A National Event of International Dimension
The near total of the States of the Ohada zone answered present to the invitation of the UIHJ and the National Chamber of judicial officers of Gabon, as well as several States of Africa, Europe and America: Algeria, Burkina Faso, Benin, Cameroon, Chad, Congo, France, Gabon, Hungary, Ivory Coast, Niger, Mali, Quebec, Poland, Romania, Senegal, Switzerland, and Togo, i.e. nearly 200 fellow-members. The demonstration was of a nature of a national event. In addition to the high patronage of the President of the Republic, the opening ceremony, which was held in the City of the Democracy, was honored by the presence of the Prime Minister, Jean Eyeghe Ndong, and of the Minister for justice, Martin Mabala. It was very largely relayed by the media. Were also present the vice-president of the Senate, the first president of the Audit Office, several members of the Government, members of the constitutional and diplomatic bodies, as well as high-ranking magistrates and civil servants. One must particularly greet the exemplary organization of the demonstration by the Gabonese national Chamber and its president Eliane Oberdeno, superintendent of the project. It was in this capacity that our colleague intervened in first. She recalled that it is the permanent council of the UIHJ of November 2007 which decided to entrust her with organization of the first meetings. She expressed her deep recognition and that of all the corporation of the judicial officers of Gabon to the President of the Republic to have supported the project and to have agreed to sponsor this forum. “This implication proves how much the high ranking authorities of our country feel honored with the choice made by the UIHJ on Gabon to shelter these very first Africa-Europe days of the judicial officers.” she declared. Mrs. Oberdeno then gave the orientations constituting the framework of the program to come: on the one hand, to make the diagnosis of the exercise of the occupation of judicial officer in contact with social and legal realities of the African countries. On the other hand, to tackle questions relating to the social status of judicial officers and the rules of ethics and deontology to which they must be compelled. “Is to say the extent of the task which awaits us throughout our work” commented on the president. And to continue: “With the UIHJ, we wanted to offer to our members a meeting of give and take. We thus await some edifying talks on behalf of our European fellow-members and soon hope to see improvements in the national and international procedural laws, of course in the context of the rooting of the Rule of law in Africa”. At the conclusion of her speech, Eliane Oberdeno wished to all a pleasant stay in Gabon and to benefit fully from “the legendary hospitality of Gabon and its people”.
Then it was with the turn of Jacques Isnard, President of the UIHJ, to make his introductory speech. “Undoubtedly these first Africa/Europe meetings constitute the greatest event of international dimension ever organized apart from our congresses” he said. “They constitute a major prowess which results in the gathering in this beautiful capital of Libreville, of representatives of more than 20 countries, culturally different but animated by the same will: that to better know for a better understanding within a common framework: exerting the same trade”. Jacques Isnard then praised the Training Unit of African judicial officers (Ufohja), “jewel only judicial officers were able to create” by indicating that Libreville would accommodate its 27th session. “I am filled with wonder with each training seminar by the work of my African fellow-members and I am particularly sensitive to the efforts they make, in terms of time and economic investments, to take part in training” he declared while paying homage to the continuous support of the National school of procedure of Paris, gradually making it possible “to hoist the African judicial officers on a comparable level with that of the other legal professions”. The president of the UIHJ then evoked the project of a Uniform act of a harmonized statute of judicial officer in the Ohada zone. “One measures all the advantages which would confer - in a logic of effectiveness - an occupation of judicial officer who would exert his functions in an identical way in all the States” he pled while considering it regrettable that the Council of Ministers of Ohada has for the moment rejected this proposal. Jacques Isnard praised then our colleague Eliane Oberdeno for the completed work in the preparation of these meetings and recalled that in her capacity as president of the national Chamber of the judicial officers of Gabon, she was an “ambassador of choice for Gabon”. Lastly, he thanked the Prime Minister and the Minister for justice whose presence during the opening ceremony “raises the prestige of our demonstration”. He indicated to them “how much we appreciate the interest that the State and undoubtedly even his Excellency the president of the Republic bring to our profession in general and with our fellow-members of Gabon in particular”.
Then Martin Mabala, Minister for Justice, said how pleased he was to speak at the time of this ceremony. He estimated that the selected topic was justified largely in the African context and that, “in this sense and in comparison with the diversity of the cultures represented here coming from different backgrounds, I can predict the richness of your exchanges which, we all hope, will come to useful conclusions for the future”. On the topic of training, the Minister for Justice indicated that he did not spare any effort “to multiply the occasions aiming at training the legal personnel including of course judicial officers, both in Libreville and other parts of the country”. Then he congratulated the president on the UIHJ for all the efforts developed in this organization, specifying there that its members would found there “a framework impossible to circumvent for the blooming and the development of their profession”. On the internal plan, Martin Mabala recognized the “enormous difficulties” facing judicial officers as regards citizens, the major one being the tariff of acts. “There too I can ensure you that my services, in collaboration with those of the other qualified government departments will deploy their know-how so that a reform intervenes quickly” he did engaged by specifying that he had set up a technical commission to follow-up the work of reform of the law on judicial officers and that he was awaiting its first conclusions.
Jean Eyeghe Ndong, Prime Minister, then spoke. He indicated that the president of the Republic, El Hadj Omar Bongo Ondimba, who was abroad, would have wished to be present at this demonstration but that the tasks related to his high position did not enable him “to have the distraction to share with you these pleasant moments”. Then the Prime Minister wished, in the name of the President of the Republic and on his behalf, to welcome all the delegations coming from Europe and Africa to take part in this conference which constitute “an important stone in the construction of your union and generally of the specific legal institutions of our respective States”. He then addressed his congratulations to the national Chamber of the judicial officers of Gabon and to its president, Eliane Oberdeno, “who has worked for our country which shelters the first Africa-Europe meetings”. On the topic of the conference, Jean Eyeghe Ndong indicated that it is the duty of the judicial officer to express with efficiency the very authority of the State, authority which applies to all citizens, without distinction. “It is in that that the service of legal decisions by judicial officers and enforcement agents concerns the continuity of the action of the public power” he said, and to continue after having evoked the evolutions in progress both in Europe and in Africa: “the first Africa-Europe meetings of the judicial officers of Libreville are consequently a major event in that they oblige us to reflect upon the institutional evolutions in progress”. He ensured that he considered as a duty to transmit to the President of the Republic the conclusions which will intervene at the terms of the meetings. Then he wished a pleasant stay to all the participants.
One could not be faithful in the care taken to describe this prestigious opening ceremony without indicating that it was held within the imposing framework of the City of human rights, and that it was adorned by a brass band, a theater company and a choral society, whose qualities were greeted by all. Lastly, a film directed by Rene Duperray, general secretary of the UIHJ, on the occupation of judicial officer in Gabon was presented and was the subject of many comments, both for its cinematographic quality and its teaching virtues.
Originally African Law
The conference took the shape of six workshops which aimed at hearing from experts and theorists, while seeking to cause the many reactions of a vast and extremely attentive public.
The first workshop had as a subject “Diversity and hierarchy of the social and legal order taking into consideration African law and tradition”. The chairman was Yacine Sene, vice-president of the UIHJ. Joseph John-Nambo, professor at law at the University Omar Bongo Ondimba, made a brilliant presentation on the topic. For him, it is necessary to change the way of thinking to understand the originally African law in its logic which places the function before the beings and their contributions. When the logic of the originally African law is understood, one cannot be astonished by the resistances opposed to the execution of the plans and the laws to the development of which the populations were not associated with and which the States, external authorities to Africa, would nevertheless like to impose. When one has understood, said professor John-Nambo, the logic of the original African law, and the African judicial officer who actually works in a legal pluralism, one can perfectly understand how African coherences and solidarity are articulated. To understand the contradiction of involved logics is not certainly enough to solve the problems arising from their meeting through social and legal order. But whoever neglects to understand it can be assured to fail. “It is thus necessary to make the required effort while remembering that to understand the originally African law, it is not enough to think them different, it is necessary to think differently” concluded professor John-Nambo.
Then Gaba Dos-Reis, president of the national Chamber of the judicial officers of Togo, evoked the rights of the colonizer and the custom law through examples. In the field of law of succession, in several customs of Togo, women do not have the right to inherit land. The modern right in Togo, made to help them, “goes half way” by reinstating women in their capacity as regards urban land while it is still forbidden for them to inherit the rural land. The evoked reason is that rural lands are arable; they constitute a rural inheritance which should in no way be transferred by the means of a marriage to the family of the husband. As regards evictions, Togolese judicial officers are accustomed to warning the traditional chief of their presence in his county. “Any person carrying out a legal decision without addressing to the traditional chief, even when assisted by the police force, will not be able to carry out his act. It should be recognized that in Togo traditional chiefs are the guarantors of the customs and habits recognized as such by the constitution” she declared. Our colleague concluded by indicating that she always asked her fellow-members not to forget the tradition, “because after all we are Africans and we should not forget our origins whatever the influence of the modern law in the country”.
Then, Moussa Dan Kome, judicial officer in Niamey (Niger), intervened to share his experience. He quoted the case where “resurgence of deep ancestral customs is recurrent”. In his example, a traditional chief had reinvested himself in the town of Maradi of the prerogative to make land donations to close relations in spite of a land register, an urban community and a town hall. He however estimated to have historically the right to do so. He had thus distributed land belonging to a company which had then gone bankrupt. The sale of the land would have made it possible to satisfy the unfavorably treated employees and the Court of Appeal had authorized the seizure of the property which had been sold to another company. But several families, who occupied the land on authorization of the chief - since deceased - refused to leave the premises. At the term of a long procedure, the families were finally evicted. That generated their incomprehension and many articles in the press.
The 2nd workshop had as a subject “the identification of immovable goods”. It was placed under the chair of Honorine Nze Biteghe, Judge in Libreville.
Jerome Okemba Ngabondo, judicial officer (Congo), pointed out that, in the traditional law, land cannot be the object of a property but only of a right of use. Certain owners neglect to register their good and to make known officially their property. One also deplores the insufficiencies of the services of the land register. Thus according to a study conducted in 2006 by the president of the expert geometricians of Ivory Coast, nearly 90% of urban lands would not be registered. “The un-registered immovable does not enter the universe of the civil law” precisely underlined our fellow-member. And when an immovable good is not registered, it is difficult to obtain the property title. Thus not being able to clearly identify the owner of such real estate, the judicial officer often hesitates to embark in the procedure of its seizure. “Many citizens unfortunately cannot benefit from important bank loans for lack of document or title guaranteeing the payment of the loan” he regretted. But in conclusion of his intervention, he however declared that a tendency becomes apparent in the majority of the States and that two kinds of measurements are taken: incentive measures to simplify registration procedures or to reduce their cost for a certain time, and prospective measures, to set up the projects of national land registers.
Rosine Bogoré Zongo, president of the national Chamber of the judicial officers of Burkina Faso, evoked the situation in her country. She indicated that following the example of Congo, proceedings of simplification were opened to be in conformity with the Uniform act and to thus make it possible to obtain a land title. In 1996 was created the National Land Agency made up of all lands and assimilated real estate goods located within the limits of the national territory and those acquired by the State and other communities abroad. This principle of the membership of land in the State reveals a rupture with the tradition according to which landowners are entitled in time to affect the grounds to whoever they want. But when land is not divided into lots, the tradition and practice always allow that landowners intervene, in the form of a disguised sale, in which the “official report of palaver tree” intervenes. This procedure consists in going to the prefecture building with the landowner who will admit having granted the lot free. After this recognition, sacrifices - of chicken and dolo (millet beer) - are performed on the land to formalize the property. When these preliminary usual formalities are established, it is necessary to contact the administrative authorities to make observations while inviting the village representative who knows well the zone, then the family who will give the certificates, and so on. The file is then lodged with the receiver of the Agency.
The Heroism of African Judicial Officers
“Obstacles to enforcement” constituted the topic of the 3rd workshop, placed under the chair of Honoré Aggrey, permanent secretary of the UIHJ for central and Western Africa.
Hortense Bankolé de Souza, president of the national Chamber of the judicial officers of Benign, quoted two cases of obstacles to enforcement of legal decisions in Benin due to the political authority. The first case goes back to the revolutionary period going from 1988 to 1991, i.e. the time when Benin was under a Marxist-Leninist regime. Enforcement of legal decisions was almost impossible, being in civil, commercial, land or other matters. Judicial officer were constantly under threat and the profession itself was threatened of suppression. The judicial officer who obtained or received for enforcement a legal decision was still to submit it to the Central Popular Public Prosecutor's Department in order to obtain the proper enforcement visa. The second case goes back to just a year ago. Shortly after its accession to power, the current government decided on October 12th, 2007 during a Council of Ministers to suspend all enforcement of legal decisions relating to evictions because of demolition in urban or suburban environments, of the suspension of the instructions of cases relating to Land litigations and hanging in front of jurisdictions, and finally of the creation of a adequate mechanism for a peaceful and equitable regulation of these litigations. By this decision taken without preliminary discussion with the actors of justice, says our colleague, the high ranking authority becomes not only an obstacle to the enforcement of legal decisions but denies the principle of separation of powers by getting involved in the Judiciary and deprives it from a part of its power, in particular the capacity to judge certain cases on the one hand and that to carry out legal decisions on the other hand. At the conclusion of a long arm wrestling, during which the judicial officers felt threatened in their safety, the seized Constitutional court returned a decision by which the suspension decision was declared unconstitutional. Unfortunately, regrets the president of the Chamber of Benin, things are still not restored, because of a memorandum of April 18th 2006 prohibiting the chiefs of police from helping judicial officers by requisition of the Prefect.
Then it was with the turn of Elysée Eldjimbaye Mbaihoudou, president of the national Chamber of the judicial officers of Chad, to evoke a particularly serious obstacle of which he was victim two years ago. Following an attachment on a bank account, he was asked by the Prime Minister to retrieve this procedure immediately. Estimating to have committed no fault he refused. The same day the Minister for Justice signed his dismissal by decree, based on a letter of the Prime Minister prohibiting the seizure on the aforementioned accounts and mentioning the state of emergency, the country being in period of war. This dismissal, our fellow-member told us, was taken regardless of the statute of judicial officers which provides that a dismissal can only intervene on proposal of the national Chamber after having heard the interested party and having ruled as a disciplinary committee. After having taken advice from several African fellow-members and the president of the UIHJ, Elysée Eldjimbaye said to us to have seized the administrative chamber of the Supreme Court for purposes of suspending the coming into force of the decree carrying his dismissal by calling upon the violation of decree 50 B of January 31st, 2001 relating to the statute of the judicial officers of Chad, the violation of constitutional standards, the obvious interference of the executive in the operation of the judicial power in violation of the principle of the separation of powers, and the violation of article 29 of the Uniform Act on enforcement procedures which primarily says that the deficiency or the refusal of the State to provide help during enforcement engages its responsibility (subparagraph 3 of the said article). Fortunately, the Supreme Court recognized the ground of the request and declared admissible in the form the request for suspending the decree.
An action aiming at cancelling the decree has since been lodged at the Supreme Court and is still in process. And our fellow-member, with great courage, to conclude under a salvo of applause: “Ladies and gentlemen see the kind of treatment that one holds for us in the course of our duties in our country. But we do not give up. It belongs to us to fight for the construction of a Rule of law, so that there is a space of justice and security, in free exercise of the occupation of judicial officer. The bet is not easy, but, says one, to a valiant heart, nothing is impossible”.
Djibril Agoudatcha, judicial officer in Lomé, treasurer of the national Room of the judicial officers of Togo, as for him, reported facts which happened 12 years ago in Lomé. A company had been condemned to pay an important sum at a bank. The aforementioned company, which had filed opposition, continued its activities in spite of a declaration of bankruptcy. Once the enforceable decision obtained upon the opposition procedure, our fellow-member proceeded with the closing of two of the four stores. By the time he closed the remaining stores, the first two had been re-opened. While trying to close them again, our fellow-member and his team were victims of an aggression orchestrated by men in outfit. He was then convened by the president of the court with the bank manager, then by the presidency of the Republic. After having listened to his account, the Head of the State ended up congratulating him for his courage and addressed his remonstrance to the president of the court. “Sometimes we need a little temerity to get respect in the exercise of our profession, especially in Africa, and it returns to us to fight to gain our space and our life” concluded our fellow-member.
Florentin Mba Menié, judicial officer, general secretary of the national Chamber of the judicial officers of Gabon, intervened in his turn, to report a procedure of attachment on a bank account which proceeded in 2006. The bank between the hands of which the seizure had been made had declared that funds had been blocked. Once the certificate of uncontested claim had been obtained, the banker however stated that he had no funds. The enforcement judge condemned the bank to pay the confined sums, and the bank finally paid these sums. Another bank which had been the subject of a similar proceeding had chosen to transfer the funds with its customer on simple presentation of a request from a Court. There still, the bank was condemned to pay the confined sums.
These cases illustrate the great difficulties that judicial officers are confronted with in the exercise of their function and the tenacity, courage, even heroism, they show daily.
Montesquieu and Sheik Hamidou Kane
The 4th workshop approached the topic of “10 years of application of the uniform act of July 1st, 1998 on the simplified procedures of debt collecting and of enforcement procedure”. It was placed under the chair of Jean-Michel Rouzaud, judicial officer in Montpellier (France) and President of the National School of Procedure of Paris.
Apollinaire Ondo Mve, Gabonese Judge, launched out in a very complete presentation of the treaty of Ohada and the uniform act of July 1st, 1998. First he evoked the reasons for the creation of the treaty signed on October 17th, 1993 in Port-Louis. He also pointed out the principle of the uniform acts, which are texts voted by the countries that prevail on national legislations of the countries of the zone. He also presented the Common Court of Justice and Arbitration (CCJA), charged with litigations resulting from the application of the Ohada Law. Then Mr. Ondo Mve swept the two books forming the uniform act of July 1st, 1998 while specifying their broad outlines. The first book deals with orders for payments procedures. The second relates to enforcement procedures. He then evoked what represents in his eyes the limits of the Ohada reform to consider some prospects. Thus, he regrets the silence of the texts on the possibility to combine an order for payment procedure with a garnishment order. For him, “the order for payment procedure dos not guarantee the payment of the debt that it sanctioned, therefore it is hard to conceive that the judge who could deliver such an order to pay is not able to authorize conservative measures”. On the CCJA, he wonders whether, whereas this jurisdiction must rule in fact and in law, i.e. the cases at first degree, the decisions rendered by the Courts of Appeal of the States parties are still fully enforceable. “The question remains open, he estimates, the treaty not having even specified the suspensive character of the appeal in front of the CCJA”. Concerning the prospects, Mr. Ondo Mve estimates initially that it is necessary “to reinforce the capacities of the jurisdictions which must have a suitable organization facilitating the good management of the dispute of the execution”. He regrets a too great rigidity of the mode of nullities of the Ohada law. “It is necessary to insist on the opinion of the CCJA which estimated that nullity must be called upon so much so that it does not seem possible for the judge to raise it automatically”. On the matter of the simplified procedures of debt collecting, he thinks that it is possible to simplify them more and that “if one could write the texts organizing these grounds for appeal with a maximum of clearness that could avoid many lawsuits”. Mr. Ondo Mve brilliantly completed his masterly intervention by quoting in turn Montesquieu (“the Spirit of the Laws”) and Sheik Hamidou Kane (“the Ambiguous Adventure”).
Then, Aloyse Ndong, president of the national Chamber of the judicial officers of Senegal, proceeded with evaluating ten years of application of the procedure of order for payment in the Ohada law. He chose to center his intervention on suggestions of reforms which “would bring more to this procedure”: the person entitled to initiate such a procedure, the quality of the information to the debtor, and the precise determination of the times relating to the contest of the procedure. On the first topic, for the Senegalese president, article 4 of the uniform act on debt colleting and enforcement states that a request can be deposited by the applicant or his representative authorized by the law of each Member State to represent him in justice. However, in certain national legislations, any company must constitute a lawyer in front of the court of jurisdiction to know of litigation, both as a request or as a defense. Such is the case in Senegal. “To impose on a company in difficulty to constitute a lawyer and thus having to make with sometimes very high fees to enable it to quickly recover its debts for its survival is certainly an obstacle to the freedom to choose its representative or agent but also to the survival of a company in difficulty” notes our fellow-member. Thus he considers that it should be useful to reform the law to make it possible to the applicants for the procedure to freely choose their representatives or to be able to introduce themselves their request. In this direction, “other law professionals like judicial officers or internals lawyers within businesses, are perfectly able because having sufficient competences to initiate such procedures and to lead them to their ends”.
On the question of information, Aloyse Ndong raises that the debtor will be informed only after to be able to react. The debtor must be very precisely informed. For that purpose, the uniform act provides that the service must be made by extra-judicial document without other provisions. “When it comes to extra-judicial documents, our reaction as judicial officers is to consider that these are served by judicial officers” comments our fellow-member. But he wonders about the interpretation which could be made and on the danger that a notification by registered letter could represent whereas “most of the population is illiterate”. For him, the physical contact of the judicial officer has no equivalent “to explain to the debtor the whereabouts of this procedure, sometimes in a local dialect, if this debtor is not informed and illiterate”.
Lastly, on the time for contesting the order for payment, article 12 sub-paragraph 2 of the uniform act lays out that if the attempt at conciliation fails, the jurisdiction rules immediately on the demand even in the absence of the debtor having filed the contestation. He wonders about the range of the word “immediately”, in particular when the debtor shows up.
“It is possible to think that the litigants to the lawsuit could ask and profit from remands to answer the conclusions of their adversaries, which would be likely to lengthen the lawsuit and to sacrifice the principle of celerity which is the basis of the order for payment procedure” said the president of the Senegalese chamber. This is why “a reform which would fix a reasonable one month delay for the seized jurisdiction would certainly solve the problem” he concluded.
The Trap of the Interminable Dispute
Alain Ngongang, vice-president of the national Chamber of the judicial officers of Cameroon then treated topic of garnishments. Garnishments, he states, are measurements having for finality to make inalienable the tangible or intangible movable goods of the seized debtor, whether those are owned by him or by a third party. “They are thus at the same time measures of precaution against the possible insolvency of the debtor and the means of pressure to lead him to voluntarily pay off his debt”. Overall our colleague recognizes after one decade of implementation “the relevance even the effectiveness of the measures introduced into this field and which, in a context of globalization, seem to adapt perfectly to the new economic and social conditions”. However, modifications of certain provisions seem essential. For him, these insufficiencies, which “concern both the form and substance”, constitute “sometimes deficiencies, sometimes insufficiencies”. Under the deficiencies, Alain Ngongang considers it regrettable that certain special seizures (seizures of aircraft or ships) did not lead to specific provisions. He also notes that the uniform act makes a distinction within the disputes between the restoration and other incidents, without more precision. “But it would have been useful for these provisions to relate to the reduction and limits which can be incidents resulting from a garnishment” he judges. As for the mode of nullities, whether relative or absolute, our fellow-member calls for a codification by the Community legislator. Under the insufficiencies, the Cameroonian vice-president deplores “the iniquity of the procedure of conversion into full seizure” of which he regrets the length of the deadlines. In addition, he considers that certain provisions relating to garnishments which “wording confuses both academics and law practitioners”. Thus, article 79 of the uniform act enacts that the act of denunciation of the official report of garnishment of debts must contains a copy of the authorization of the jurisdiction or title in virtue of which the seizure is practiced. Taking into account varied, contrary and even contradictory interpretations that causes this term “contain” and in spite of the position of the jurisprudence which seems today to privilege a broad meaning, it would be judicious to rewrite this article 79 like some others in a clearer way, declares our fellow-member. Then, he denounces “the trap of the interminable dispute” which he regards as “a legal aberration”. The Ohada text provides that the nullity of the seizure for lack of form or substance other that the exemption from seizure of the goods included in the seizure can be required by the debtor until the sale of the seized goods. “The debtor makes use of it as a lethal weapon to discourage or destabilize the creditor even if he knows that his dispute is lost in advance; at least all actions will be suspended for a few weeks, a few months even a few years” he regrets.
Jean-Claude Olombi, judicial officer in Brazzaville (Congo) was to replace on the spot Mr. Keita (Mali), prevented. Our eminent fellow-member, former president of the national Chamber of the judicial officers of Congo, and author of a very recent work on the occupation of judicial officer in Congo, showed his great capacity of synthesis. Jean-Claude Olombi counted three aims by the Ohada legislator when adopting the uniform act on the debt collecting and enforcement: humanization of procedures, rebalancing of the rights between creditors and debtors, and the valorization or the revalorization of the enforceable title. In ten years of application, he estimates that some of these objectives were reached and advances some suggestions. According to him, it would be advisable to institute an enforcement judge to concentrate disputes relating to enforcement between the hands of only one judge. He estimates that it would be necessary to add to the list of enforceable titles that established by a judicial officer as regards unpaid checks. He also considers unsuited the legal schedules to carry out a legal decision: “let us not forget that we are in a disparate Africa. If one begins the enforcement at 8 a.m. it is obvious that the shepherd will be able to disappear with his cattle”. To finish, our fellow-member also proposed to shorten certain times, in particular the grace or the communication of documents periods or the declaration of the seized third party (five months for the first and forty-eight hours for the second and third).
An Extraordinary Opportunity for Africa and an Example for the World
Mathieu Chardon, judicial officer (France) and 1st secretary of the UIHJ then proceeded to a summary report of this workshop. For our fellow-member, the treaty of Ohada is a model for Africa and an example for the world. He insisted on the importance of the treaty which falls under a process of globalization of the law and is an example of integration. For the 1st secretary of the UIHJ, the Ohada zone is characterized by a common language and legal cultures, which allows to create a legal area more quickly and more easily than in Europe, where great diversities of languages and legal cultures constitute as many ramparts difficult to circumvent. Ohada is thus “an extraordinary opportunity for Africa and an example for the World”. The judicial officers are the essential wheels of this uniform act. The fundamental role of these experts holds for them a natural place in the process of revision which is in hand, following the example that occurs from now on in Europe where the European institutions only start to understand that one cannot legislate without the experts. “You, African judicial officers, must now help Ohada to go further so that the uniform act on enforcement can continue its work of harmonization to the service of justice, economic operators and citizens” indicated Mathieu Chardon. And addressing to his African fellow-members, he finished his remarks while saying: “Your deep engagement, your great reactivity and your proposals honor you. They honor your respective countries. They honor Africa. They honor the occupation of judicial officer in the world because you contribute by your work and your implication to the installation of a harmonized profession at world level”.
The 5th workshop had as a subject “the social status of the judicial officer” and had as a chairman Adrian Stoïca.
Hortense Bankolé de Souza, president of the national Chamber of the judicial officers of Benin spoke in first. She deplored that in Benin the National Social Security only deals with civil servants and only concerns retirement pensions. Nothing is thus planned for judicial officers and it is the same in the majority of the other African countries. “Many Judicial officers had to work all their life and died while working” she regrets. As for private insurances, can they be trusted?
For several years, the national Chamber of the judicial officers of Benin has thought of the creation of a solidarity fund. The working group on Social welfare of which she is a member is occupied undertaking a feasibility study relating to the creation of a social security, a social solidarity fund and a legal booklet as regards insurance and pensions. “This study is sufficiently advanced but, while waiting for its concretization in a few years, we must absolutely find the means of putting an end to precariousness of African judicial officers in this field” indicated the Beninese president. For Aloyse Ndong, the social status of the judicial officer sends us to the social coverage of which he can profit. The judicial officer, because he exerts a liberal profession, does not profit from the social coverage organized and regulated by the States via social welfare institutions. Like his Beninese colleague, he thinks that the judicial officers must organize themselves their social coverage failing to use the social institutions of welfare set up by the State. The president of the Senegalese Chamber has recalled that for a few years the UIHJ calls for this sensitizing through meetings organized in Africa. “It remains with us, heads of African delegations to take our responsibilities and to have a debate on the question on the level of our national organizations” he proposed. He indicated that regarding Senegal, the Council of Judicial officers had elected representatives on the level of each area or province. “Our conviction is in fact that everyone will not adhere immediately, the essence being to start with a core which certainly will involve others who will be convinced of the expected results” he says.
Francis Guépin, member of the board of the UIHJ, in charge of this matter for the UIHJ, indicated that the UIJH estimated of its moral duty to consider this painful situation and to propose lines of thinking. He recalled that since 2006 a public awareness campaign was launched. First of all he recalled the situation in France by mentioning that the French system covers the totality of risks (disease, temporary or permanent disability). This mode gives the judicial officer and the whole of his/her family a financial compensation in the event of death, and finally allows the fellow-member who wishes to take a well deserved retirement to obtain the payment of a relatively comfortable monthly pension. For our fellow-member, the question arises of knowing if this system is transposable in the African continent and in the countries which are present today. But, according to him, “one should not initially want to embrace all: it seems to me that the totality of the branches of social protection would be an error. It is advisable to show wisdom and moderation and to concentrate your efforts on the covering of the decease risk”. Concerning the feasibility of this protection, Francis Guépin specified that it was necessary to record a will of adhesion and in addition an irrevocable adhesion and that failing this no insurance company would get involved. Concerning the number of members, he called for the African solidarity to make it possible for all the countries to claim a cover. “I believe that today the time of the reflection has ended and that it is necessary to start actions” he concluded.
Rigorous Ethical and Disciplinary Rules
The 5th workshop dealt with ethics. Adrian Stoïca was the chairman. Thierry Guinot, judicial officer in Paris and author of a work on the subject presented an intervention on the topic: “the need for providing the installation of rigorous ethical and disciplinary rules”. “One can only benefit from a situation through its constraints” he explains us. The function of judicial officer, like any other function, can last only because it is useful, because the profession is credible and because it proposes high quality services. These three implications constitute the base of any reflection on the future of the profession. However from these requirements rise a necessary discipline and regulating modes. “One can even say that the degree of success will be directly proportional to the degree of rigor, and finally the level of remuneration will be function of the level of quality of the services and of the level of reputation of the practitioners” our fellow-member estimates. In such a system, it is the profession which deals with its own monitoring, with the advantages that it implies but also its disadvantages. In order to maintain a high level of credibility, the public prosecutor must be able to intervene both at the stage of the monitoring and when it comes to sanctions; because this double degree of control, which represents an additional security for the public, also guarantees each professional against any risk of arbitrary on behalf of his peers. “Rigor - when it aims to the wellbeing of all - should not be felt like a burden, but like a means, as well as technology which also comprises constraints while improving an activity” continues Thierry Guinot, to conclude that “the construction of an ethic and disciplinary unit must take place in a deductive way, i.e. on the basis of the principles posed at the same time by the law and the defined objectives, to draw from them the necessary measures in the form of elements of organization and regulation”.
Then Mr. Diallo (Niger) intervened, replacing Emmanuel Minoungou (Burkina Faso), prevented. He indicated some specificities of his country on ethics. The judicial officers must act in any circumstance with moderation and limit themselves in particular to the only actions and necessary steps to achieve the goal of the claimant. They can act neither for themselves nor for their collateral relatives or their allies until the sixth degree. Under sanction, they have the obligation to inform the minister of justice if they want to exert a certain number of extra activities: secretary of agricultural cooperative, literary or artistic activities, chairman or member of an association or teaching activities.
Lastly, Mr. Makossoto, president of the national Chamber of the judicial officers of Congo indicated that there is no code of conduct in Congo. But the law of 1992 instituting the occupation of judicial officer in his country envisages and enacts various ethical rules. For example in its article 24 the law lays out that the national Chamber has the role of determining the respectability, the morality and the probity of the members of the profession. In its article 27, it envisages the role of the regional chambers, amongst which the role of maintaining all principles of probity, honesty, moderation, and confraternity. He adds that it also has the role of ensuring the monitoring and the honor that the profession need, and to establish with regard to the habits of the profession as well as relations of judicial officers between them and with the customers a regulation which will be subjected to the approval of the Minister for Justice. The law does not envisage relations of judicial officers between them, judicial officers with clients and citizens, judicial officers with judges or professionals of the other liberal professions but one can find some rules here and there. “We have the chance in Congo to have the first judicial officers who were already member of the house of justice, either as former clerks or as past enforcement agents and who had already an experience of the relationship with Judges and citizens and told us on the way of maintaining relations between fellow-members, judges and citizens” explains our fellow-member. He concluded his intervention by indicating that there was a great need for training in Congo so that ethical rules could really be taught to the judicial officers.
Recommendations of Libreville
To complete these two very rich and dense days, Francoise Andrieux, judicial officer (France) and Jérome Okemba Ngabondo presented the recommendations resulting from the seminar.
Recommendation 1
Considering that difficulties of identification and lack of access to the sources of information on real estate constituting an obstacle with the realization of the mission of the judicial officer,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend to the African States members of the Ohada zone the installation of a land register in order to facilitate the identification and the physical determination of immovable goods as well as the publication of the related rights.
Recommendation 2
Considering that the judicial officer is an auxiliary impossible to circumvent and impartial in the enforcement of legal decisions,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend to the African States members of the Ohada zone,
a) To guarantee the protection and the free exercise of the profession by the judicial officers in the enforcement of legal decisions;
b) To ensure the effectiveness of the separation between executive and judicial powers.
Recommendation 3
Considering that the uniform act on the organization of the simplified procedures of debt collecting and enforcement has been implemented for ten years already,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend to the Member States of the treaty of Ohada, for the amendment of the uniform act on the organization of the simplified procedures of debt collecting and enforcement,
a) The creation of a judge specialized on disputes on enforcement,
b) The installation of standard times for enforcement.
Recommendation 4
Considering that the absence of social status does not guarantee the future of the judicial officer as a liberal and independent professional,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend
a) To the African States members of the Ohada zone, to equip judicial officers with a social status to ensure them not only respect, dignity and confidence but also to preserve them from need and risk,
b) To the national chambers of judicial officers, to immediately lay the stakes of a global system of social coverage for their members.
Recommendation 5
Considering that training remains a sure pledge for the perpetuation and the blooming of the occupation of judicial officer,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend
a) To the Member States of the treaty of Ohada, to support the national chambers in their training program for the judicial officers,
b) To the International union of the judicial officers, the National school of procedure of Paris and the Training Unit of the African judicial officers, to continue to promote the permanent training of judicial officers of the Ohada zone.
Recommendation 6
Considering that the function of the occupation of judicial officer proceeds within a framework which preserves a balance between the rights of all parties,
Us, participating in the first Africa Europe meetings of the judicial officers,
Recommend to the African members States of the Ohada zone the adoption of a code of ethics worked out by the judicial officers of this zone.
In conclusion, Jerome Okemba declared that “the adoption of the code of ethics will be used as spinal column of the uniform Statute of the judicial officers of the Ohada zone. Indeed, in comparison with article 2 of the treaty of Ohada, we can admit that there is no legal obstacle with the adoption of a uniform statute of the judicial officers more especially as this one constitutes a significant improvement within the framework of the integration of the people wanted by the African Union”.
Then the closing ceremony followed. Eliane Oberdeno thanked all the speakers for their contributions and the participants for the interest which they showed in the works, as the many debates which they started testified. The president of the Gabonese chamber particularly thanked the President for the Republic for his support to the conference, as well as the Prime Minister and the Minister for justice for their presence. She also thanked the UIHJ to have chosen Gabon as the location for the first Africa Europe meetings of judicial officers. In his turn Martin Mabala, Minister for justice, declared himself satisfied of the debates and promised that he would give an account of those to the President of the Republic. Lastly, Jacques Isnard recognized the historical character of the 1st Africa Europe meetings of judicial officers. He was grateful towards the President of the Republic for his support for the conference. He greeted Eliane Oberdeno and her board for the immense and extraordinary work completed and the impeccable organization of the seminar. President Isnard also thanked all the speakers for the quality of their presentations, proof of the great evolution of African judicial officers and their dynamism. Lastly, he thanked all the participants and declared closed the 1st Africa Europe meetings ... in waiting of the 2nd edition...
And to pleasantly end up the journey in Gabon, many fellow-members and colleagues took part in an organized excursion at more than 200 kilometers from Libreville, in Lambaréné, the native village of President Eliane Oberdeno, on the other side of the equator. Lambaréné is famous in the whole world for the hospital that established a certain Doctor Albert Schweitzer who - no doubt about it - was also himself a passionate expert of Africa Europe meetings!
