Historical Pan-African Seminar in Johannesburg On 18 And 19 October 2007

The Essential Role of the African Judicial Officers in the Implementation of the Rule of Law

In May 2001, at the time of the permanent council of the UIHJ in Cape Town, a resolution had been adopted in order to facilitate a bringing together between the judicial officers of the various areas of Africa. The project had been baptized Cadat, to symbolise three large cities of the south north axis of Africa: Cape Town, Dakar and Tunis.

Moreover, a seminar had been organised by the UIHJ in Pretoria on 24 and 25 February 2005 during which a resolution (Pretoria resolution) had decided:

It is within this framework that in Johannesburg, three major topics constituted the base of the seminar: harmonization of the statutes, training and debt recovery.

The representatives of the following countries were present: South Africa, Algeria, Benin, Cameroon, Congo, Ivory Coast, France, Gabon, Reunion, Kenya, Lesotho, the Netherlands, Senegal, Swaziland, Chad, Togo, Tunisia, Zambia and Zimbabwe.

The UIHJ was strongly represented by its president, Jacques Isnard, its 1st vice-president, Leo Netten, its permanent secretary for Africa, Honoré Aggrey, its secretary-general, René Duperray, a member of the board, Mourad Skander, its 1st secretary, Mathieu Chardon, its 1st quaestor, Jos Uitdehaag, as well as Rose Bruno and Anne Kérisit, members of the French delegation and Ufohja experts.

The perfect organisation of this seminar is mainly due to Johan Fourie, Sheriff in Cape Town, and secretary of Cadat, who has spent most of the past months to make sure this event would turn out to be both a success and a pleasure for its participants.

After a welcome speech by Sabeir Ismael, president of the South African Institute of Sheriffs, who wished everyone one an excellent stay, Johan Fourie also welcomed the delegations and wished for profitable works, stressing the importance of the meeting and its consequences for the future of the profession in Africa.

In his introductory speech, Jacques Isnard recalled the origins of Cadat while stressing the importance of training. “Could not we consider that Ufohja could develop as an institute having for vocation to have the same principle for the Southern Africa Development Community (SADC) zone?” he suggested. Taking as an example the Ohadac, which is currently being created in the Caribbean, the president of the UIHJ continued: “There is no reason why what has been a success in the central and northern zones cannot be achieved in the southern zone. The UIHJ is a motor. You, African judicial officers, have a role to play in your countries. You play an essential part in the installation of the Rule of Law. If you give up because of difficulties, it is the end of democracy and the rule that requires for the judicial officer to fill his oath”.

Ohada Is a Culture

The first workshop related to the treaty of Ohada. It was chaired by Leo Netten and included presentations by Mathieu Chardon, Oulaï Antoine Crépin (Ivory Coast), president of the national Chamber of the judicial officers of Ivory Coast, and T.E. Monaphati (Lesotho), Judge, Chief of the Sheriffs and Messengers of Lesotho. Mathieu Chardon presented the Ohada, its general principles, as well as its objectives and means. The first secretary of the UIHJ insisted on the extraordinary opportunity that Ohada represents for the African States and the African continent. “Within a few years only, supranational and compulsory rules were created in domains that concern the economic and legal life of 16 African countries. In Europe, we have been working on these topics for over 50 years with the European Union” he added. And to conclude: “Ohada today is a culture, a remarkable frame of mind, an example and even a model for the international community”.

Oulaï Antoine Crépin then presented the structures of Ohada and the assets resulting from its activities. Reviewing the bodies of Ohada, the president of the national Chamber of the judicial officers of Ivory Coast, evoked the legal and legislative activity of Ohada through its uniform acts.

Then, evoking the history of law from the Lex Mercatoria, T.E. Monapathi declared that Ohada was to be placed in the context of the need and the necessity for the States to create trans-national rules. Our fellow-member of Lesotho declared himself disappointed that the interest of Ohada was not sufficiently underlined in Africa as a means of solving commercial conflicts. “Time has now come for us in Africa to adopt the common rules referred to by the Ohada. Trade will then be strengthened. This will profit to all in Africa” he concluded under a general approval.

In echo to his words, Johan Fourie estimated necessary that within Cadat politicians and businessmen be approached to point out that the treaty of Ohada was not set to serve the interests of judicial officers but the business law. A debate was then held on the question of the importance of Ohada and on the lack of information in the southern zone. For one of the representatives of the Cameroon delegation, “Ohada makes it possible to have alleviated enforcement”.

Amicable Debt Recovery, the New Image of the Judicial Officer

The second workshop which treated the topic of the amicable debt recovery joined together Mourad Skander (chairman), Mohammed Chérif, president of the national Chamber of the judicial officers of Algeria, Rose Bruno, Saïdouba Kissing Camara, president of the national Chamber of the judicial officers of Guinea, James Josiah, president of the national Chamber of the judicial officers of Kenya, Elysée Eldjimbaye, president of the national Chamber of the judicial officers of Chad, Jos Uitdehaag, and Sami Banmour (Tunisia), director of the Training Centre of the judicial officers of Tunisia.

In his presentation, Mourad Skander declared that “Distraint is only a curative stage in the relation between debtors and creditors”. According to the former president of the national Order of the judicial officers of Tunisia, voluntary execution remains the rule in our law. Between the two lies the preventive field, currently unexploited by the near total of the judicial officers, in particular those of Africa: the amicable debt recovery, which is the action to achieve outside a dispute the steps to carry out the recovery of the debt. “It contributes to the implementation of a new image of the judicial officer, more accommodating and closer to the debtor. That is also in the interest of the creditor” estimated our fellow-member.

In this respect, Mohammed Chérif informed the participants that in Algeria, the judicial officers have the monopoly of the debt recovery and that all is made to facilitate their work with an access to information thanks to the collaboration of banks, the Tax Department, administrations, etc.

After having presented the debt recovery in France, Rose Bruno evoked various academics measurements which can sometimes accompany it, while deploring that, in her country, the judicial officer had only a limited access to information.
Saïdouba Kissing Camara stressed that Ohada is in force in Guinea and indicated the characteristics of debt recovery in his country.

For Kenya, James Josiah, evoked debt recovery through enforcement of court decisions, noting that Sheriffs were not able to carry out amicable debt recovery.

On the opposite, in the Netherlands, Jos Uitdehaag pointed out that debt recovery is one of the most important activities of the Dutch judicial officers, since it accounts for approximately 55% of the incomes of our colleagues. “Is the judicial officer only here to carry out enforcement of court decisions or is he here to have results?” asked the 1st quaestor of the UIHJ. For him, one must be able to try to collect monies before addressing to the judge. That is much cheaper and faster than to use a lawyer and to enforce a court decision. When a creditor addresses to a judicial officer to carry out an amicable debt recovery, it means for him that this professional controls the procedure, and that all their professional obligations and liabilities also apply to debt recovery.

In Chad, our fellow-member Elysée Eldjimbaye indicated that there are no particular provisions for debt recovery, which is exerted on a purely competing basis both by judicial officers and debt collecting agencies. Lastly, speaking for Tunisia, Sami Banmour indicated that the judicial officer did not carry out debt recovery and that there was unfortunately no access to information.

After the debates that followed the interventions, Leo Netten ended the workshop by wishing that the seminar would conclude for the necessity, on a continental level, for the judicial officers to be able to carry out debt recovery.

Training By, And For, Judicial Officers

The third workshop dealt with uniform acts of Ohada, trans-national instruments in the southern zone and international treaties. During the workshop, Hortense Bankolé da Souza, president of the national Chamber of the judicial officers of Benin, and Gaba Kokoé dos Reis, president of the national Chamber of the judicial officers of Togo, presented the project of a standard statute of African judicial officer, including training, access to the profession, the body of representation, tariffs, insurance and the mode of protection. Our colleagues also perfectly evoked the operating mode of Ohada and its uniform acts, in particular that on the simplified recovery procedures and measures of execution.

The fourth workshop related to training and was chaired by Honoré Aggrey. It joined together Sami Banmour, Anne Kérisit, Alphonse Kibakala, president of the national Chamber of the judicial officers of Congo, Rachid Ayadi, judicial officer in Bejaia (Algeria), and Johan Fourie.

Our colleague Anne Kérisit presented the National School of Procedure of Paris (ENP) and its international actions with the UIHJ but also with the Council of Europe and the European Union as well as with various international organisations, like USAID or CILC within the framework of international projects. Anne Kérisit also evoked Ufohja, the Training Unit of African Judicial Officers created by the UIHJ, the ENP and the representatives of the national chambers of the judicial officers of the Member States of Ohada.

On the same topic of Ufohja, Honoré Aggrey indicated how much this organization was an example as regards training. Moreover, for Alphonse Kibakala, “Ufohja, daughter of the ENP, is a training tool for the Ohada zone”. It makes it possible to help the harmonization of the application of the Community texts by the judicial officers of the Ohada area through meetings and exchanges between countries. “It is about practical and theoretical training by judicial officers, for judicial officers” concluded our fellow-member.

Sami Banmour gave the example of his country, Tunisia. Training is essential for the correct functioning of a profession, he said. It is necessary to promote an exchange of meetings, the levelling of legislative changes, the harmonization of practises as regards enforcement and the development of parallel technical skills, if one wants to play a part in the future, estimated the director of the Training Centre of the judicial officers of Tunisia. In the same direction, Rachid Ayadi then presented the project of a training centre in Algeria.

Besides, Mohammed Chérif, president of the national Chamber of the judicial officers of Algeria announced that his country organises in Algiers on 28 February 28 an international conference for the 22 country of the Arabic League, as well as the Ohada, Euromed and Asian countries. This conference takes as a starting point the model of Ohada for the countries of the Arab world, he declared. Its topic is the economic order and the globalization of the profession and aims to encourage the implementation of self employed and independent judicial officers throughout the world.

A Statute With A Future

During the debates which followed, the president of the UIHJ reconsidered the project of a uniform act relating to the statute of African judicial officers which was decided and voted by the delegations of the UIHJ. By their activity, judicial officers are in close relation with the world of business: debt recovery, interlocutory measures, enforcement measures, legal safety, protection of trades and investments, etc. “This statute is at the same time practical, realistic and is future minded” estimated Jacques Isnard. Discipline, activities, working conditions, training and social aspects form an integral part of the project. This declaration started the enthusiasm of the participants. The representative of Swaziland declared that nothing prevented the least advanced countries from taking as a starting point the most advanced countries. “If the minimum educational level to become a judicial officer is a Master in Law degree, then we are the ones who have to adapt” he said.

The summary report was made by Mathieu Chardon. In a well appreciated intervention, the first secretary of the UIHJ integrated the various interventions of the actors of the workshops and those of the participants in the room to show how African judicial officers are guarantors of the Rule of Law in an African area of justice without borders. “What is important is the extreme success met by this initiative” he said.

The seminar was completed by the reading of the resolution adopted by the participants, thus conceived:

The presidents of the delegations of North, Central, Western, and Southern Africa and of the Indian Ocean met in Johannesburg on 19 October 2007 and adopted at the end of their work, as final resolution, the two following proposals:

1. To continue and to reinforce the actions initiated by the resolutions of Cape Town (11 May 2001) and Pretoria (25 February 2005)

2. To invest Cadat with the following missions:

In his closing speech, Jacques Isnard indicated that “Johannesburg 2007 is one of the additional stakes which will illustrate the history of the UIHJ. One will speak about Johannesburg. This is a historical event. We live in a system of globalisation and standardization of the law. Only by gathering and co-operation will we achieve something. The evolution implies three axes: statute, training and co-operation”.

At the time of his conclusion, the president of the UIHJ declared that each one should feel personally concerned by this evolution and that the countries of the southern zone could count both on other countries and on the UIHJ. But Jacques Isnard could not close this great historical event without thanking South Africa and Sabeir Ismael, President of the South Africa Institute of Sheriff, for his reception and his support in the actions of the UIHJ. As for Johan Fourie, organizer of these days, the president of the UIHJ expressed to him all his recognition for the perfect organisation of the seminar and paid a vibrating homage to his exceptional qualities. This praising was followed, would you doubt it, by a thunder of applause.