ARBITRARY DETENTION: ATT ORDERS ACQUITTED MAN TO

C O N F I D E N T I A L SECTION 01 OF 02 BAMAKO 000509

SIPDIS

E.O. 12958: DECL: 01/13/2019
TAGS: PGOV PHUM KDEM ML
SUBJECT: ARBITRARY DETENTION: ATT ORDERS ACQUITTED MAN TO
STAY IN PRISON

BAMAKO 00000509 001.2 OF 002


Classified By: Political Officer Peter Newman, Embassy Bamako,
for reasons 1.4 (b) and (d).


1. (C) Summary: On May 27, the Supreme Court of Mali reversed
the conviction for embezzlement of Mamadou Baba Diawara, the
former CEO of one of Mali's largest banks, and ordered that
he and an accomplice be released from prison. The Minister
of Justice, on orders from President Amadou Toumani Toure
(ATT),intervened and instructed that under no circumstances
was the Supreme Court's order to be enforced. The Minister
of Justice filed a legally questionable appeal of the Supreme
Court's decision, replaced the Public Prosecutors at the
Supreme Court, and ordered the arrest of the prison warden
who released Diawara's accomplice pursuant to the Supreme
Court order. Diawara remains in prison and in legal limbo.
Although ATT's intervention may have been a well-intentioned
swipe against corruption, the means he used do not set a good
example for judicial independence. End Summary.

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Bad Business Deal or Bad Court Decision?
--------------


2. (SBU) In 2007, in one of the rare prosecutions and
convictions for corruption in Mali, Mamadou Baba Diawara, the
CEO of Mali's Habitat Bank (BHM),and Ismaila Haidara, the
CEO of the West African Investment Company (WAIC),were
sentenced to life imprisonment and 15 years imprisonment,
respectively. The trial court in Segou found Diawara and
Haidara had colluded to defraud the BHM of 7 billion FCFA (14
million USD) through a sham real estate loan that was never
intended to be repaid.


3. (SBU) On May 27, 2009, the Supreme Court of Mali's
Criminal Division reversed the convictions. The Supreme
Court found there was no evidence that Diawara and Haidara
intended the real estate deal to fail and determined there
was no evidence proving the undersecured loan was fraudulent
as opposed to merely bad business judgment. The Supreme
Court decision did not return the case to the lower courts
for retrial, but decided on the merits in favor of the
accused. Once the decision was handed down, the Chief Public
Prosecutor at the Supreme Court, Cheickna Detteba Kamissoko,
issued a routine order commanding the immediate release of
Mamadou Baba Diawara and Ismaila Haidara.


4. (SBU) A review of the ample press coverage devoted to the
Diawara scandal reveals some indications that the Supreme
Court's decision was in less-than-good faith, which would not
be surprising given the wealth of the defendants and the
judiciary's legendary corruption. For unexplained reasons,
the Public Prosecutor failed to keep the Minister of Justice
informed of developments on the case, as was his normal
practice. The case was added to the May 27 docket at the
very last minute and while ATT was in Europe, catching many
of the relevant players off guard. The order to release
Diawara and Haidara was seemingly signed in great haste, and
by a different prosecutor than the one upon whom the task
would usually fall. Finally, there have been persistent
rumors - unconfirmed but deemed plausible by two Embassy
sources - that key magistrates at the Supreme Court,
including the justices, accepted a bribe totalling 200
million FCFA (400,000 USD).

-------------- ---
Haidara Released; Minister of Justice Intervenes
-------------- ---


5. (SBU) Upon hearing of the Court's decision, the Minister
of Justice, Maharafa Traore, immediately intervened and
ordered that under no circumstances was the Supreme Court's
decision to be enforced. Although this message did not reach
the prison in Segou before Diawara's accomplice Haidara had
been released, Diawara was kept locked up. Traore also
contacted Kamissoko at the Supreme Court, and ordered him to
file an immediate appeal of the decision. Unfortunately,
there is no "appeal" available to the government of a Supreme
Court decision under Malian law. The government has cited
Articles 547-549 of the Code of Criminal Procedure to justify
their appeal, but those sections apply only to convicted
persons who argue that new evidence proving their innocence
has surfaced after their trial.


6. (C) Malian jurists have almost universally declared the
government's attempt to appeal the decision baseless. Hameye
Foune Mahalmadane, the Secretary General of the SYLIMA
magistrate's labor union, called the continued detention of
Diawara "a grave violation of human rights." Adama Diarra
Sidibe, author of Law and the Practice of Law in Mali, told
the Embassy that Diawara's detention is utterly arbitrary and
extrajudicial. Both men emphasized that if the Supreme Court

BAMAKO 00000509 002 OF 002


Justices accepted a bribe, the government's sole recourse is
against the Justices for corruption. There is no provision
in Malian law for ignoring or appealing a Supreme Court
decision simply because it is suspected of being the wrong
decision or obtained through fraud.

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Accomplices or Scapegoats?
--------------


7. (SBU) On June 3, 2009, the President's Council of
Ministers fired Chief Prosecutor Kamissoko and the Supreme
Court's General Counsel, Moussa Keita. Both were replaced by
men hand-selected by the Minister of Justice. On July 16,
Lieutenant Sekouba Doumbia, the warden of the prison in Segou
who released Ismaila Haidara before the Minister of Justice
reached him by phone, was placed under arrest for aiding and
abetting in the escape of a convict. Doumbia's arrest came
shortly after he had defended himself in the press, claiming
he had done nothing except obey a valid release order signed
by the Supreme Court Chief Public Prosecutor.

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Enter Politics
--------------


8. (C) ATT's interest in the case could be political.
Diawara, a long-time critic of the President, is suspected of
authoring "ATT-cratie: The Promotion of a Man and his Clan,"
a scathing critique of ATT published anonymously during the
presidential elections in 2007. In a press conference on
June 8, ATT defended the Minister of Justice's intervention
in the case on the grounds that he had not been kept properly
informed about the development of the case. ATT argued this
was a procedural irregularity and that he, elected by the
people of Mali, had a responsibility to maintain a vigilant
watch on the actions of the judiciary.


9. (C) Meanwhile, Yaya Sangare, a National Assembly deputy
from the majority ADEMA party and a former participant in the
Embassy's International Visitor's Program, used the National
Assembly's powers of oversight of government to call Maharafa
Traore to the National Assembly to explain the steps he had
taken. Sangare's questions, presented to Traore and his
fellow deputies, focused on separation of powers and the
increasing interference by the executive in the affairs of
the judiciary. However, on July 2, the day that Traore
appeared in the National Assembly building, Sangare
"suspended" his request for questioning. In a meeting with
the Embassy on July 21, Sangare confirmed that he withdrew
his questions because he had been placed under tremendous
pressure not to embarrass the government in such a
"sensitive" case.

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Comment: One Step Forward, Three Steps Back
--------------


10. (C) There is no good solution to the current situation.
It is highly probable that Diawara and Haidara embezzled 14
million dollars from BHM. It is equally probable that the
Supreme Court accepted favors of some kind in exchange for
acquitting Diawara and Haidara. ATT may be acting for
personal reasons, or he may be fed up with corruption and the
apparent impunity in which it takes place. Regardless of his
motives, ATT must tread carefully, for he finds himself in
the untenable position whereby Diawara is imprisoned on his
order alone. While ATT cannot be blamed for not wanting to
let a guilty man go free, the ramifications of arbitrary
detention go beyond this one case.


MILOVANOVIC