HUMAN RIGHTS COMMITTEE REVIEWS THE REPORT OF SENEGAL, RAISES CONCERNS ABOUT LIMITS ON PRESS FREEDOMS AND ON CIVIC SPACE

The Human Rights Committee today concluded its consideration of the fifth periodic report of Senegal on the implementation of the International Covenant on Civil and Political Rights.

The Committee Experts discussed, among others, restrictions affecting civic space and the suspension of civil and political rights, including the exclusion of opposition candidates from the 2019 presidential elections; the continued criminalization of press offences and threats and intimidation of journalists and human rights defenders; and the scale of exploitation and abuse of 100,000 talibé children in daara, Koranic schools.

The delegation said that the Government had done its best in drafting the new Press Code, which the deputies in the National Assembly had rejected because they deemed that the punishment of journalists must be kept. The articles of the Criminal Code relating to acts against public safety, insults, offences against the Head of State and different forms of defamation were applicable to all citizens and not exclusively to journalists and human rights defenders.

Senegal, the delegation continued, was the only country in Western Africa that had defined forced begging as a form of trafficking in persons, which was severely sanctioned. The Government was committed to reforming the Koranic schools and it believed that the law – soon to pass through the National Assembly - would contain many measures to prevent the exploitation of talibé children.

In the dialogue, the Committee Experts commended Senegal for its openness and transparency in acknowledging the problems in the country. They, however, decried the excessive and politically-motivated use of force by the police, as had been the case in opposition-led demonstrations in 2018. The measures taken to shed light on past human rights violations, and to establish the truth and provide reparation to victims, particularly in relation to the conflict in the Casamance, were not enough, the Experts also said. They were particularly concerned that the 2004 Amnesty Law was not compatible with the provisions and the spirit of the Covenant. Concerns were also raised about the conditions of detention, prison overcrowding, which in some cases was as high as 365 per cent, and excessive and practically unlimited pre-trial detention.

At the beginning of the meeting, Samba Ndiaye Seck, Director for the Promotion of Human Rights and Good Governance, Cabinet of the Minister of Justice and the Guardian of the Seals of Senegal, stressed the importance that Senegal attached to the Committee’s mandate and to the effective implementation of the Covenant, which enjoyed primacy over national laws and was directly applicable in the national legal order in Senegal.

The general peace agreement of 30 December 2004 between the Government and the Democratic Forces for the Casamance had eased the situation in this region. Regrettably, however, violence was being still committed by unidentified armed groups and there were landmine victims. All confessions extracted under torture – as prescribed by the Covenant and the legal provisions in force – were forbidden and all judicial procedures based on such confessions were thrown out.

Fatou Gaye, Minister-Advisor at the Permanent Mission of Senegal to the United Nations Office at Geneva, concluded by stressing Senegal’s commitment to overcoming the challenges and doing more and better to promote and protect human rights.

Yuval Shany, Committee Vice-Chair, in his concluding remarks, acknowledged the strong democratic traditions in Senegal and urged greater attention to press freedoms and the space for opposition politicians and human rights defenders to freely operate.

The delegation of Senegal consisted of representatives of the Ministry of Justice, Ministry for Foreign Affairs and Senegalese Abroad, and the Permanent Mission of Senegal to the United Nations Office at Geneva.

The Committee will issue its the concluding observations on the report of Senegal at the end of its one hundred and twenty-seventh session on 8 November. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.

All public meetings of the Human Rights Committee are webcast live at http://webtv.un.org/ while the meeting summaries in English and French can be accessed at the United Nations Office at Geneva’s News and Media page.

The Committee will next meet in public at 3 p.m. this afternoon to review the sixth periodic report of Belgium (CCPR/C/BEL/6).

Report

The Committee has before it the fifth periodic report of Senegal (CCPR/C/SEN/5) and its replies to the list of issues (CCPR/C/SEN/Q/5/Add.1).

Presentation of the Report

SAMBA NDIAYE SECK, Director for the Promotion of Human Rights and Good Governance, Cabinet of the Minister of Justice and the Guardian of the Seals of Senegal, introducing the report, stressed the importance that Senegal attached to the Committee’s mandate and to the effective implementation of the International Covenant on Civil and Political Rights, which, according to article 98 of the Constitution, enjoyed primacy over national laws and was directly applicable in the national legal order. The creation of political parties – considered as associations and governed by the common law - was free. Senegal had had a comprehensive multi-party approach since 1981 and all of the more than 100 political organizations were free to enter elections. The Electoral Law had been adopted with a large consensus. Votes were counted by commissions composed of political parties and presided over by a judge, while conflicts were resolved by the Constitutional Court.

Act 3 for decentralization, adopted in 2013, led to decentralization throughout the country and strengthened the financial autonomy of the decentralized units. The reform had the advantage of distributing skills between the central governments and territorial units for a better harmonization of local development efforts. A national development programme and a programme to strengthen local governance had been adopted, in addition to the fund for local government and the fund for decentralization.

The general peace agreement of 30 December 2004 between the Government and the Democratic Forces for the Casamance had eased the situation in this region. Regrettably, however, violence was still being committed by unidentified armed groups and there were landmine victims. Rare arrests in the region and the detention of individuals suspected of insurrection, violence or aggression were followed by investigations and were not at all arbitrary. All confessions extracted under torture were forbidden as prescribed by the Covenant and the legal provisions in force, and all judicial procedures based on such confessions were thrown out. A programme to develop this region had been put in place, while the project for the development hub of the Casamance focused not only on agricultural development and supply chains but on disarmament, demobilization and reintegration as well.

The amendment to the Nationality Code in 2013 had ended the discriminatory treatment of women in the transmission of nationality by marriage, filiation or adoption. Several dispositions of the 2016 Constitution had strengthened gender equality, including in access to elected positions, in the right to work, as well as in the right to health and the right to a healthy environment. Sanctions for the crimes such as rape, excision, incest or sexual harassment had been strengthened.

The Labour Code guaranteed women’s rights in relation to maternity, while social protection rights and coverage were extended to the husband and children of employed women. The first national action plan to stamp out gender-based violence 2017-2021 was in place. One of its results was an increase in the number of women members of Parliament, from 24 per cent in 2012 to the current 44.6 per cent.

Senegal, Mr. Seck continued, had taken a number of measures to strengthen the prevention of torture, improve conditions of detention, and prepare prisoners for social reintegration. The Criminal Code contained the definition of torture as prescribed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The national prevention mechanism against torture was operational and several judicial procedures had been opened based on the reports of the National Observer of the places of deprivation of liberty.

Senegal was the first country that had ratified the Rome Statute and was actively supporting the International Criminal Court, including by conducting a ratification campaign among African countries and making a voluntary contribution of 50 million FCFA to its Victims Fund. It had transposed in its legal order the crimes against international public order, while the training of State agents on the prohibition of torture was assured. The will to reform and modernize the judiciary was evident in the adoption of the 2014 law which prescribed a new judiciary organization.

Questions by the Committee Experts

At the beginning of the dialogue, a Committee Expert noted that the report had been due in 2000 and asked the delegation to explain such the significant delay in reporting to the Committee. He also commended Senegal’s Constitution, which he said was one of the world’s best.

Noting the primacy of the Covenant and its direct application in the national legal order, the Expert said that the same principle should, by extension, apply to the Committee’s concluding observations and recommendations, which should be fully implemented. However, this did not seem to be the case. Were there any cases in which courts had applied the Covenant?

The Senegalese Human Rights Commission had been set up in 1987. In 2012, it’s A status accreditation had been withdrawn due to a lack of resources and a lack of transparency in the appointment of commissioners. Recently, the President had appointed as the head of the Commission a politician, a former mayor who was also an active member of the ruling party.

The Expert commended Senegal for its openness and transparency in acknowledging the problems in the country and welcomed its efforts to avoid impunity, as evidenced by a recent conviction of a police officer. This notwithstanding, the Expert decried the continued use of excessive force by the police, including to prevent demonstrations by the opposition in 2018. Even more worrying was the fact that the force was being excessively used for political motives. Was there a law that regulated the use of force?

Another Expert remarked that the measures taken to shed light on past human rights violations, and to establish the truth and provide reparation to victims, particularly in relation to the conflict in the Casamance, were not enough. She also raised concern that the 31 December 2004 Amnesty Law, which offered general amnesty, was not compatible with the provisions and the spirit of the Covenant. What was being done to ensure accountability for past human rights violations and to compensate the victims?

A comprehensive law on discrimination was lacking, the Expert remarked, and asked whether the definition of discrimination contained in the law covered all forms and all grounds of discrimination and whether it would lead to a review of the Criminal Code. The Committee had received information about infanticide – what specific steps were being taken to deal with the root causes?

Other Experts commended the progress made in achieving gender equality and absolute parity between women and men in Senegal, including the adoption of the law, the increase in the participation of women in Parliament, and the functioning of the National Observatory on Parity. De facto, however, women continued to be underrepresented. In the judiciary, for example, they represented only 18 per cent, while only 1.5 per cent of the agents of territorial authority were women. There were no women governors of prefects. What was being done to guarantee de facto gender parity, including through the use of temporary special measures?

The Family Code, although amended, was still not aligned with the Maputo Protocol or with the International Covenant, and it continued to create gender inequality. The Family Code still contained concepts such as paternal authority, polygamy, or husband’s preference which were contrary to equality between women and men in marriage.

The Committee was concerned that Senegal had rejected all Universal Periodic Review recommendations concerning the rights of sexual minorities. What measures were being taken to ensure the protection of such individuals from violence, discrimination and marginalization on the grounds of sexual orientation and gender identity?

Turning to violence against women and harmful traditional practices, an Expert welcomed the strengthening of sanctions for crimes such as rape, incest and female genital mutilation, a practice still wide-spread in the country. However, concern was raised about the poor implementation and the very low number of convictions for female genital mutilation, even though repression was a strong deterrent against this harmful practice.

The delegation was asked to explain why Senegal had not yet ratified the Second Optional Protocol to the Covenant concerning the abolition of the death penalty and the steps being taken to deal with apparent social resistance to the ratification, and the demands of some religious groups to reinstate the death penalty.

Was anything being done to decriminalize abortion in cases of rape, incest and foetal abnormality, the Experts asked, noting that such a measure would significantly reduce the number of women convicted for practicing abortion, which currently stood at 4 per cent. What was being done to reduce maternal mortality rates and was a process underway to remove from the law all provisions that discriminated against women?

On the conditions of detention, the delegation was asked how many individuals had died in custody over the past five years and what the causes of death had been. What was being done to reduce prison overcrowding, which in some instances was as high as 365 per cent? Had legal provisions been put in place to enable the implementation of the 2011 prison reform? The delegation was asked about concrete steps taken to eliminate torture and implement in practice its prohibition.

Replies by the Delegation

In response to questions raised on the primacy of the International Covenant on Civil and Political Rights over domestic legislation, the delegation said that its superiority was prescribed by the Constitution. Any citizen could invoke the provisions of the Covenant before the courts.

Senegal had experienced delays in reporting to human rights treaty bodies due to institutional obstacles that had arisen with the 2011 reforms. Measures had been taken to overcome the delay and today, Senegal’s reporting obligations were fully up to date.

Senegal was the first African country which had set up a national human rights institution, hailed as an example among its peers. Steps were being taken to ensure that it obtained the previously-held A status, including by increasing the funding by 40 per cent compared to 2012, while a building that would house the Senegalese Human Rights Committee would soon be completed. A decree on the appointment of the members of the Committee had been prepared and was awaiting approval; it would provide for the election of members by their peers rather than their appointment by the Head of State.

Sometimes, dealing with demonstrations led to an excessive use of force, the delegation said. The 1981 law provided for a regulatory framework for demonstrating, according to which demonstrations could take place based on a letter to the authorities by the organizers. Troubles usually happened when organizers went ahead with the demonstrations even though those were prohibited by an administrative act or when demonstrators had not been organized using the legislative framework. The police force was trained in the techniques of keeping public order and on the use of force, including during unauthorized demonstrations.

Torture had the same legal standing as other crimes against international public order, such as war crimes or crimes against humanity, and was punishable with 30 years in prison.

The 2010 law on parity required all elections - legislative, municipal, communal and local – to be subjected to absolute equality between women and men. If that criterion was not respected, the lists would be declared inadmissible. Senegal was very much at ease with this law, a delegate said, and noted that the courts had nullified local elections because the provisions of the law had not been applied.

In Senegal, women played a leading role in the socio-economic development of the country, particularly in the informal economy which accounted for 98 per cent of the national economy. Therefore, not too much attention should be paid to formalized and institutional arrangements, said the delegate.

Senegal had adopted the Amnesty Law in the context of the conflict in the Casamance peace agreement, to reassure the main players that they would not be prosecuted. This was not a general amnesty law but pertained to the atrocities committed by the rebels against local populations during the conflict in this region. Senegal remained committed to combatting impunity. Every person who had committed a crime would be investigated, prosecuted, tried and sentenced in line with the law.

As for the conditions of detention, the delegation said that criminal chambers were present in all the provinces and they sat regularly. This was contributing to the reduction of the rates of pre-trial detention. The refurbishing of Dakar prison was ongoing; it should be inaugurated soon and would reduce overcrowding in that prison. Other prisons were also being rehabilitated to fit internationally prescribed standards; this would also add 900 places to the prison capacity. Senegal would review the Criminal Code to examine the possibility of using electronic bracelets and other non-custodial sentences.

The National Observatory for the places of deprivation of liberty, the national prevention mechanism against torture, was attached to the Ministry of Justice but it still maintained its institutional autonomy. It had full independence, assured by the appointment of the Observer for a period of five years and by the management’s autonomy in the selection of staff and use of financial resources.

Infanticide was criminalized, the delegation said, adding that the number of such crimes had dropped sharply.

The delegation stressed that at its last Universal Periodic Review, Senegal had adopted the majority of the recommendations received - 128 out of 236. The recommendations that had not been accepted related to a number of issues, including sexual orientation and gender identity. The law did not ban homosexuality but it prohibited “acts against nature committed in public”. Therefore, there was no prosecution of homosexuals and the lifestyle they pursued in the privacy of their homes. Senegal was not yet ready to legalize homosexuality.

The Criminal Code criminalized “any act of sexual penetration without consent”, which included marital rape. A judge could invoke this article to sentence a spouse for such conduct against the other spouse.

Senegal had set up a national mechanism that brought together all relevant stakeholders in the promotion of human rights, including minority rights. A support project had been put in place to eliminate all forms of discrimination, especially discrimination against women, in law and in practice. Under the project, discriminatory legal provisions had been identified, which had provided a basis for a whole range of legislative proposals to amend the laws and bring them in conformity with human rights ideals and international standards.

The delegation said that although the Criminal Code did not specifically mention marital rape, judges took into account the elements of the crime, notably sexual penetration without consent, regardless of the fact that the perpetrator and the victim were spouses.

Senegal had abolished the death penalty and was on the right path to ratify the second Optional Protocol to the International Covenant on Civil and Political Rights related to the death penalty. The difficulty in actually ratifying this instrument was the lack of qualified staff in the Government of Senegal, since only one particular division in the Ministry for Foreign Affairs was in charge of ratification issues. The internal pressure to re-establish the death penalty would not deter Senegal from ratifying the Optional Protocol. Senegal was a very strong democratic State that always respected its international commitments, the delegation reaffirmed.

Electronic surveillance had become a very important tool to manage prison overcrowding. The lack of a relevant legal framework was an obstacle to carrying forward this work. The Government was working hard to fill this gap and to enable the negotiations with electronic surveillance companies. The delegation disagreed with the Experts’ stated concern about the rapid rise of the prison population. Currently, there were between 10,500 and 11,000 inmates in about 30 prisons, which was not much given the rapidly growing population of the country.

While religious leaders were very important in the fabric of the society, they did not have influence on legislation, a delegate said in response to questions related to the gaps in the Family Code. Senegal was drafting a Code on Children, which would take into account many of the issues not covered by the Family Code. The draft was currently with the Secretary-General of the Government and would subsequently be submitted to Parliament for adoption.

Women were free to exercise any profession they wanted and could hold positions in public offices. This right was guaranteed in law and in practice. There were public service competitions and examinations for women candidates only.

Questions by Committee Experts

In the next round of questions, Committee Experts addressed the questions of forced labour, trafficking in persons, and forms of slavery, noting with concern that 100,000 talibe children who attended Koranic schools were forced to beg by their teachers. Also of concern was the very low number of criminal investigations and prosecutions of those responsible.

The delegation was asked to inform about the full implementation of the rather strict law on trafficking in persons and related practices of 2005 and whether steps had been taken to amend the Criminal Code to prohibit, under any circumstances, forcing children to beg.

The Experts welcomed the drafting of the basic law on access to information and asked for additional details about this piece of legislation.

Could Senegal expedite the adoption of the draft law on refugees and asylum seekers of 2012 to ensure that it was fully aligned with international human rights law and to ensure that the identity documents that refugees and asylum seekers carried were recognized by all service providers and that they could move freely?

The Committee commended Senegal for establishing the Extraordinary African Chamber which had tried the former President of Chad Hissène Habré and found him guilty of crimes against humanity, war crimes and torture. Mr. Habré had been sentenced to life in prison and ordered to pay $154 million in compensation to the victims. Could the delegation update the Committee on civil claims in this regard?

The Experts noted that, according to the law, no one could be incarcerated without a court order. He raised concerns, however, about the excessive duration of detention and the fact that a person could continue to be held in custody if the prosecutor was not available. The situation was even more worrying when it came to charges of terrorism and of acts against national security, whereby detention could be prolonged for even longer periods of time.

Did Senegal maintain statistics on detention orders issued on the charges of terrorism or offences against national security? A person requesting a medical examination in torture complaints had to pay for the cost - what happened if they did not have the resources?

Pre-trial detention was authorized up to six months and Senegal was looking into extending it to three or four years in criminal matters. This would effectively mean that pre-trial detention in Senegal was unlimited, they noted with concern.

The Experts inquired about the root causes and types of violence against children, measures taken to prevent it, including in Koranic schools, and how the perpetrators – both family members, marabout Koranic teachers and others - were sanctioned.

A Committee Expert asked about the modernization of Koranic schools and the timetable for the adoption of the draft law that had been in the pipeline for almost 10 years. They reiterated the urgency of the reform, especially given the scale of the problem - 100,000 children suffering from all forms of abuse in those schools – and raised concern that the latest draft of the law was significantly weakened.

Stressing the critical importance of registering all children everywhere in Senegal immediately after birth, the Experts asked about birth registration rates throughout the country and the sanctions for late or delayed registration. What specific measures were being taken to prevent statelessness?

Although the press in Senegal was still relatively free, punishing journalists was still possible, the Committee noted with concern. On 20 June 2017, Parliament had voted on law 2017/27 related to the Press Code, which maintained the criminalization of press offences. It was also worrying that human rights defenders and journalists were often threatened or intimidated, especially during elections. They were charged under different articles of the Criminal Code, including for acts against public safety, insults, offences against the Head of State and different forms of defamation.

The Committee was particularly concerned that the Criminal Code still allowed for the suspension of civil and political rights, including the right to vote. Such a suspension had been applied in several times, including in the presidential elections held earlier in the year, when the Constitutional Council had excluded several opposition candidates from running.

Recognizing Senegal’s commitment to fighting corruption, Yuval Shany, Committee Vice-Chair, said that the National Office for the Fight against Fraud and Corruption had published in 2016 a very comprehensive report, which had been critical of the situation in the country. The head of the Office, however, had been dismissed shortly after. Should the Committee read anything into this, the Vice-Chair asked?

Replies by the Delegation

On access to information, following the reforms in April 2019 which had abolished the position of the Prime Minister, the Government had taken up the draft law on access to information to “clean it up”. The draft law contained several references to the Prime Minister and to the National Commission for Access to Information which had been under the Prime Minister. The draft law had been sent to various parts of the Government and would soon be reviewed in technical committees.

The draft Code on Children would address, inter alia, the issue of nationality and statelessness of children and would guarantee the right to nationality of all Senegalese children born abroad.

There were specific legislative procedures applied to minors. There was a special prosecutor for minors and a children’s court. Judicial and prosecutorial services regularly cooperated with the office of education and children’s services. Children’s courts existed in all large regions of the country. In places of detention, there were wings for minors who did not have any contact with adults. A procedure involving a minor could be reviewed at any time.

Lawyers were available throughout the country. The Ministry of Justice created incentives to encourage lawyers to move throughout the country.

On judicial independence, the delegation said that the President and the Minister of Justice were members of the Supreme Council of the Judiciary, but all other members were lawyers and judges. The Office of the Prosecutor was under the Ministry of Justice, which was in line with the practice in many other countries, and Senegal was convinced that this did not influence the work of the prosecutors in any way.

The delegation said that the President of the National Office for the Fight against Fraud and Corruption, who had published the comprehensive report in 2016, had stepped down in 2017 as her five-year term had expired. There were no problems between this Office and the executive, the delegation stressed.

Senegal had created the National Cell for the Fight against Trafficking in Persons, which coordinated the efforts by the police, gendarmerie and the judiciary. Senegal was the only country in Western Africa which had adopted the law that defined forced begging as a form of trafficking in persons and was thus severely sanctioned. Seven teachers in Koranic schools had been convicted of acts of violence against and abuse of talibé children. It was known that 66 per cent of the children begging in the streets of Senegal came from neighbouring countries. To date, more than 1,000 children had been taken off the streets; they had been reintegrated in their communities and families.

The Government was committed to reforming daara, the Koranic schools, and it believed that the law – soon to pass through Parliament – would not be weakened because it would contain many measures to prevent the exploitation of children. The Daara Project aimed to set up a collective of teachers in Koranic schools, which were regularly inspected by the inspectors of the Ministry of Education.

In response to questions raised on the civil claim for compensation in the conviction of Hissène Habré, former President of Chad, for war crimes, crimes against humanity and genocide, the delegation highlighted the judicial cooperation between N’Djamena and Dakar in the recovery of his assets. A mechanism had been put in place for the compensation fund, however, it was the responsibility of the entire international community – and not solely of Senegal - to ensure that victims were compensated.

The delegation provided data and statistics that the Committee Experts had demanded, noting that 53 cases of infanticide had been registered and that seven women had been detained for abortion. At the moment, there were 11,588 persons in Senegalese prisons; of those more than 7,000 had been convicted, while 4,503 were in pre-trial detention. The occupancy rate of prions was 274 per cent.

The delegation stressed that the articles of the Criminal Code relating to acts against public safety, insults, offences against the Head of State and different forms of defamation were applicable to all citizens and not exclusively to journalists and human rights defenders. Defamation in particular attacked the integrity and the honour of individuals and such acts must be suppressed to avoid a situation of anarchy.

It was also important to note, the delegate continued, that some human rights defenders were operating for political parties and were not neutral in many cases. The Government had done what it could, it had drafted the new Press Code and had submitted it to the National Assembly. However, the deputies had rejected it and had decided that the punishment of journalists had to be kept, because sometimes people had evil intentions.

A special unit under the Ministry of Justice was working on limiting the duration of pre-trial detention to a maximum of three years. A draft law would soon be sent to the National Assembly. Currently, 90 per cent of cases of lengthy pre-trial detention were linked to criminal cases. In others, pre-trial detention was limited to six months.

Concluding Remarks

FATOU GAYE, Minister-Advisor at the Permanent Mission of Senegal to the United Nations Office at Geneva, in her concluding remarks, said that since January 2019, Senegal had presided over the Human Rights Council, which reflected the country’s commitment to bolstering its cooperation with all United Nations human rights treaty bodies, including this Committee. Senegal would take all necessary measures to implement the recommendations it had accepted during its last Universal Periodic Review. There were still challenges to overcome, but the highest authorities remained fully committed to doing more and better to promote and protect human rights.

YUVAL SHANY, Committee Vice-Chair, in his concluding remarks, noted Senegal’s efforts to implement its obligations under the Covenant, including the legal reforms underway, the strengthening of the national human rights institution, and the decision to proceed with the ratification of the Second Optional Protocol. The dialogue would certainly continue on issues relating to discrimination, detention conditions and fundamental safeguards, children’s rights, and the civil space in Senegal. The Committee acknowledged the strong democratic traditions in Senegal and urged greater attention to press freedoms and the space for opposition politicians and human rights defenders to freely operate.


For use of the information media; not an official record


CCPR19.026E