspect who was however discharged immediately after his examination resumed. The prosecutor also chose to hear the ‘civil parties’, namely the journalist’s wife, only eight years after they filed an intervention suit and a few months before the end of the proceedings. Finally, the prosecutor decided to not undertake any further investigations after the initial charges against the main suspect were discontinued in 2006.⁷⁷ While the case was still pending and the offence was Page Id: 379References(p. 380) prescribed till 2016, the prosecutor simply froze the case until an application was filed with the African Court in 2011. Unfortunately, the African Court was arguably not bold enough to find the relationship between the prosecutor and the executive detrimental to an independent administration of justice as did the Strasbourg judges. That was despite the fact that the role of the prosecutor expressly arose as a main issue in the case.

Events subsequent to the March 2014 judgment of the African Court in favour of the applicants in the Zongo case are very revealing as to the role of the prosecutor and his acquaintances with the executive. In October 2014, Burkina Faso experienced a short popular revolution that led to the demise of the Compaoré regime. Most notably, the prosecutor in the Zongo case who was appointed as Minister of Culture and Tourism in the transition Cabinet, was forced to resign following two days of street protests accusing him of ‘freezing’ the prosecution of the case.⁷⁸

Compared with the African Commission, the Court is nascent. It remains to be seen whether its jurisprudence will have such a positive impact as that of its European or Inter-American counterparts in providing a supranational check and balance mechanism for the executive’s interference with the functioning of prosecutorial authorities across Francophone Africa.

5. Conclusion

A national prosecution system which is not completely independent of the other branches of government, especially the executive, is not an aberration in itself. Not only did Francophone African countries inherit this from their former European colonial masters, particularly France, but this civilian approach is still widely used in continental Europe. Nevertheless, the continuous use of this approach to prosecution, which in Europe itself is not considered beyond reproach, creates problems which the European progenitors of the model are continuously looking for ways to resolve. It may be argued that some of the reforms undertaken by African countries have not gone far enough to limit the inherent weaknesses of this approach to the good administration of criminal justice. It is particularly in the context of separation of powers and the checks and balances that this is designed to provide that the model of public prosecution in Francophone Africa is found wanting.

The weaknesses of the French model have been recognized in France itself and since the 1990s, serious efforts have been made to modernize it. Besides this, the possibility of recourse to the ECHR and other European judicial and quasi-judicial institutions have provided a reasonable safeguard against any abuses of the national prosecution system. Although similar systems have been in operation in Africa, they have arguably not (p. 381) reached the level of effectiveness required for ordinary citizens in Francophone Africa to utilize them when the executive abuses their national systems. This means that reform of the present system of national prosecution in Francophone Africa is imperative as international mechanisms are merely subsidiary to domestic systems. The need for such reforms is underscored by the fact that modern African constitutions in general, and those in Francophone Africa in particular, usually confer exorbitant powers on the executive branch of government, especially the president, or allow them to arrogate such powers to themselves with little in the way of effective checks against abuses of these powers. Even the entrenchment of important core elements of constitutionalism such as the separation of powers has not succeeded in guarding against the arbitrary abuse of these excessive powers by Africa’s imperial presidents. The present system of prosecutions which exposes public prosecutors to manipulation by the executive, as in the examples of Benin (which in many respects has one of the most modern and liberal Gaullist-style constitutions in Francophone Africa today) and Senegal, clearly shows that there is a need for public prosecutors to be made more independent of the executive.

It is not desirable to transform the office of public prosecutor into an independent branch of government. There are certainly important policy and theoretical reasons for not doing so. It will and should remain an institution that operates within the Ministry of Justice, but it must however be made autonomous rather than independent. In the light of this, there are a number of reforms that need to be introduced in Francophone Africa to enable this institution to discharge its critically important role in facilitating the good administration of justice and respect for the rule of law.

First, its role needs to be clearly and rationally stated and entrenched in the national constitutions and all the safeguards provided to protect judicial independence must apply to it. There is, for instance, no rational reason why it should not benefit from the same safeguards against arbitrary dismissals that are now presently reserved only to judges. This is particularly odd because any judicial officer who has undergone the necessary training can be appointed as judge or prosecutor at any stage of their career. Nevertheless, the regular practice of transfers between the offices of prosecutor and judge is highly undesirable and if anything, exposes these officers to executive manipulation. A judicial officer must be made to choose, either to be a prosecutor or a judge, and not both, even if only at different times dictated not by the officer but by the executive when it suits their convenience. All the constitutional provisions dealing with the CSM must be revised and one of the most important changes should be to exclude the president of the republic and his Minister of Justice from being members. There is also a need to limit the possibility of representatives, whether directly or indirectly appointed by any of the three branches of government, having a controlling majority.⁷⁹ Second, all the laws that often contain contradictory provisions dealing with issues such as the independence, hierarchical authority, and career management of public prosecutors must be harmonized. Third, a system of checks and balances must be put (p. 382) in place to ensure transparency in the decisions taken by the public prosecutor that allows the executive, the legislature, and any aggrieved citizen to challenge decisions made by the prosecutor. Fourth, whilst the Minister of Justice as the executive member responsible for laying down and implementing the government’s penal policy should, as indicated above, retain his position as the hierarchical superior of public prosecutors, all issues concerning their appointment, discipline, transfers, and promotion should be exclusively dealt with by a reformed CSM.

The role and functions discharged by public prosecutors on an African continent that is still struggling to cope with the rising tide of authoritarian resurgence is too important to leave in the hands of Africa’s notoriously unruly executives who have hardly been tamed by constitutionalism, separation of powers, and rule of law. It is contended that one of the best ways to consolidate constitutionalism and make the separation of powers meaningful and effective in Francophone Africa is to strengthen the office of public prosecutors along the lines suggested in this chapter.

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Mediapart, ‘Marafa Hamidou Yaya, le présidentiable encagé au Cameroun’ (April 2014) <http://blogs.mediapart.fr/blog/joel-didier-engo/150414/marafa-hamidou-yaya-le-presidentiable-encage-au-cameroun> accessed 25 August 2014
Multilateral Meeting organized by the Council of Europe, The Role of the Public Prosecutor’s Office in a Democratic Society (Themis No 2, Germany, Council of Europe Publishing 1997) <https://books.google.fr/books?id=A-m30iXoF0QC&pg=PA39&lpg=PA39&dq=the+role+of+the+prose (p. 384) cutor's+office+in+a+democracy+themis&source=bl&ots=LQ9yJiB198&sig=FPXstYLdmSJFN0iZgthFj_ReT3M&hl=fr&sa=X&ved=0CBQQ6AEwAGoVChMI6oKgo7TtyAIVR9MOCh1w6ADi#v=onepage&q=the%20role%20of%20the%20prosecutor's%20office%20in%20a%20democracy%20themis&f=false> accessed October 2015.
Nouvelle Tribune, ‘Affaires Patrice Talon: le Procureur Général transmet enfin les dossiers à la Cour Suprême’ (October 2013) <http://www.lanouvelletribune.info/index.php/actualite/une/16615-affaires-patrice-talon-le-procureur-general-transmet-enfin-les-dossiers-a-la-cour-supreme> accessed 25 August 2014
Oeil d’Afrique, ‘Côte d’Ivoire: Le procureur de la République subitement débarqué’ (2013) <http://oeildafrique.com/cote-divoire-le-procureur-de-la-republique-subitement-debarque/> accessed 25 January 2014
Organisation Internationale de la Francophonie (OIF), ‘La réforme des systèmes de sécurité et de justice en Afrique francophone’ (2010) <http://www.francophonie.org/La-reforme-des-systemes-de.html> accessed 6 May 2014
Raoul-Duval P, ‘Renforcer les droits de l’Etat pour présenter l’Etat de droit’ <http://www.lecercledeseconomistes.asso.fr/IMG/pdf/S13-Raoul-Duval-05.pdf> accessed 8 May 2014
République Française Ministère de la Justice, ‘La justice sous la monarchie’ <http://www.justice.gouv.fr/histoire-et-patrimoine-10050/la-justice-dans-lhistoire-10288/la-justice-sous-la-monarchie-11910.html> accessed 6 May 2014
Steve Biko Word Press, ‘Drame du Plateau: le procureur contredit le Gouvernement’ (2013) <http://stevebeko.wordpress.com/2013/01/07/drame-du-plateau-le-procureur-contredit-le-gouvernement/> accessed 25 August 2014
The Friends of Benin in the United States of America, ‘Angelo Houssou’s asylum case: A friend of the court view’ (2014) <http://www.fob-us.org/_angelo_houssou_s_asylum_case_%20a_friend_of_the_court_view> accessed 28 May 2014
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Wade M, ‘The Changing Role of European Prosecution’ (2005) 4 European Society of Criminology (ESC) Newsletter 3

Footnotes:

¹ See Pauline Guilhot et al, ‘Le Procureur de la République est-il un magistrat indépendant?’ (2012) ISTM 8–9 <http://www.montplaisir.dokeos.com/courses/CAMPUSISTM/document/Diplome_de_Comptabilite_et_de_Gestion/TRAVAUX_D_ETUDIANTS/DCG1LeprocureurdelaRepubliqueest_ilunmagistratindependant.pdf?cidReq=CAMPUSISTM> accessed 15 April 2015.

² See Université de Nantes, ‘Le Procureur de la République’ <http://www.droit.univ-nantes.fr/m2dp/upload/word/Expose_Procureur.doc> accessed 15 April 2015.

³ See Jean-Marie Carbasse, ‘Histoire du Parquet’ Equipe de recherche de l’Université de Paris II associée au CNRS et aux archives nationales (2000) 2 <http://www.gipjustice.msh-paris.fr/publications/histparquet.pdf> accessed 15 April 2015.

⁴ Carbasse (n 3).

⁵ ibid 4.

⁶ ibid.

⁷ ibid 5.

⁸ ibid.

⁹ See République Française Ministère de la Justice, ‘La justice sous la monarchie’ (7 February 2007) <http://www.justice.gouv.fr/histoire-et-patrimoine-10050/la-justice-dans-lhistoire-10288/la-justice-sous-la-monarchie-11910.html> accessed 15 April 2015.

¹⁰ See Organisation Internationale de la Francophonie (OIF), ‘La réforme des systèmes de sécurité et de justice en Afrique francophone’ (2010) 129 <http://www.francophonie.org/La-reforme-des-systemes-de.html> accessed 15 April 2015. See also generally, Council of Europe The Prokuratura in a State Governed by the Rule of Law (Council of Europe Publishing 1998).

¹¹ OIF (n 10) 133.

¹² ibid.

¹³ ibid 142.

¹⁴ ibid 144.

¹⁵ See Despina Kyprianou, ‘Comparative Analysis of Prosecution Systems (Part II): The Role of Prosecution Services in Investigation and Prosecution Principles and Policies’ (2008) 2 <http://www.google.bj/?gws_rd=cr&ei=CyPxUvqDpDb7AaekoDgAQ#q=D+Kyprianou+%91Comparative+Analysis+of+Prosecution+Systems+> accessed 15 April 2015.

¹⁶ See ibid 8.

¹⁷ See Guilhot et al (n 1) 8–9.

¹⁸ See Pierre Raoul-Duval, ‘Renforcer les droits de l’Etat pour présenter l’Etat de droit’ <http://www.lecercledeseconomistes.asso.fr/IMG/pdf/S13-Raoul-Duval-05.pdf> accessed 15 April 2015.

¹⁹ See Guilhot et al (n 1) 9.

²⁰ See, for instance, art 148 of the Code of Criminal Procedure of Benin.

²¹ See Codes of Criminal Procedure of Benin (n 20); Codes of Criminal Procedure Cameroon, arts 78 and 98; and Codes of Criminal Procedure Senegal, art 33.

²² See Kyprianou (n 15) 15.

²³ See Andrew Ashworth and Mike Redmayne, The Criminal Process (3rd edn, Oxford University Press 2005) 147.

²⁴ ibid.

²⁵ See Marianne Wade, ‘The Changing Role of European Prosecution’ (2005) 4 ESC Newsletter 3.

²⁶ ibid.

²⁷ See, for instance, art 129 of the constitution of Benin of 1990; art 134 of the constitution of Burkina Faso of 2009; art 37(3) of the constitution of Cameroon of 1996; and art 90 of the constitution of Senegal of 2010.

²⁸ See DCC 00 – 054 of 2 October 2000; DCC 95 – 027 of 2 August 1995, interpreting art 129 of the constitution on the compulsory visa of the CSM for the appointment of all magistrates, including judges and prosecutors. In the matter, the president refused to appoint the complainant to the Supreme Court after the CSM had issued a positive visa for her appointment and those of two other colleagues, whose visas were followed.

²⁹ See, for example, art 37(3) of the Cameroon constitution of 1996 which states: ‘The President of the Republic shall guarantee the independence of judicial power.’ Also see art 209 of the constitution of Burundi of 2005; art 140 of the constitution of the Congo Republic of 2002; and art 69 of the constitution of Gabon of 1991.

³⁰ See, for example, art 132 of the constitution of Burkina Faso of 1997 and art 71 of the constitution of Gabon of 1991 (amended in 1994, 1995, 1997, and 2000).

³¹ An exception is art 152 of the constitution of the Democratic Republic of the Congo of 2006 which in the composition of the CSM excludes the President and his Minister of Justice.

³² Art 126 of the constitution of Benin; art 5 of Loi portant organisation judiciaire en République du Bénin; art 103 of the constitution of Côte d’Ivoire of 2000.

³³ See, for example, art 141 of the constitution of Congo of 2002; art 109 of the constitution of Guinea of 2010; art 119 of the constitution of Niger of 2010.

³⁴ See, for instance, art 6(2) of the Décret No 95/048 du 8 mars 1995 portant statut de la magistrature in Cameroun; art 6(3) of the Loi organique No 92/27 du 30 mai 1992 portant statut des magistrats au Sénégal.

³⁵ See art 52 of the Décret No 95/048 portant statut de la Magistrature du Cameroun.

³⁶ See Joseph Djogbénou, La Gouvernance par l’exemple: contribution programmatique sur l’Etat de droit et la justice (vol 1, COPEF 2014) 151–2.

³⁷ See, for instance, Nicole Duplé, ‘Les menaces externes à l’indépendance de la justice’ AHJUCAF <http://www.ahjucaf.org/Les-menaces-externes-a-l.html> accessed 15 April 2015; Alioune Fall, ‘Les menaces internes à l’indépendance de la justice’ <http://www.ahjucaf.org/Les-menaces-internes-a-l.html> accessed 15 April 2015.

³⁸ See Djogbénou (n 36) 150–3.

³⁹ See ibid 152–3.

⁴⁰ Most if not all constitutions adopted in the 1990s or thereafter in Francophone Africa confer on the president of the republic the title of ‘premier magistrate’, which literally means first judicial officer of the country.

⁴¹ See in general Richard Cornes, ‘Reforming the Lords: The Role of Law Lords’ (1999) <http://www.ucl.ac.uk/spp/publications/unit-publications/42.pdf> accessed 7 May 2015; L Faggion, Les Seigneurs du droit dans la République de Vénise (Editions Slatkine 1998).

⁴² See, for instance, art 34 of the Code of Criminal Procedure of Benin and art 28 of the Code of Criminal Procedure of Senegal.

⁴³ See, for instance, art 3 of the Décret No 95/048 du 8 March 1995 portant Statut de la Magistrature du Cameroun and Loi Organique 92/27 du 30 mai 1992 portant Statut des Magistrats au Sénégal.

⁴⁴ See art 36 of the Code of Criminal Procedure of Côte d’Ivoire. On the independence of the public prosecutor in Côte d’Ivoire, see Kouable Clarisse Gueu, ‘L’indépendance du Ministère Public et le principe constitutionnel de la séparation des pouvoirs en Côte d’Ivoire’, draft paper presented at the African Network of Constitutional Law conference on Fostering Constitutionalism in Africa Nairobi (April 2007) <http://www.ancl-radc.org.za/sites/default/files/Article%20Ministere%20Public%20Definitif%20by%20Kouable%20Clarisse%20Gueu.pdf> accessed 25 April 2015.

⁴⁵ See art 134(1) of the Code of Criminal Procedure of Cameroon.

⁴⁶ Literally, written instructions—of the Minister of Justice or higher judicial officers—bind the public prosecutor even though he is free to make contrary submissions orally at the hearing.

⁴⁷ See Laws on the Status of the Magistrature, Senegal, art 6(2); Laws on the Status of the Magistrature Cameroon, art 3(3).

⁴⁸ See, for example, art 209 of the constitution of Burundi of 2005; art 68 of the constitution of Gabon of 1991; and art 118 of the constitution of Niger of 2010. However, some constitutions, such as that of Cameroon of 1996, art 37(2), limit the scope of this provision to cover only judges and not public prosecutors.

⁴⁹ For instance, in Medvedyev and Others v France App No 3394/03 (ECtHR, 10 July 2008) the ECHR for the first time decided that ‘the Public Prosecutor is not a judicial authority in the meaning adopted by the jurisprudence of the Court: as the Complainants stress, he particularly lacks independence from the Executive, to be qualified as such’. The ECHR confirmed and expanded its position by holding in Moulin v France App No 37104/06 (ECtHR, 20 November 2010) that the prosecutor must also be independent from the parties.

⁵⁰ See, for instance, Decision of the Court of Cassation of 10 March 1992; Decision of the Constitutional Council of 11 August 1993.

⁵¹ See Court of Cassation Decision 10-83674 of 15 December 2010.

⁵² See Afrimap, ‘Les Conseils Supérieurs de la Magistrature ou Organes équivalents en Afrique: Brève présentation comparative de leurs pouvoir et composition’ <http://www.afrimap.org/english/images/research_pdf/CSM_en_Afrique.pdf> accessed 27 May 2015.

⁵³ See ‘Demande d’extradition de Patrice Talon: la France dit non à Yayi Boni’ (Construire le Bénin, 2013) <http ;//www.journal-adjinakou-benin.info/?id=4&cat=1&id2=20661&jour=05&mois=12&an=2013> accessed 15 April 2015.

⁵⁴ See ‘Décision du Juge Angelo Houssou au sujet de la tentative d'empoisonnement et tentative de coup d'état: Un non lieu qui suscite étonnement et stupéfaction’ (Le blog de la presse béninoise, 18 May 2013) <http://www.pressedubenin.over-blog.com/article-decision-du-juge-angelo-houssou-au-sujet-de-la-tentative-d-empoisonnement-et-tentative-de-coup-d-eta-117879313.html> accessed 15 April 2015; ‘Angelo Houssou’s Asylum Case : A Friend of the Court View’ (The Friends of Benin in the United States of America, 11 February 2014) <http://www.fob-us.org/_angelo_houssou_s_asylum_case_%20a_friend_of_the_court_view> accessed 15 April 2015.

⁵⁵ See ‘Décision de la Cour suprême à propos de l’affaire Talon : des prisonniers victimes de procédures’ (La Croix du Bénin, 13 May 2014) <http://www.lacroixdubenin.com/decision-de-la-cour-supreme-a-propos-de-laffaire-talon-des-prisonniers-victimes-de-procedures/> accessed 15 April 2015; Patrice Talon, ‘Bénin : affaire Patrice Talon, la Cour suprême casse les arrêts de la Cour d’appel de Cotonou’ (Koaci, 2014) <http://www.koaci.com/benin-affaires-patrice-talon-cour-supreme-casse-arrets-cour-dappel-cotonou-91512.html> accessed 15 April 2015.

⁵⁶ See ‘Pardon de Yayi à Talon/abandon de poursuite dans les affaires « empoisonnement et coup d’Etat »: les explications du procureur général Gilles Sodonon’ (Fraternité, 2014) <http://www.news.acotonou.com/h/24200.html> accessed 15 April 2015.

⁵⁷ See Léonce Gamaï, ‘Affaires Patrice Talon : les dessous de la non-transmission à la Cour Suprême des dossiers du pourvoi’ (La Nouvelle Tribune, October 2013) <http://www.lanouvelletribune.info/index.php/actualite/une/16483-affaires-patrice-talon-les-dessous-de-la-non-transmission-a-la-cour-supreme-des-dossiers-du-pourvoi> accessed 15 April 2015; Marcel Zoumènou, ‘Affaires Patrice Talon : le Procureur Général transmet enfin les dossiers à la Cour Suprême’ (Nouvelle Tribune, October 2013) <http://www.lanouvelletribune.info/index.php/actualite/une/16615-affaires-patrice-talon-le-procureur-general-transmet-enfin-les-dossiers-a-la-cour-supreme> accessed 15 April 2015.

⁵⁸ In a petition filed by a citizen, the Court found that more than three months to transfer the appeal file to the Supreme Court constituted an inordinate delay in breach of the diligence duty prescribed by art 35 of the constitution. See DCC 14–185 of 6 November 2014 <http://www.24haubenin.info/IMG/pdf/dcc_14-agbodjan.pdf> accessed 15 April 2015.

⁵⁹ See in general Alain Francois Adihou, Kérékou, la Lépi et moi (published by author 2014).

⁶⁰ While the law in Cameroon—just as in most Francophone Africa jurisdictions—provides for a six-month pre-trial detention, which is renewable once, persons indicted were held in detention for three to four years as the prosecutor split up charges severally, brought new charges after the expiry of the legal period of detention, or froze the prosecution. The cases involving Hamidou Yaya Marafa, Jean-Marie Atangana Mebara, and Lydienne Yen Eyoum are illustrative of such practices. See ‘Une avocate franco-camerounaise détenue sans titre depuis trois ans’ (20 minutes fr, 19 March 2013) <http://www.20minutes.fr/societe/1121291-20130319-avocate-franco-camerounaise-detenue-titre-depuis-trois-ans> accessed 15 April 2015; Christophe Bobiokono, ‘Affaire Atangana Mebara: le détournement de 1,5 milliards F cfa était fictif’ (21 October 2011) <http://www.christophe.bobiokono.over-blog.com/article-affaire-atangana-mebara-le-detournement-de-1-5-milliard-fcfa-etait-fictif-86972217.html> accessed 15 April 2015.

⁶¹ See Jacques Doo Bell and Joseph Olinga, ‘Me Alice Nkom : Affaire Marafa, un procès suspect et regrettable’ Camerbe (2012) <http://www.cameroon-info.net/stories/0,37047,@,me-alice-nkom-laquo-affaire-marafa-un-proces-suspect-et-regrettable-l-executif-e.html> accessed 15 April 2015.

⁶² See Joël Didier Engo, ‘Marafa Hamidou Yaya, le présidentiable encagé au Cameroun’ (Mediapart, April 2014) <http://www.blogs.mediapart.fr/blog/joel-didier-engo/160415/journee-internationale-du-prisonnier-politique-marafa-hamidou-yaya-le-presidentiable-encage-au> accessed 15 April 2015.

⁶³ See ‘Drame du Plateau: le procureur contredit le Gouvernement’ (Steve Beko, 2013) <http ;//www.stevebeko.wordpress.com/2013/01/07/drame-du-plateau-le-procureur-contredit-le-gouvernement/> accessed 15 April 2015; Fulbert Koffi, ‘Côte d’Ivoire: le procureur de la République subitement débarqué’ (Oeil d’Afrique, 2013) <http://www.oeildafrique.com/cote-divoire-le-procureur-de-la-republique-subitement-debarque/> accessed 15 April 2015.

⁶⁴ Assane Niada, ‘Justice ivoirienne: les dessous du limogeage du procureur de la République’ (Imatin, 14 January 2013) <http://www.imatin.net/article/politique/justice-ivoirienne--les-dessous-du-limogeage-du-procureur-de-la-republique_6590_1358147743.html> accessed 7 May 2015.

⁶⁵ William Gbato, ‘Limogeages des trois procureurs: des révélations fracassantes’ (Abidjan, 16 January 2013) <http://news.abidjan.net/h/448983.html> accessed 15 April 2015.

⁶⁶ See, for example, art 37(3) of the Cameroon constitution of 1996; art 82 of the Congo DR constitution of 2006; arts 136 and 141 of the constitution of Congo Republic of 2002; art 109 of the constitution of Guinea of 2010; and art 90 of the constitution of Senegal of 2010.

⁶⁷ See art 35 of the Code of Criminal Procedure of Benin.

⁶⁸ See Université de Nantes, ‘Le Procureur de la République’ <http://www.droit.univ-nantes.fr/m2dp/upload/word/Expose_Procureur.doc> accessed 15 April 2015; Michel Laurain, ‘Le Procureur de la République est-il une autorité judiciaire?’ Notes de synthèse, Institut d’Etudes Judiciaires (2012) <http://www.iej.unistra.fr/uploads/media/Corrige_M.Laurain_Note_de_synthese_procureur_de_la_republique.pdf> accessed 15 April 2015; ‘Pour la Cour de Cassation, le Parquet n’est pas une autorité judiciaire’ (Le Petit Journal, 16 December 2010) <http://www.lesactualitesdudroit.20minutes-blogs.fr/archive/2010/12/16/pour-la-cour-de-cassation-le-parquet-n-est-pas-une-autorite.html> accessed 15 April 2015; ‘Le rôle du parquet : Le dossier de la Cour de cassation’ (Le Monde, 16 December 2010) <http://www.libertes.blog.lemonde.fr/2010/12/16/le-role-du-parquet-le-dossier-de-la-cour-de-cassation/> accessed 15 April 2015.

⁶⁹ For Senegal, see art 32 of the Code of Criminal Procedure of Senegal.

⁷⁰ See arts 129–31 of the Code of Criminal Procedure of Cameroon.

⁷¹ See ‘Le Ministère Public’ (Burundi) <http://www.justice.gov.bi/spip.php?rubrique72> accessed 15 April 2015.

⁷² ‘C’est quoi, un procureur?’ (Journal d’un avocat, 23 October 2007) <http://www.maitre-eolas.fr/post/2007/10/23/766-c-quoi-un-proc> accessed 15 April 2015.

⁷³ See Mouvement Burkinabé des Droits de l’Homme et des Peuples v Burkina Faso Communication 204/97 (2001) AHRLR 51 (ACHPR 2001).

⁷⁴ See Gunme and Others v Cameroon Communication 266/03 (2009) AHRLR 9 (ACHPR 2009) paras 209–12.

⁷⁵ See, for instance, Frans Viljoen and Lirette Louw, ‘The Status of the Findings of the African Commission: From Moral Persuasion to Legal Obligation’ (2004) 48 Journal of African Law 1; Frans Viljoen, International Human Rights Law in Africa (Oxford University Press 2012) 339–42; Frans Viljoen and Lirette Louw, ‘State compliance with the recommendations of the African Commission on Human and Peoples’ Rights 1994–2004’ (2007) 101 The American Journal of International Law 1.

⁷⁶ See Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema dit Ablasse, Ernest Zongo and Blaise Ibouldo & Le Mouvement Burkinabé des Droits de l’Homme et des Peuples v Burkina Faso App No 013/11 Preliminary Ruling (ACtHPR, 21 November 2013) para 106.

⁷⁷ See ibid paras 152–7.

⁷⁸ See amongst others, ‘Guy Zongo, à propos de l’assassinat de son père, Norbert Zongo’ (Le Reporter, 18 December 2008) <http://www.reporterbf.net/index.php/periscope/item/33-guy-zongo-a-propos-de-l-assassinat-de-son-pere-norbert-zongo> accessed 15 April 2015; ‘Burkina Faso General takes over as Compaoré resigns’ (BBC News Africa, 1 November 2014) <http://www.bbc.com/news/world-africa-29851445> accessed 15 April 2015; Mathieu Bonkoungou and David Lewis, ‘Street protests in Burkina Faso prompts minister’s resignation’ (Reuters, 25 November 2014) <http://www.reuters.com/article/2014/11/25/us-burkina-politics-idUSKCN0J91XT20141125> accessed 15 April 2015.

⁷⁹ See further Charles Manga Fombad, ‘Appointment of Constitutional Adjudicators in Africa: Some Perspectives on how Different Systems Yield Similar Outcomes’ (2014) 46 Journal of Legal Pluralism and Unofficial Law 249.

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