4.1.1 Formal Acceptance

Senegal has accepted all nine core UN human right treaties. It also accepted op-crc-ac, op-crc-sc and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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op-cat. It did not ratify op2-ccpr, although it had abolished the death penalty. This omission appears to be connected to the desire of the then President not to offend religious groups who were not happy with the measure he had passed without discussing this with them.

In the early 1970s Senegal ratified the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) and the two 1966 Covenants. Supported by international organisations such as the International Commission of Jurists, which held a congress in Dakar in 1967,⁶⁸ the Senegalese authorities’ approach was also based on the humanistic philosophy of the father of the country’s independence, President Léopold Senghor,who believed that the purpose of any political action was to ‘develop human beings in all fields on the basis of two major principles: rationality and, hence, effectiveness, on the one hand, and social justice, based on human solidarity, on the other hand’.⁶⁹ Senegal ratified cedaw, cat, crc and cmw under the presidency of Abdou Diouf, ced, crpd and the Optional Protocols to cat and crc under the presidency of Abdoulaye Wade.

Senegal has accepted four of the complaint’s mechanisms, by making the article 14 declaration under cerd, the article 22 declaration under cat, and by ratifying op1-ccpr and op-cedaw. Three cases have been filed against Senegal – two before the HRCttee, and one to the cat Cttee. The non-acceptance of the contentious procedures under the other treaties appears not to be deliberate. This seems to be caused by the negligence of officials of the ministries concerned and by the lack of strong advocacy by civil society organisations, which certainly are not impressed by the efficiency of such mechanisms. The impression is that Senegalese are only interested in international procedures when it comes to exposing state behaviour at the international level.

Senegal also accepted the inquiry procedures under article 8 of cedaw, article 20 of cat, article 33 of ced, and by ratifying op-cat, accepted the visits by the spt.

4.1.2 Attitude towards the UN Treaty System

The UN mechanisms have always considered Senegal a valued partner on the African continent when it comes to dealing with human rights issues, on account of the fact that democracy is firmly rooted in this country and due to the institutional recognition of the importance of life and human dignity. This sound approach has contributed to educating officials in the culture of human rights and has led to a gradual understanding of the spirit and letter of the various treaties. It has also made it possible for human rights concerns to be gradually incorporated into the numerous social policy documents drawn up by the state.

A number of technical partnerships have thus been established between the state of Senegal and UN agencies such as the United Nations Children’s Fund (unicef), the United Nations Development Programme (undp), UN Women, the Regional Office of the High Commissioner for Human Rights (ohchr) and the iom, to support it in achieving its ambitions in this area. Based on this cooperation, a number of training schools for state officials have started incorporating human rights modules into their curricula, which is helping introduce a human rights culture into the country’s security services.⁷⁰ The contribution of the Dakar-based regional office of the ohchr, through its project to strengthen the capacity of the Senegalese civil service, will ultimately provide quality resource persons who can train future managers on the issue in Senegal.⁷¹ The same is true of the good collaboration between UN Women and the National Statistics and Demography Agency (ansd) for the production of statistical data on women in Senegal.⁷²

Between 1978 and 2019,⁷³ Senegal had approximately 10 national experts elected to serve as members of treaty bodies in order to contribute to reinforcing the promotion and protection of human rights at the international level.

The Senegalese authorities have made considerable efforts to uphold their commitments and thus implement the recommendations set out in the Concluding Observations (cos) or findings of the treaty mechanisms. The recommendations made by the HRCttee in the Famara Kone case, regarding the unlawful arrest and detention of a Senegalese citizen, have been fully implemented by the government.⁷⁴ Those of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (cat) in the Souleymane Guengueng case, concerning the trial of a former President of Chad accused of torture and crimes against humanity, were more difficult to implement due to complications resulting from President Wade’s refusal to have Hissène Habré put on trial in Senegal.⁷⁵

4.1.3 Level of Awareness of the Public

Generally speaking, the administrative authorities’ acceptance of recommendations and citizens’ access to these mechanisms have never been easy, especially in view of the limited information available in the media and from civil society organisations. It was only in 2006 that Senegal, with the support of local civil society organisations, set up a local system of which the main function was to inform the population about their rights, to improve access to the public legal service and to help relieve congestion in courts. The system was structured as follows:

1. –nineteen legal aid offices⁷⁶ deployed throughout the country, in local communities. From 2013, some Counselling Offices were set up in 11 of those local authorities with the support of UN Women, in order to provide legal assistance to women and girls who were victims of gender-based violence, by facilitating their access to justice, ensuring their cases were taken care of and providing financial support to victims who were in a precarious situation;
2. –eighteen Reception and Referral Offices (baojs) set up in some of the courts⁷⁷ to welcome and inform court users; an
3. –four Citizen Advice Bureaus (bijs) housed in some of the country’s universities⁷⁸ to promote legal literacy among students and make them important relays for the dissemination of legal information throughout Senegalese society.

Between 2006 and 2018 these legal aid offices received nearly 400 000 people, advised 184,546 people on their rights, handled 142 567 mediation cases with an overall successful conciliation rate of 75 per cent, and assisted 57 493 people in their relations with the authorities.⁷⁹ As for the baojs, they play an important role in combating crooked brokers swarming around courts and also improving the reputation of the judiciary in society, depending on the city and the jurisdiction. For example, in 2018 the baoj of the Palais de Justice in Thiès had 56 831 visitors.⁸⁰

The Senegalese female Lawyers’ Association (ajs) is also contributing to this with its seven legal aid offices nationwide,⁸¹ serving as legal and judicial advisory, counselling and psychosocial assistance centres for women and collaborating with the legal aid offices. Health facilities and courts occasionally refer to cases of women seeking legal, judicial or psychosocial assistance. ajs has also a Legal Aid Fund that enables it to provide them with proper legal representation in their cases.⁸²

There are also instances of collaboration between civil society organisations and Parliament⁸³ and the judiciary⁸⁴ to help raise awareness and encourage greater respect for human rights.

Human rights education is yet to be formally introduced into the Senegalese school system but has made a minor foray into higher education thanks to the Human Rights and Peace Institute (idhp)⁸⁵ of Cheikh Anta Diop University in Dakar. The idhp also works in collaboration with the Interschool Centre for Children’s Rights (cide) of the University of Geneva (Switzerland) to train the staff of organisations and institutions working in social affairs and the promotion of children’s rights.

In addition to seminars organised by specialised state bodies and the ohchr, which often target the educated segments of the population, various ministries celebrate human rights days⁸⁶ and weeks,⁸⁷ while civil society organisations focus on advocacy campaigns and prosecutions.⁸⁸ The introduction of human rights modules in training courses for police officers, gendarmes, judges and other medical personnel has also helped make progress in the fight against torture, trafficking in persons and the protection of civil liberties.

The publicity that surrounded Senegal’s appearances before the Human Rights Council within the framework of the Universal Periodic Review (upr), the handling of the Hissène Habré case by cat and, more importantly, the forceful reactions of the Senegalese authorities regarding the HRCttee’s handling of the Karim Meissa Wade case, a former minister and son of the former Senegalese President Abdoulaye Wade who accused the government of arbitrary detention, have changed the Senegalese public’s perception of these mechanisms, that is, the instruments created by the former colonial powers to ‘perpetuate’ unequal power dynamics between rich and poor states, and impose Western views on such sensitive issues as the place of women and children in African societies and people’s sexual orientation. What remains to be done now is to persuade the public of the universal nature of all the principles and rules conveyed by these legal instruments.

4.1.4 State Reporting

Preparation of initial and periodic reports: Traditionally, the Ministry of Justice has been at the heart of all government human rights initiatives, including the drafting of Senegal’s initial and interim reports to regional and international bodies.⁸⁹ It was only in 1997 that the new National Human Rights Institution Act⁹⁰ granted the csdh with the responsibility to draft the periodic reports. The constitutional cacophony and chronic instability of the administrative staff that characterised the liberal presidency of Abdoulaye Wade⁹¹ prevented the csdh from fully accomplishing the mission that had just been entrusted to it. As a matter of fact, the Office of the High Commissioner for Human Rights and Peace, which was established alongside the csdh in 2004, was responsible not only for monitoring the implementation of international human rights treaties and participating in their transposition into domestic law but also, and more importantly, for coordinating the preparation and presentation of periodic reports, responding to questions that international bodies addressed to Senegal and following up on the authorities’ implementation of the opinions and recommendations of those bodies.⁹² In 2011 a Human Rights Directorate was established at the Ministry of Justice and assisted by a National Human Rights Advisory Council (ccndh)⁹³ directly attached to the office of the Minister of Justice. It was tasked with coordinating the preparation and submission of periodic reports and documents drawn up by the government and intended for regional and international human rights monitoring bodies. This body assisted Senegal to make up for its considerable delay in submitting its reports, thanks in particular to the professionalism and dedication of its administrators.⁹⁴ In the interests of efficiency, the government broadened the mandate of the ccndh by entrusting it, in addition to preparing and submitting reports, with coordinating information collection and collaborating with the bodies responsible for producing such information.⁹⁵ In the performance of this mission, the ccndh could rely on the close collaboration of ministries, the ansd and other specialised public bodies, Parliament, the judiciary, the csdh and civil society.

Process of implementation of Concluding Observations: The Ministry of Justice instituted a practice of convening a feedback meeting on Senegal’s participation in the state reporting process, once the official delegation returned to the country. This was an opportunity for participants to share their views on the implementation of the recommendations and the role to be played by certain key ministries in information gathering and sharing. Concomitantly, civil society members who had taken part in the discussions or had received reliable information on Senegal’s appearance before a treaty body would, as far as possible, shared their impressions with journalists who sometimes made a point of widely disseminating highlights of the cos. The establishment of the ccndh, whose roles include ‘coordinating and monitoring the follow-up of the implementation, on a national scale, of treaty obligations and recommendations issued by international human rights and international humanitarian law mechanisms’,⁹⁶ somewhat changed administrative practices and led to the establishment of more formal reporting procedures:

1. –A trip report would be drafted by the head of the delegation and shared with the members of the ccndh.
2. –Once the text of the cos has been officially received, the Director of Human Rights would convene a meeting of the ccndh to discuss the measures to be taken by each ministry concerned and the timeframe for implementing the commitment made by the authorities.
3. –A note would be prepared for each recommendation of the cos and sent by the Minister of Justice in person to the Minister concerned.
4. –Line ministries, in turn, would organise sharing workshops with their partners in order to identify pragmatic implementation strategies. In a large majority of cases, especially in the area of children’s rights, the financial constraints facing the state are a serious obstacle to the implementation of recommendations.
5. –Progress and difficulties in implementation are analysed at the monthly meetings of the ccndh on the basis of reports prepared by the Director of Human Rights and proposals are made for action by the administrative bodies concerned. While this new approach has enabled the Senegalese authorities to provide more regular information on the country’s response to cos of the treaty bodies,⁹⁷ it has not improved public information on both the content of the periodic reports and on the measures taken to remedy shortcomings reported by the treaty bodies. No official government website, let alone the websites of the independent mechanisms established through the work of the treaty bodies, contained information on those procedures. Civil society organisations are working to fill the void, but their limited communication capacity makes it impossible for them to make a difference.

4.1.5 Role of the Independent State Human Rights Institution

The csdh was the first national human rights institution to be established in sub-Saharan Africa.⁹⁸ In 1997, following the adoption of the Paris Principles by the United Nations General Assembly, a law was passed to turn the national human rights institution into ‘an independent institution for consultation, observation, evaluation, dialogue, consultation and the promotion of human rights’.⁹⁹ Since then the csdh may, on its own initiative or at the request of any national authority, work in collaboration with all UN bodies or any regional or national institutions with a role in human rights promotion and protection; and give its opinion on any report or document intended for these bodies and ensure that Senegal complies with its obligations under the international and regional conventions to which it is a party.¹⁰⁰

The csdh was granted Status A upon its accreditation with the International Coordinating Committee of National Human Rights Institutions. Under the regime of President Abdou Diouf, it was the country’s flagship institution and contributed to Senegal’s compliance with its treaty obligations, in particular by implementing the findings of the treaty bodies¹⁰¹ and raising awareness among the population and the authorities about the content of the treaties.¹⁰² The reforms introduced by Abdoulaye Wade’s liberal regime, marked by the creation of the ohchr, the Human Rights Directorate and the ccndh, contributed to the marginalisation of the csdh in the state’s human rights promotion and protection mechanism, leading to the institution being downgraded to Status B under the presidency of Macky Sall, due mainly to a lack of tangible support, especially financial, from the Senegalese authorities, a lack of diversity in its composition and its lack of independence. By appointing a member of his party and mayor of a city to head the csdh, President Macky Sall created a feeling of unease within the human rights movement, some of the most influential members of which decided simply to cease all forms of collaboration with the national human rights institution.

4.1.6 Role Played by Civil Society

Since the early 1990s national and foreign civil society organisations have become key players in all matters relating to human rights promotion and protection in Senegal. They very soon recognised the value of working together to influence the Senegalese authorities’ policy in a rather sensitive area. Alongside foreign ngos,¹⁰³ which essentially implement individual programmes, local organisations have often chosen to form coalitions¹⁰⁴ in order to interact with the authorities as part of an advocacy strategy or exert pressure on them.

The relations between the Senegalese authorities and civil society are generally good in times of social tranquility, to such an extent that the authorities have sometimes been able to appoint some of its members as advisers¹⁰⁵ or include them in state delegations tasked with interacting with UN bodies. However, they usually deteriorate during pre-election or election periods when civil society organisations are often perceived as opponents.

The passing of a law on electronic communications that should theoretically allow ‘specific protection of users’ personal data in accordance with the requirements of security and public order’¹⁰⁶ was also seen as a way to restrict freedom of expression, especially through censorship of content posted online.

More recently, a controversy arose following the publication, by a religious organisation, of a list of associations allegedly defending lesbian, gay, bisexual and transgender (lgbt) rights,¹⁰⁷ forcing the Interior Ministry to launch an investigation into the possible recognition of lgbt organisations in Senegal.¹⁰⁸ This was seen by many Senegalese organisations as the beginning of a ‘witch hunt’ in a country known for its liberal legislation regarding associations.¹⁰⁹

Lastly, one should mention the existence of a fairly diversified¹¹⁰ and dynamic¹¹¹ the media sector that is really beginning to play an essential role, not only in informing the public about the activities of the treaty bodies but also, and above all, in educating the population about societal issues such as child begging, safe abortion, homosexuality and violence against women. However, regrettably, these media are under-used by civil society and the public authorities when it comes to promoting human rights or in social debates.

4.1.7 Local Process for Implementing cos and Findings of Treaty Mechanisms

On the surface, the implementation process is very clear, since by law, the ccndh has a mandate to ‘review legislation and regulations and ensure that they are consistent with international and regional human rights and international humanitarian law instruments ratified by Senegal’.¹¹² In practice, this operation is made more complex by competition between the nccdh and other state bodies with the same mandate conferred by law. These include the csdh which is responsible for ‘ensuring that Senegal complies with its obligations under the international or regional conventions to which it is a party’,¹¹³ the Legal Instruments Monitoring Commission, which is responsible for ‘ensuring that legal instruments are consistent with international and community standards’,¹¹⁴ and the Child Protection Support Unit (cape).¹¹⁵ Experience has shown a difference in approach depending on whether it is about implementing cos or the findings of treaty mechanisms.

4.1.8 Implementation of cos

The implementation of cos may be achieved through the formulation of a national policy that takes account of the state’s commitments under the treaty in question¹¹⁶ or through the revision of an existing law by Parliament to ensure that it complies with the state’s new obligations.¹¹⁷ In many cases, the procedure is initiated by the government itself at the request of some technical partners (unicef, the United Nations Population Fund (unfpa), iom, undp, UN Women, ohchr, among others) and institutional partners concerned with advancing the fulfillment of certain basic rights. A political authority particularly concerned about the plight of a vulnerable group may also be behind the implementation of the recommendations of the UN mechanisms. This was the case when President Macky Sall, following the death of many street children in March 2013, urged the Minister for Women and Children to take special measures to protect these children.¹¹⁸ In Senegal, most reforms are politically motivated and therefore tend to serve only the immediate interests of their initiators. The reform of the Nationality Act in 2013, which resulted in Senegalese women being granted the right to pass on citizenship to their children and spouses, is a case in point. In the memorandum submitted to the Minister of Justice, who had initiated the reform, a group of ngos drew the Minister’s attention to a number of discriminatory provisions found in Senegalese law, including those related to disability. However, being a good politician, she was concerned only about discrimination affecting women, who made up a large proportion of her party’s voters in the forthcoming elections.

4.1.9 Membership of Treaty Bodies

Senegal has always encouraged and supported its citizens with recognised expertise in the field of human rights to apply for positions available within the treaty bodies. Since the end of the 1970s to mid 2021, eleven Senegalese nationals have contributed or are still contributing, based on their expertise, to enhancing the prestige of these human rights protection and promotion mechanisms. Senegalese nationals participated in the activities of untb:

The untb membership of judges contributed to the education of the judiciary on a number of issues, including the eradication of torture in the country. As a member of cat and president of the Cour de Cassation, Justice Guibril Camara contributed to the development of a jurisprudence that made sure that nobody was, even the security forces, above the law when it comes to the application of cat. Late Professor Birame Ndiaye was, during his mandate as a member of the HRCttee, in charge of the course on human rights at the Faculty of Law of the University of Dakar, which contributed to the training of the first cohort of human rights activists who created the first human rights organisations of the country (ondh, raddho, lsdh, Forum du Justiciable and ajs). (Falling beyond the study’s cut-off mark: Maitre Bacre Waly Ndiaye was elected to the HRCttee in 2022 for a mandate of four years (2022-2026).)

4.2.1 Domestication of UN Human Rights Treaties into Domestic Law

The inclusion of UN standards¹¹⁹ in the Constitution and the introduction of the concept of basic rights and new economic and environmental rights in the Constitution seem to have given new impetus to the Senegalese government’s determination to honour the commitments it has made to the treaty bodies. Since then, it has prioritised the effective alignment of national legislation with the legal instruments ratified by Senegal in order to ‘guarantee legal governance that is more respectful of the rights’¹²⁰ they contain.

1. –The Senegalese state has innovated by encouraging interested administrations to prepare documents laying down the parameters of their actions in the areas covered by international treaties within a given period of time and creating agencies responsible for implementing the commitments made. This approach was designed to enable ‘the state to better report on the progress made in the implementation of legal instruments [and] … to put all actors into perspective’ by giving priority to:
2. –the implementation of ratified international standards in order to integrate them into programmes and policies;
3. –the empowerment of players responsible for directly implementing these rights for the benefit of the various segments of the population, especially women and men, based on the fact that these are rights that should be met and not potential needs that may need to be met;
4. –the support to implementers, especially governments, for the implementation of rights and the definition of legal measures that stakeholders, technical and financial partners, communities of international and national civil society organisations and citizens can take charge of and could call upon in the event of failure to fulfill their commitments; and
5. –the adoption of human rights indicators and regular monitoring measures to ensure fulfillment of legal commitments.¹²¹

The following national policy documents are directly connected to the commitments made by the government in ratifying UN human rights instruments:

1. –In the area of children’s rights, the National Child Protection Strategy (snpe) document adopted on 28 December 2013 ‘is based on the state’s commitments and obligations to protect the rights and well-being of children as stipulated by the crc, the African Charter on the Rights and Welfare of the Child and the recommendations of the 5th Pan-African Forum on Children’¹²² and backed up by a National Action Plan for its implementation.
2. –In the area of women’s rights, the National Strategy for Gender Equity and Equality (sneeg) document, is ‘an operational instrument … for the elimination of gender discrimination with a view to achieving an emerging Senegal that guarantees equal opportunities between women and men’.¹²³ It is interesting to note that the document states that ‘the actions to be developed will be based on the human rights approach defined as a conceptual and normative framework for a planning and programming process based on the implementation of international and national standards for the protection and promotion of human rights’. Based on this principle, policy making that will be the basis for translating the principle of gender equality will be based on ‘right’ and not on needs.¹²⁴
3. –In the area of economic, social and cultural rights, National Economic and Social Development Strategy (sndes) documents, National Social Protection Strategy (snps) (2015–2035), National Health Development Plan (pnds) (2009–2018) was followed by a Strategic Plan for Digital Health (pssd-2018–2023), a Decennial Education and Training Programme (2001–2010) followed by a Programme for Improved Quality, Equity and Transparency in Education (paquet).
4. –Regarding Justice, the Letter for Sectoral Policy for the Development of the Justice system has the objective to set the main orientations and priorities of the Ministry of Justice ‘with a view to contributing to the consolidation of the rule of law and guaranteeing the application of the fundamental rights and freedoms recognised by the Constitution of the Republic of Senegal’.¹²⁵

A number of these documents subsequently served as a basis for the adoption of policy legislation to translate the ambitions set out in the strategic documents into legislation. The adoption of the Social Orientation Act 2010–15 of 6 July 2010, on the promotion and protection of the rights of persons with disabilities, for example, followed the adoption in 2006 of the National Community-Based Rehabilitation Programme designed to improve access to the country’s rehabilitation services for persons with disabilities. Senegal’s ratification of the Convention on the Rights of Persons with Disabilities (crpd), in a sense, has forced the Senegalese authorities to develop a reference framework for the institutional arrangements to be put in place to ensure that persons with disabilities are cared for and integrated into Senegalese society. It should be noted that the first two implementing decrees¹²⁶ already enacted out of the 15 or so instruments¹²⁷ that the government intends to adopt to implement the Convention are those that have the least financial implications for the state.

It is in the area of women’s and children’s rights that the Senegalese authorities have made commendable efforts to put an end to the discrimination experienced by Senegalese women and to protect children more effectively against certain social practices in Senegalese society. At the request of the UN treaty bodies, significant amendments have been made to certain Senegalese legal provisions:

1. –Act 91–22 of 16 February 1991, on educational guidance, which provided for compulsory and free elementary education, was revised in 2004 by Act 2004–37 of 15 December 2004, to raise the age of compulsory schooling from six to 16 years as requested by cescr in its cos dated 24 September 2001 (paragraph 57);
2. –Act 99–05 of 29 January 1999 amended the Criminal Code in order to address violence against women as recommended by the HRCttee in its cos dated 19 November 1997 (paragraphs 12 and 13);
3. –Act 2005–15 of 19 July 2005 granted women the right to make decisions regarding their reproductive health at the demand of cescr in its cos dated 24 September 2001 (paragraph 47);
4. –Act 2008–02 of 1 January 2008 introduced equal tax treatment for men and women as formulated by cescr in its cos dated 24 September 2001 (paragraphs 35, 37 and 40);
5. –Act 2010–11 of 28 May 2010¹²⁸ introduced total parity between men and women in fully and partially elective bodies as demanded by cedaw in its cos dated 27 January 1994 (paragraph 725);– Act 2013–05 of 8 July 2013¹²⁹ granted women the right to pass on citizenship to their children and spouses as recommended by cedaw in its cos dated 27 January 1994 (paragraph 695);
6. –Act 2019–20 of 27 December 2019¹³⁰ amended Act 65–60 of 21 July 1965 to criminalise rape and pedophilia at the request of the HRCttee in its cos dated 11 December 2019 (paragraph 17);

In some cases, the reforms also produced infra-legislative norms, such as the Circular 004379 of 11 October 2007 of the Ministry of National Education authorising pregnant girls to pursue their studies. This decision followed the formal demand of the cescr in its cos dated 24 September 2001 (paragraph 47).

4.2.2 Interpretation of Treaties by the Judiciary

The Senegalese judges and lawyers’ level of expertise in international human rights law is difficult to assess. This is due in particular to the inaccessibility of judicial decisions. The rare sources of information accessible in Senegal are the website of the Supreme Court of Senegal,¹³¹ Sunulex¹³² – which provides information on Senegalese law – and the websites of the Organisation for the Harmonisation of Business Law (ohada), African Legal Publishers (edja) and juricaf (Jurisprudence of Francophone Supreme Courts).¹³³

Cases referring to UN human rights treaties are not numerous on these sites and this situation is due to the parties involved in the proceedings controlling the procedure,¹³⁴ to the judges’ poor understanding of these treaties and to the fact that the treaties are not very often invoked before the courts by lawyers and litigants. Another factor is the limited interest among the local media in cases relating to the enforcement of these standards, but over the last two years, the media have become more and more interested in the application of international standards of human rights.

The judges indeed are beginning to refer in their decisions to international treaties ratified by Senegal, particularly the Convention on the Rights of the Child (crc), and lawyers are invoking provisions of these treaties on issues related to torture and civil and political rights in general. This has contributed to a timid emergence of local jurisprudence on the application of the provisions of UN treaties in Senegal. Clearly, all Senegalese highest courts, whether constitutional,¹³⁵ administrative¹³⁶ or judicial,¹³⁷ are called upon to protect human rights with reference to the UN treaties, and even lower courts also rule on these issues, either directly¹³⁸ or when dealing with electoral matters.¹³⁹

More specifically, few cases dealt with by the administrative judge¹⁴⁰ make reference to international treaties on issues related to citizens’ equality before the law,¹⁴¹ the protection of the right to property,¹⁴² religious freedom,¹⁴³ freedom of association,¹⁴⁴ freedom of movement,¹⁴⁵ right to trade union¹⁴⁶ and freedom of assembly.¹⁴⁷ With regard to this latter point, the numerous annulments of state decisions banning public demonstrations¹⁴⁸ do not seem to have changed the behaviour of the administration, which continues to disregard freedom of assembly as a fundamental human right that must be respected by all.¹⁴⁹

By contrast, the increased number of cases of torture and inhuman or degrading treatment brought against the state security services (police and gendarmerie)¹⁵⁰ and schools¹⁵¹ before the courts has rapidly changed state practice. The numerous convictions of police officers, gendarmes and teachers, which attracted a great deal of media attention, have contributed to a drastic reduction in allegations of torture and ill-treatment in police stations and gendarmerie brigades throughout the country. It is also true that in most cases these convictions have led to the removal of the perpetrators of these vicious acts from the ranks of the security services.

Concerning the independence of the judiciary, the state continues, despite the call of the HRCttee for ‘urgent measures to protect the full autonomy, independence and impartiality’¹⁵² of the body, to periodically undermine it¹⁵³ by failing to abide by the institutional guarantees enshrined in the Constitution¹⁵⁴ and the country’s legislation.¹⁵⁵ The Judges’ Union of Senegal (ums) has been trying for some years, without much success, to reform the status of judges in order to restore guarantees of independence, establish greater transparency in the management of judges’ careers, reform the Higher Council of the Judiciary (csm) in order to reduce the influence of the executive on the functioning of the legal system¹⁵⁶ and grant a minimum of fiscal autonomy to enable the public justice service to direct its actions towards the real priorities of the sector.¹⁵⁷

4.2.3 Changes within Civil Society

Since the early 2000s the human rights movement,¹⁵⁸ through its expertise and reputation that now extends beyond the boundaries of Senegal, its ability to effectively advocate and influence government actions and the impact it is beginning to have on the population, has strengthened its visibility and legitimacy in society to the point where some of its leaders tend to become politically engaged.¹⁵⁹ This process has encouraged many leaders of civil society¹⁶⁰ to take up positions on critical human rights issues in the central government that they had previously not been able to move forward. In fact, this situation has revealed a number of weaknesses of Senegalese civil society:

1. –a serious lack of autonomy on the part of these organisations, which rely on local and international partners to finance their activities;
2. –low institutional and professional capacity;
3. –very weak internal democracy and relatively non-transparent governance;¹⁶¹
4. –a decline in activism within these organisations, linked to the disappearance of traditional modes of mobilisation within Senegalese society; and
5. –a lack of synergy and close collaboration between organisations.

A joint study by Civicus, the Civil Forum and the West African Civil Society Institute (wacsi)¹⁶² had already observed this limited impact of Senegalese civil society on public policies,¹⁶³ in general, and human rights issues, in particular, and attributed it to a number of difficulties, including those mentioned above.¹⁶⁴ The solutions they proposed included the following:¹⁶⁵

1. –maintaining a proper balance in their relations with political authorities and deepening the ongoing dialogue between the government, the private sector, csos and citizens in order to consolidate democracy and the rule of law;
2. –strengthening technical expertise in the civil society organisations’ areas of specialisation; and
3. –developing a culture of evaluation that allows people to accept constructive criticism and to take responsibility for their mistakes.

4.2.4 Impact of State Reporting

Much of the progress made in the areas of equality between men and women, particularly in the administration, in the delivery of justice, in the production of human rights data, and so forth, can be directly linked to the implementation of the recommendations made by the UN treaty bodies. However, recommendation relates to societal or religious issues. Recommendations in relation to religion and societal issues are the most difficult to implement due to the caution of the political authorities to engage in such reforms, but also, and above all, because Senegal is perceived by the majority of its citizens ‘as a land where people’s souls are yearning and thirsting for the absolute and for the highest spiritual values’.¹⁶⁶

The erratic nature of the presentation of the periodic reports¹⁶⁷ also adds to the difficulty of making an objective assessment of the impact that this procedure has had on the perception that the authorities and citizens have of these rights which nevertheless continue to be at the heart of their often-tumultuous relations. The government of President Abdou Diouf in 1997 began¹⁶⁸ to formally implement the recommendations of the treaty bodies. This practice was maintained by President Abdoulaye Wade, who made efforts to address them in the numerous public policies that his government developed and applied under his leadership. This approach made it possible to transpose the relevant provisions of these legal instruments into Senegalese law in a more or less opportunistic, realistic and sometimes partial manner.

It should be noted, however, that Senegal has more easily implemented its procedural obligations, such as the prohibition of lengthy pre-trial or arbitrary detention or those relating to compensation for victims of rights violations. It has been nuanced and vague whenever its commitments relate to social or culturally-relevant issues, such as discrimination or equality, child protection or sexual orientation.

The attitude of the Senegalese state towards child abuses through begging in daaras¹⁶⁹ is a good example of the ambiguity of its approach to UN human rights treaties. Child begging,¹⁷⁰ a widespread phenomenon in the country and in the sub-region, has been clearly identified by all human rights advocates in Senegal as ‘a serious and manifest violation of the fundamental rights of the child in that it undermines children’s physical integrity and the harmonious development of their personality and deprives them of the right to grow up in a family environment, in a climate of love, happiness and understanding’.¹⁷¹ This explains why there is unanimous opposition to child begging and why it has been condemned by all the treaty mechanisms¹⁷² and many special procedures¹⁷³ that have taken up the issue. Although the state of Senegal has expressed its will ‘to build a state governed by the rule of law that places children at the heart of its mechanism for the promotion and protection of the fundamental rights of citizens’¹⁷⁴ and has developed national policies for children and established a legal framework and institutions to combat the phenomenon, the talibés are still on the streets where they continue to suffer all kinds of abuse.¹⁷⁵ More recently, the cescr Cttee, echoing the requests made by almost all the human rights bodies,¹⁷⁶ has asked the Senegalese authorities ‘to send a strong signal of the political will to end the practice of forced child begging’.¹⁷⁷

In retrospect, the ineffectiveness of the efforts by the state of Senegal can be attributed to the following causes:

Religious: Even though it is now considered a violation of children’s rights, begging by young people living in daaras has for a very long time been perceived in the predominantly Muslim Senegalese society as an essential educational practice that is intended to ‘prepare children for adult life by instilling in them the values of humility, asceticism and endurance’ and help ‘form well-rounded men, freed from any obstructive ego, capable of surviving and evolving in all environments’.¹⁷⁸ The economic crisis of the 1980s and the pas imposed by the Bretton Woods institutions (World Bank and International Monetary Fund) soon turned the daaras into an instrument for acquiring resources,¹⁷⁹ and gradually created a real child ‘alms market’ controlled by the Quranic teachers, with the accelerated impoverishment of the population and resulting rural depopulation. The Senegalese people’s propensity, ‘for reasons related to their cultural beliefs and practices, to internalise almsgiving in their daily lives’¹⁸⁰ and the almost total control exercised by religious leaders over religious education explain, in part, the timid attitude of the Senegalese public authorities in managing this sector, which gives the impression that child protection is not really a priority in the structuring of the Senegalese social order. A review of administrative practice on the subject provides some insights.

Administrative aspects: Despite the involvement of the Office of the President of the Republic¹⁸¹ and six ministries¹⁸² in child protection activities, and the concerns raised by cescr on ‘the inadequate availability of inclusive and quality education in public schools, to the benefit of potentially expensive private schools and Franco-Arab and Qur’anic schools, which are generally free but whose current curricula do not ensure the same level of education as in public institutions’,¹⁸³ inconsistencies remain in the administrative response to child begging. Private religious education, which is still strongly rooted in the country’s sociological fabric, is marginalised in the education system: It still lacks a pedagogical content determined by the public authorities, is unregulated¹⁸⁴ and receives, on average, only 3 per cent of the annual national education budget.¹⁸⁵ There is even a perception of ‘total discrimination’¹⁸⁶ on the part of the government towards this non-formal branch of the education system because of the striking difference between how Senegalese children enrolled in formal schools and those enrolled in daaras are cared for. Anti-begging services lack almost everything: quality human resources,¹⁸⁷ working tools and, most importantly, funding, greatly reducing their capacity to deal effectively with situations experienced in the field. There is a lack of coordination and synergy both within the administration¹⁸⁸ and between the programmes of the government, technical partners¹⁸⁹ and civil society.¹⁹⁰ This is so obvious at the local level¹⁹¹ where the state has set up several response bodies that many actors now accept that ‘there are different experiences, but not a unifying platform for all the initiatives to make them more coherent and replicate them if necessary’.¹⁹²

Political aspects: In Senegal, political leaders have always shown a certain degree of caution on the issue of child begging, which some have equated with weakness towards the powerful religious brotherhoods that have always supported religious education through the daaras. President Macky Sall may well have urged his government, during cabinet meetings, ‘to pursue the considerable efforts undertaken to fight against child begging, in particular through the effective implementation of the National Child Protection Strategy, the modernisation of and support for the daaras’¹⁹³ or even ordered the ‘emergency removal of street children’ and the closure of all Quranic institutions that encourage begging, in the wake of the atrocious death of nine talibés, who were burned alive in the fire of their insalubrious room in Dakar in March 2013, but children remain present on the streets of many cities in the country. Recently, Quranic teachers who ransacked the courthouse of the city of Louga¹⁹⁴ to oppose the conviction of one of their colleagues who was found guilty of physically abusing the talibé, were not at all worried, let alone prosecuted, as the President of the Republic preferred to settle the case directly with the head of the powerful Mouride Brotherhood to which the offending Quranic teacher belonged. What was more ironic was the cancellation, by President Abdoulaye Wade, in the middle of a meeting of the Council of Ministers, of a measure prohibiting begging on the public highway taken by the Prime Minister of Senegal, in application of Act 2005–06 relating to trafficking in persons, on the grounds that ‘almsgiving is a practice recommended by religion’.¹⁹⁵ These facts demonstrate religious leaders’ hold on politics and explain the government’s reluctance to present the draft Children’s Code¹⁹⁶ to the Council of Ministers and the deputies to review legislation on the modernisation of daaras, which has been sitting in the office of Parliament since 6 June 2018.¹⁹⁷

Judiciary: Despite the existence of legislation enabling parents, state prosecutors and civil society organisations to take legal action against child begging, and the formal request by crc ‘to ensure the effective enforcement of article 298 of the Penal Code which criminalises physical abuse and wilful neglect of children’,¹⁹⁸ the Senegalese judiciary is struggling to play an important role in eradicating the phenomenon. Although the courts have started to indict and prosecute Koranic teachers, the number of cases brought before the courts seems to be very small compared to the magnitude of the problem. Between 2014 and 2015, only a dozen Koranic school teachers were prosecuted for acts of violence perpetrated against talibés; however, the figure, according to Human Rights Watch, rose to 25 cases between 2017 and 2018 ‘resulting in at least 21 prosecutions and 18 convictions during this period’.¹⁹⁹ There are many reasons behind this situation: (i) a tendency on the part of Senegalese authorities, both national and local, to give preference to ‘mediation’ rather than legal proceedings against the perpetrators of abuses against talibés. This reduces the capacity of the prosecuting authorities, mainly the prosecutor-general, to take a proactive stance in cases involving talibés; (ii) the fact that parents, if they are not accomplices of the perpetrators, refuse to lodge complaints, especially for financial and cultural reasons related to the social influence of Quranic teachers; (iii) the pressure exerted by religious leaders and Quranic teachers on the judiciary;²⁰⁰ (iv) the lack of legal aid services and legal aid funds²⁰¹ dedicated specifically to children and the few existing legal aid services are based in the major cities.²⁰² All in all, the treatment of child begging in Senegal, in addition to exposing poor governance, sheds light on the violations of children’s rights of which the state itself is guilty by discriminating against non-formal education and, worst of all, by failing to take its obligations under all the UN treaties it has ratified seriously. This is all the more so since, on the specific issue of begging, the financial resources of the state’s technical partners have not been lacking.²⁰³

In light of all the above, one may wonder whether considering national realities is not crucial in the fight for human rights. As Professor Mireille Delmas Marty affirmed, ‘acknowledging differences implies acknowledging that the perception of human rights can be shaped by history and by various political, cultural, religious, economic and social factors, and that every person achieves humanness only through the mediation of a specific culture’²⁰⁴ – which seems to be the case of the Senegalese.

4.2.5 Impact of Individual Communications

Compared to the 15 or so cases heard by the Court of Justice of ecowas concerning Senegal,²⁰⁵ only three cases were decided by the untbs against Senegal. The figures seem to indicate a clear preference among the Senegalese population for sub-regional jurisdiction, owing largely to its accessibility and the possibility for the Court to travel to the country concerned to hold its hearings. The views of the UN human rights bodies have had mixed fortunes in their implementation by the Senegalese authorities, as some of them helped to bring about changes in the Senegalese judicial system, especially with regard to lengthy litigation²⁰⁶ and the hearing of the most serious cases of crimes²⁰⁷ while others, politically sensitive, were simply ignored.

4.2.6 Impact of spt Visit

The spt’s 2012 visit to Senegal played a distinct role in making the National Detention Centre Observatory (onlpl) more compliant with op-cat requirements.

5.2.1 Torture

Faced with the numerous accusations brought against its security forces, especially during military operations against the Casamance rebellion, the Senegalese authorities multiplied their initiatives to show national and international public opinion that torture was no longer tolerated²³⁸ in the country. Some of the important measures taken include the following:

The concerns expressed by the HRCttee in its cos dated 19 November 1997 at recurring problems of overcrowding and poor health and sanitary conditions in many prisons²³⁹ led to the ratification of op-cat, on 18 October 2006, which main objective is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. The establishment of the onlpl (Act 2009–13 of 2 March 2009) contributed to the improvement of the prisons conditions and the prevention of acts of torture, especially in police custody. Since its establishment in December 2012, the onlpl has increased the number of initiatives that have contributed to the effective implementation of the HRCttee’s recommendations on the prevention of torture:

1. –the training of law enforcement officers and students (police officers, gendarmes, prison officers, customs officers and water and forest officers) as suggested by the cos of the HRCttee dated 19 November 1997 (paragraph 11) to instill in them a culture of non-violence;²⁴⁰
2. –visits to detention facilities²⁴¹ to monitor law enforcement officers’ compliance with their obligations vis-à-vis persons under arrest;
3. –awareness-raising activities for administrative authorities and civil society organisations in seven regions and six departments; and
4. –the organisation of awareness-raising programmes on torture with 13 community radio stations.

The concerns expressed by the HRCttee in its cos dated 19 November 1997 about the lack of access to counsel by detainees in police stations²⁴² led to the revision of the Code of Criminal Procedures (article 55 of Act 2016–30 of 8 November 2016 on the presence of a lawyer during custody and article 669 of Act 2007–05 of 12 February 2007 on the implementation of the Treaty of Rome establishing the International Criminal Court). A Circular 00179/mj/dacg/mn of 11 January 2018 specifying arrangements for the implementation of article 5 of Regulation 05/cm/uemoa on legal assistance upon arrest²⁴³ was released by the Ministry of Justice.

The number of decisions taken by the justice system shows that it now stands as guarantor of the strict enforcement of the relevant provisions of the Covenant and other treaties relating to torture against members of the security services found guilty of acts of torture or inhuman or degrading treatment.²⁴⁴ The severity of the judges is sometimes thwarted by the state, especially when, during the settlement of the Casamance crisis, the state decided to grant amnesty to the perpetrators of acts of torture committed in that part of the country on the grounds that the search for peace ‘must be strengthened by forgiving and forgetting acts that should be relegated to the chapter of sad memories’.²⁴⁵ However, the severity of judicial decisions has greatly changed the behaviour of security service officers vis-à-vis citizens in police stations or gendarmerie brigades.

Moreover, the concerns about the ‘passiveness of the government in conducting timely investigation of reported cases of ill-treatment of detainees, of torture and of extra-judicial executions’²⁴⁶ forced the state to make available to citizens new procedures for the protection of their fundamental rights.²⁴⁷ With regard to administrative matters, an expedited procedure, known as summary administrative proceedings, has been introduced to allow the judge to issue rulings within a short period of time whenever warranted by the nature of the case referred to them. For example, when an administrative decision is subject to annulment proceedings, the court may order that its execution be suspended, or that some of its effects be interrupted, ‘where warranted by the urgency of the situation and where there is evidence that, during the investigation, there is a serious doubt as to the lawfulness of the decision’.²⁴⁸ In such cases the term ‘temporary suspension order’ is used.

It may also ‘order any measures necessary to safeguard a fundamental freedom which a legal person governed by public law or a private law body entrusted with the management of a public service has, in the exercise of one of its functions, seriously and manifestly unlawfully²⁴⁹ interfered with’. The judge in chambers should then review a freedom summary procedure and rule on the matter within 48 hours. Another example is the administrative referral case, which is initiated by the chief justice of the Supreme Court when a local authority’s act referred to them is likely to jeopardise the exercise of a public or individual freedom. In such cases, the chief justice of the Supreme Court may order the suspension of the referral within 48 hours of the Supreme Court being seized of the matter.

There are also cases of administrative proceedings²⁵⁰ initiated by the chief justice of the Supreme Court when the act of a local authority referred to them is likely to jeopardise the exercise of a public or individual freedom.²⁵¹ In such cases, the chief justice may suspend the administrative proceedings within 48 hours of referral to the Supreme Court. Exemption from the requirement of a deposit in the Supreme Court for persons filing family rights lawsuits can also be mentioned.²⁵² Lastly, the procedure known as the exception of unconstitutionality, which may be initiated by a court of appeal or the Supreme Court ‘when the solution of a dispute is subject to an assessment of the consistency of the provisions of a law or the stipulations of an international agreement with the Constitution’.²⁵³ In such cases the petitioning court shall defer ruling on the dispute until the Constitutional Council has ruled on the matter.

5.2.2 Prisons

The state of Senegal has addressed, with very mixed results, the issue of lengthy pre-trial detention, alternatives to imprisonment and the renovation of Senegalese prisons.²⁵⁴

1. –The Criminal Code²⁵⁵ and the Code of Criminal Procedures²⁵⁶ have been revised respectively to introduce new sanctions and alternatives to imprisonment²⁵⁷ and to introduce, in the Senegalese judiciary, a judge responsible for enforcing sentences and two new bodies specifically responsible for dealing with issues relating to the adjustment of sentences.²⁵⁸
2. –The concept of ‘community service’²⁵⁹ has been introduced into the Criminal Code as a substitute for a prison sentence of up to six months to enable a convicted person to perform 30 to 300 hours of work for a public law legal person or a public utility organisation.²⁶⁰
3. –The prison computer system has been upgraded to facilitate the decongestion and renovation of prisons.
4. –To address prison overcrowding, a new 1 500-place detention centre was built in Sebikotane to relieve congestion in Dakar, and some measures were taken to build six new departmental remand prisons with 500 places each, and the remand prisons in Thiès, Foundiougne, Fatick and Koutal were renovated to either create units for minors and women or to increase the prison’s capacity.
5. –Numerous measures have also been taken to improve the living conditions of detainees: Libraries, telephone booths, televisions and fans have been installed in several prisons, a medical-social centre and a dental surgery have been built to relieve congestion in the special wing of the Aristide Le Dantec Hospital and to provide care to detainees in the Dakar region.

As a result of these improvements, between 2013 and 2018 the amount of the allowance per prisoner and per day has increased from cfaf 600 to cfaf 1 023 and the juvenile penal population has decreased from 4,1 per cent to 1,8 per cent. The only major problem continues to be the occupancy rate in Senegalese prisons, which averaged 230 per cent during the period covered by this report.²⁶¹ With the increased number of prisons, the government is considering the adoption of an order setting out the standards for accommodation in prisons and the ratio of supervisors per prisoner.

5.2.3 Women

In dealing with the HRCttee’s concern about the ‘continued existence’ of laws and customs, in particular those affecting equality between men and women, which impede the full observance of ccpr,²⁶² Senegal undertook to reduce inequalities in the participation of women in political life and institutional governance. In addition to the clear provisions of the Constitution on equality between men and women, the country adopted a law establishing absolute parity between men and women²⁶³ in elected and semi-elected positions²⁶⁴ and an observatory²⁶⁵ responsible for ‘the implementation, follow-up, monitoring and evaluation of protection and security measures to prevent and combat inequalities between men and women at all levels of life in society’.²⁶⁶ Bodies hitherto inaccessible to females are beginning to open up to them,²⁶⁷ and administrative measures have been taken to remedy the gender gap in the civil service. Women’s representation in elected institutions and the republican security forces has improved significantly (42 per cent in Parliament; 47 per cent in local authorities (municipalities and departmental councils); 22 per cent in the police;²⁶⁸ 11 per cent in the armed forces and the gendarmerie) but remains relatively low in the rest of government (23,4 per cent in the civil service; 23 per cent in the diplomatic service; 17 per cent in the judiciary; and only 1,58 per cent in territorial government).²⁶⁹

The implementation of the Gender Parity Law was severely tested during the 2014 local elections. First, there was the refusal of the ruling coalition, Benno Bokk Yakaar, to apply total parity on the electoral lists in the commune of Touba-Mosquée – a holy city built on the values of Islam. Second, there was a different interpretation of the law by Senegalese courts, which required the supreme judge to step in and set the record straight. In the first case, the Independent National Electoral Commission (cena), to save face following this religious insubordination, had to step in and grant a special status to the holy city to organise the ballot in that part of the country,²⁷⁰ before recommending to the public authorities, once the ballot was over, to revise the law in order to take into consideration the ‘sociological dimension’²⁷¹ of the realities of Senegal.

In the other case, resistance to parity, observed in the Ministry of the Interior²⁷² and the judiciary, especially at the Kaolack Court of Appeal, was resolved by the Supreme Court’s clarification of the spirit and letter of the 2010 Act. While the General Local Government Code was clear on gender parity in the offices of these elected bodies,²⁷³ the Kaolack Court of Appeal, hearing a legal action for an annulment of the election of members of the City Council Bureau, rejected the request on the grounds that the free and individual nature of a mayoral candidacy did not allow for the application of the Parity Act, which ‘did not provide for the practicalities of respecting parity in elections with individual candidates, such as mayor or deputy mayor elections’.²⁷⁴ On the other hand, the Dakar Court of Appeal, dealing with the same subject, noted that ‘Article 1 of Act No. 2010–11 of May 28, 2010 establishing absolute gender parity in all fully or partially elective institutions and Article 2 of Decree No. 2011–819 of June 16, 2011 implementing the said Act, require the election, within the Municipal Council, of a board composed of persons of both sexes alternately’.²⁷⁵

It took two ‘historic’²⁷⁶ Supreme Court²⁷⁷ decisions, one overturning the decision of the Kaolack Court of Appeal and the other upholding that of the Dakar Court of Appeal, to make it clear that

1. –the 2010 Act was designed to ‘correct women’s under-representation in politics’;
2. –the Municipal Council, its board and commissions are part of fully or partially elective institutions;
3. –the spirit of the Act, which entails promoting the equal access of men and women to electoral mandates and elective functions in order to correct women’s under-representation in political bodies, must always be the guiding light for judges, whenever they are called upon to interpret their relevant provisions.

Following these two decisions, the election of the members of the board of the Keur Massar Municipal Council was re-run, while in Kaolack the complainants were disqualified from the municipal team, which had close ties with the ruling party and was tacitly complicit with the authorities who took no action to implement the Supreme Court’s decision. This confirms, once again, that the state of Senegal is not yet prepared to implement its obligations under the Convention by confronting the powerful Muslim brotherhoods head-on, even if it means alienating the support of human rights organisations.

5.2.4 Impact of Views on Communications

The HCttee found Senegal in violation of ccpr in three cases: Famara Koné v Senegal (ccpr/c/52/d/386/1989); and Karim Meissa Wade v Senegal (ccpr/c/124/d/2783/2016). The views of the UN human rights bodies have had mixed fortunes in their implementation by the Senegalese authorities, as some of them helped to bring about changes in the Senegalese judicial system, especially with regard to lengthy litigation²⁷⁸ and the hearing of the most serious cases of crimes²⁷⁹ while others, politically sensitive, were simply ignored.

When the csdh met, at a formal request of the President of the Republic in 1997, to discuss the implementation of the views of the HRCttee on the Famara Kone case, a number of solutions were proposed not only to give a fair compensation to the victim but also to deal with the delays in trials and to give the possibility, under Senegalese law, to victims of such human rights violations, the right to seek a remedy. It took a few years to implement the proposals of the csdh, partly because Famara Kone was not satisfied with the compensation proposed. After a few additional negotiations, the victim accepted a piece of land, a sum of 4 million cfa to build his house, and permanent medical support, as he was suffering from mental health problems.

Regarding legal reforms requested by the HRCttee, the csdh recommended that the President have the Code of Criminal Procedure revised to make it impossible for people to be held in prolonged pre-trial detention and establish a compensation mechanism for victims of long and arbitrary detention. The new laws were passed and enforced in 2008 and 2016 to align Senegalese legislation with ccpr. Today a Compensation Commission for victims of lengthy pre-trial detention²⁸⁰ exists at the Supreme Court and individuals are granted fair compensation by the state for mistakes made by Senegalese courts in relation to their detention. So far it has made a few interesting decisions regarding long and unlawful detention in Senegalese prisons.²⁸¹ The Code of Criminal Procedure was reviewed in 2016 to, among other issues, ‘combat prison overcrowding and prolonged detention’²⁸² as denounced in the case. The op-cat was ratified to allow the creation of a national mechanism to monitor the conditions in which people are detained or transferred in order to ensure compliance with their human rights and prevent torture,²⁸³ and its principal officer submits an annual report on the situation in Senegalese prisons.²⁸⁴

In a more politicised case, that of Karim Meissa Wade, the request of the HRCttee to Senegal to review the conviction and sentencing of a former Senegalese minister who was accused of corruption and mismanagement of public resources²⁸⁵ was rejected by the Senegalese authorities on the basis that it was in contradiction with a ruling of the ecowas Court of Justice²⁸⁶ on the same subject and that ‘the Head of State cannot review a trial and … cannot make a citizen pay compensation either’.²⁸⁷

The implementation of the views of the HRCttee in the Karim Wade case was raised during the review of Senegal’s periodic report by the HRCttee in October 2019. Answering a question from a member of the Committee regarding the implementation of its views, the Human Rights Director replied: ‘Senegal is not refusing to pay compensation, but requests the person concerned to come forward so that the judges in charge could determine the extent of the prejudice. We are ready. If the person concerned refers the matter to the competent courts to seek redress, there is no obstacle to the State of Senegal granting such redress.’²⁸⁸

The official’s statements, which were perceived as an acknowledgment of the Senegalese government’s responsibility in that politically-charged affair,²⁸⁹ were quickly refuted by the country’s senior authorities who, a few days later, dismissed the Human Rights Director from his position. President Macky Sall’s spokesperson, who justified the ministerial decision²⁹⁰ to remove him from office, nevertheless recognised that there was an urgent need ‘to initiate (national) procedures, especially in matters of criminal law and criminal procedure, in order to align them with the international standards on the basis of which Karim Wade’s trial was appraised on the international scene. It was no longer enough to abide by our domestic law; it was necessary to adapt and align it with these standards.’²⁹¹

5.2.5 Other Impact

The concern related to the fact that foreign workers were barred from holding official position in local trade unions was directly addressed by article L 9 of the Labour Code, which was adopted a few weeks after Senegal’s appearance before the Committee,²⁹² and by article 12 of the 2001 Constitution. Similarly, recommendations on ethnic minorities were effectively addressed by the 2001 Constitution²⁹³ and the numerous agreements on the crisis in Casamance. Keeping the public informed of the Committee’s meetings and findings is still the Achilles heel of the Senegalese authorities. This task which, in principle, is the responsibility of the Human Rights Directorate and the National Advisory Council on Human Rights, has not been properly carried out by the state’s bodies. Professor Ismaïla Madior Fall, a former Minister of Justice, had made it a habit, after each round of talks with UN mechanisms, to organise a meeting with the media²⁹⁴ to brief them on the positions defended by Senegal before these bodies. His successor did not deem it useful to maintain these meetings, which forced citizens to rely on the Senegalese media, especially newspapers, which were now beginning to cover committee sessions on a regular basis, especially when covering current events, as was the case in 2019 with the Karim Wade case.²⁹⁵

5.3.1 Non-discrimination

This component has been of great interest of cescr to the Senegalese authorities over the past 20 years because of the scale of discrimination against women in the country. Unfortunately, legal, political, economic and institutional efforts have yet to achieve the critical mass needed to reverse the trend in favour of women:

1. –at the legal level, efforts focused on women’s fiscal autonomy,²⁹⁷ the suppression of discriminatory provisions to enable women civil servants,²⁹⁸ administrative contract²⁹⁹ workers or employees³⁰⁰ to take care of their husbands and children, especially in medical care, the reduction of gender inequalities in agricultural activities³⁰¹ and the opening-up of certain professional trades to women,³⁰² the guarantee of the right to education for pregnant girls³⁰³ and the equal participation of women and men in politics;³⁰⁴
2. –at the political level, strategies have been developed to include gender equality and the autonomy of women and girls in national development plans;³⁰⁵
3. –at the economic level, programmes,³⁰⁶ projects³⁰⁷ and funds have been set up³⁰⁸ to address the concerns of women living in poverty and to promote positive discrimination in favor of women, especially rural women;
4. –at the institutional level, the establishment, at the Ministry of Justice, of a committee to review laws and regulations discriminating against women³⁰⁹ and of a Delegation-General for the Rapid Entrepreneurship of Young People and Women.

More specifically, with regard to women’s access to land and security of tenure, discrimination persists despite the enshrinement of the principle of equal access to land, due to social, political and cultural constraints, including difficulties in accessing financing mechanisms, production factors, agricultural extension services and, more importantly, the effects of climate change, which is drastically reducing the amount of arable land. Observing that between 2014 and 2017, women’s access to land only increased from 13,8 to 28,8 per cent,³¹⁰ the government in 2018 decided to expedite this process by applying a quota policy.³¹¹

5.3.2 Protection of Families

This is an area where the Senegalese administration has progressed ‘at a snail’s pace’ due to social and religious constraints. Calls for amendments to the Family Code³¹² relating to paternal authority (article 152), the minimum marriage age for girls (article 111), the selection of the household’s residence (article 153), the prohibition of paternity testing (article 196), as well as the issue of medical abortion and the nagging issue of child begging, have not yet been met, and there are indications that they will not be in the immediate future, unless the Instruments Review Committee decides to take up these requests.

5.3.3 Right to Health Care

Fulfilling economic and social rights in a poor country such as Senegal can be extremely difficult, especially when the resources essential for the enjoyment of such rights are lacking. This is the case, in particular, for the right to health care, with respect to which the Senegalese authorities were asked, in 2001, to remedy the lack of hospitals and health facilities by distributing these equitably throughout the national territory and encouraging medical personnel to work elsewhere than in the major cities in the western part of the country. Guided by the Constitution, which imposed ‘the duty to take responsibility for the physical and moral health of the family’ and the obligation to ‘guarantee to those living in rural areas,³¹³ in particular, access to healthcare services and well-being’, the government established a national health policy.³¹⁴ Under this policy, in principle, ‘all individuals, all households and all communities have universal access to quality promotional, preventive and curative health services without any form of exclusion’.³¹⁵

An increase in the annual health budget,³¹⁶ the introduction of a self-financing system for health facilities, the implementation of an emergency plan for the modernisation³¹⁷ of border road networks³¹⁸ and the state’s efforts to ensure that certain social categories³¹⁹ have equal access to health services have, unfortunately, failed to significantly reduce the gap between rural and urban areas.

Although between 2011 and 2015 new medical infrastructures were built up inside the country,³²⁰ major heavy equipment was acquired by the government³²¹ and mobile health services were set up, especially in hard-to-reach areas. However, due to the lack of an effective mechanism for forward-looking management of jobs and skills in the sector, the low contribution of local and regional authorities to health financing because of limited resources, a decrease in the state’s financial partners’ contribution to health financing,³²² the high level of household contributions to health expenditure³²³ and the huge disparities in the availability of certain basic commodities required for the installation of health facilities,³²⁴ the government is finding it difficult to honour its obligations under the Convention.

For the time being, the Senegalese authorities seem to be setting their sights on a Universal Health Coverage Programme (cmu), launched in 2015, which aims to extend basic health coverage to at least 80 per cent of the country’s population by 2021 through community-based mutual health insurance, and a national family security scholarship programme started in 2013, of which the ambition is to help break the intergenerational transmission of poverty, increase household resilience and foster the development of human capital in rural areas.

The cat Cttee found Senegal in violation in one case: Souleymane Guengueng v Senegal (cat/c/36/d/181/2001). The implementation of the cat findings was laborious because of the sensitivity of the issue being dealt with, that is, the trial of former President Hissène Habré accused of having ordered the torture of his opponents in prison when he was the President of the Republic of Chad. Following the rejection of the complaint by the Senegalese courts, the victims seized cat which found that Senegal was obliged to adopt the necessary measures, including legislative measures, to establish its jurisdiction over the acts referred to and to submit the present case to its competent authorities for the purpose of prosecution or, failing that, since Belgium has made and extradition request, to comply with that request, or, should the case arise, with any other extradition request made by another state, in accordance with the Convention.³⁵⁴

The Senegalese authorities refused to extradite former President Hissène Habré to Belgium and turned to the African Union for a solution to the legal crisis it had created. Finally, a decision of the African Union³⁵⁵ authorised the government of Senegal to put the former Chadian President on trial in Senegal. As a result of this decision, a law was passed to create the Extraordinary African Chambers attached to the Senegalese courts to put Hissène Habré on trial and convict him.³⁵⁶