COSMETIC CHANGES IN STORE FOR THE MALIAN JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 02 BAMAKO 000666 SIPDIS E.O. 12958: DECL: 10/16/2019 TAGS: PGOV KDEM KJUS PHUM ML SUBJECT: COSMETIC CHANGES IN STORE FOR THE MALIAN JUDICIARY REF: A. BAMAKO 509 ¶B. BAMAKO 375 Classified By: Political Counselor Peter Newman, Embassy Bamako, for reasons 1.4 (b) and (d). 1.(SBU) Summary: On September 22, President Amadou Toumani Toure (ATT) announced sweeping reform of the judiciary during his address to the nation on Mali's 49th anniversary of independence. The proposed structural reforms are badly needed: they include scrapping the arbitrary Justice of the Peace program prevalent in rural Mali and increasing the number of trial and administrative courts in under-served areas. Yet, merely structural changes will do nothing to cure the judiciary's crippling lack of legitimacy in the eyes of the Malian people, so long as problems of judicial independence and corruption remain unaddressed. End Summary. -------------- ATT the Reformer -------------- ¶2. (SBU) On September 22, President Amadou Toumani Toure (ATT) used the occasion of Mali's 49th anniversary of independence to deliver an address to the nation in which he laid out some of his plans for the final three years of his second term in office. While touching a variety of subjects, including the end of the Tuareg rebellion, the return of the Family Code to the National Assembly for a second reading, and planned electoral reforms, the most specific pronouncement concerned a comprehensive plan for reforming the Malian judicial branch, long considered broken and corrupt by the Malian people. ¶3. (SBU) The structural reforms proposed make some progress toward addressing significant deficiencies in Mali's judiciary. The most welcome element of ATT's reform proposal is the long-promised abolition of Mali's Justice of the Peace system, which operates in those rural areas not served by a municipal trial court. Mali's Justices of the Peace have long been criticized for having too much power, as the powers of investigation, prosecution, and judgment are combined in one individual appointed by the state. Although the decisions of Justices of the Peace are technically open to appeal, in practice few rural Malians have the resources to do so. ATT's proposal involves replacing the Justices of the Peace with 42 new trial courts to be established throughout the country's rural areas. Assuming there are enough magistrates and judges to staff these new courts, this reform will eliminate the most arbitrary element in the Malian judiciary. ¶4. (SBU) A second component of ATT's reform project involves expanding the number of appeal, administrative and specialty courts. Currently, Mali is served by three courts of appeal and three administrative courts, with one of each located in Kayes, Bamako, and Mopti. During his address, ATT correctly emphasized that access to these courts is difficult for Malians of limited means not living within those three localities, and either involves long travel or hiring an out-of-town attorney with whom the client has limited contact. To address this concern, ATT proposed increasing the number of appeals and administrative courts to six, adding Segou, Gao, and Sikasso. Similarly, the number of commercial courts is to be increased to six, and the number of labor courts increased to 11. Finally, ATT proposed the creation of 53 "children's" courts, although it is unclear from his address what types of cases these courts would hear. -------------- And Reforms Sorely Needed? -------------- ¶5. (C) While welcome, ATT's proposed structural changes fail to address the most critical failures of the Malian judiciary -- subtle executive influence, the absence of any means for the judiciary to enforce its own judgements, and corruption. Judicial independence is guaranteed by the Malian constitution, but in practice, the government maintains influence over the judiciary through the Minister of Justice's statutory powers over appointment, promotion, onward assignments, and disciplinary proceedings of magistrates. Although direct executive interference with the judiciary is rare, the power of the Minister over the future careers of magistrates likely has a subtle impact on the judiciary's willingness to tackle sensitive cases, such as the prosecution of corrupt government agents. In a conversation with the Embassy earlier this year, Judge Adama Yoro Sidibe asserted that this executive influence is such that even Supreme Court justices "tremble" before the Minister of Justice. In addition, the judiciary lacks any means to enforce its own judgments. The case against former BAMAKO 00000666 002 OF 002 bank CEO Mamadou Baba Diawara highlights the judiciary's difficulties in politically charged cases. Not only did the Minister of Justice unilaterally order the continued detention of a man whose conviction was overturned by the Supreme Court, but he punished those he deemed responsible by firing the prosecutors involved in the case at the Supreme Court (Ref. A). ¶6. (C) The judicial system is highly corrupt, with under-the-table payoffs an accepted manner of influencing the outcome of a case. Judge Sidibe, while describing the extent of corruption in the judiciary, stunned PolOff by declaring, "Even me, I am corrupt." Malian magistrates attribute the widespread corruption to salaries that pale in comparison with those of private attorneys, as well as social expectations concerning the obligations of a judge to family and friends. Certainly, the tremendous power judges and prosecutors wield over the lives of litigants provides an unparalleled opportunity for corrupt practices. It should be noted that the Malian judicial system is not unique in West Africa. Afrobarometer cites the share of Malians saying it would be unlikely that authorities would enforce the law if a top government official committed a serious crime at 51 percent, which is close to the median among its West African peers. ¶7. (C) Even in lawsuits where the outcome is not influenced by bribes, it can be influenced by politics. The Malian judicial system is very slow, with many defendants spending years in prison before being brought to trial. It would be more accurate, however, to say that the Malian judicial system works only as slowly as it wants, as it has proven itself capable of acting expeditiously when a case catches the attention of the political classes. In a meeting with the Embassy on September 10, an official of the anti-slavery association TEMEDT contrasted his organization's civil suits on behalf of slavery victims, for which not a single hearing had been held in 2009, with the lightning speed with which defendants were arrested and convicted following a riot at Bamako's March 26 stadium in 2007. -------------- Comment -------------- ¶8. (C) The fact that much more needs to be done should not detract from applauding the changes about to be instituted. The judicial reforms proposed by ATT are necessary and laudable. In particular, the abolition of the Justice of the Peace system will be a very important step towards eliminating a source of arbitrary and unaccountable decision-making in the Malian judiciary. It is an effort for which ATT deserves credit. Similarly, increasing the number of tribunals will bring justice closer to the people the judiciary is supposed to serve, and will ease the burdens Malians face in making their cases heard. It is fair to note, however, that the reforms will likely be only slowly implemented. The Malian government is currently facing considerable budgetary stress, and the cost of nearly doubling the number of operational courts in the country will be steep. Moreover, the government has faced considerable difficulty with the magistrates' unions this year (Ref B). Balancing the financial demands of new infrastructure with the demands for better pay by the magistrates is a challenge the government will be hard pressed to meet. ¶9. (C) Even assuming the reforms are implemented, they will fail to cure the sick-man of Malian justice. The Malian judiciary lacks legitimacy in the eyes of the Malian citizen not only because it is slow or because there are not enough courthouses, but because the judges and prosecutors are perceived as corrupt and authoritarian. Political interference in high profile cases also prevents the judiciary from tackling some of the most important issues for Mali's continued political development, such as official corruption. ATT's proposed reforms are an excellent step, but difficult tasks remain ahead. MILOVANOVIC