Benin report - Institut Africain de la Gouvernance

CHAPTER THREE: DEMOCRACY AND POLITICAL GOVERNANCE__________________________________________________________________________229. Some provisions of the constitution, however, make the independence of thejudiciary relative. In terms of Articles 127-130, the president of the republic isalso the head of the Executive. He guarantees the independence of the courtsand appoints judges. The constitution gives the JSC – which is the body thatdisciplines judges – the role of assistant and adviser to the president. Theminister of justice shares the vice-chairmanship of the JSC together with thepresident of the Supreme Court. He nominates judges for appointment, andinitiates and conducts investigations into disciplinary matters concerningjudges brought before the JSC. The strong presence of the Executive on theJSC and the subordinate role of the JSC – the body that guarantees andpreserves the independence of the judiciary – are serious violations of theprinciples of the separation of powers and the independence of the judiciary.230. It is thus very appropriate that the Constitutional Court has endeavoured tomake up for the gaps in the conditions governing the independence andirremovability of judges. The Constitutional Court has ruled that the approvalof the JSC be sought for the appointment of judges (ruling 2002-012 of 19February 2002). By doing so, it has forced the president of the republic and hisCouncil of Ministers to endorse the decision of the JSC with regard to theappointment of judges or be in violation of the constitution. This is verysignificant and demonstrates the full extent and meaning of the independenceof the judiciary from a legal point of view.231. It must, however, be stated that the independence of the judiciary isundermined by poor working conditions – despite the recent increase in thesalaries of judges – and the crying need for staff at all levels of judicialadministration. Court officials have to file and investigate hundreds of caseseach week. The accounts department is more than four years behind with theinspection of accounts, while prisons are dilapidated, overcrowded (thepopulation is more than three times the number originally intended) and full ofprisoners awaiting trial (more than two-thirds of the prison population) – oftenheld under inhuman conditions.232. The High Court of Justice is paralysed by a complex and highly politicisedprocedure and an inability to decide on what sanctions to apply in the casesbefore it. The ambiguities and loopholes in the applicable laws sometimes leadto different interpretations by the Constitutional and Supreme Courts, causingthem to accuse each other of going beyond their respective mandates.Box 3.6: The case of the embezzled legal feesA pointer to the poor conditions of Benin’s justice systemThe case of the embezzled legal fees – in which about 100 legal officers, court registrars andtax revenue collectors were accused of embezzling legal fees – is an indication of the woefulworking conditions of judicial staff.Investigations revealed the existence of a network of shady officers who had worked out away to improve their working conditions, and make a little extra on the side, by using illegalmethods like claiming higher costs for transport used when carrying out their duties.99