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.

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ATT the Reformer
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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.

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And Reforms Sorely Needed?
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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

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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.

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Comment
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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