Back to square one for justice in Burkina Faso

Bad times for the judiciary in Burkina Faso. At least five judges are currently deployed on the front line of the fight against “terrorism”. Harouna Yoda, the public prosecutor at the high court in Ouagadougou 1, Roger Zoungrana, his colleague at the high court in Bobo-Dioulasso, and three other judes have been out of the courtroom since 14 August 2024. They were requisitioned by the regime of the Patriotic Movement for Safeguard and Restoration 2 (MPSR 2), the junta that took power on 30 September 2022, on the pretext of stepping up the fight against jihadist groups¹. Over the past two years, dozens of men - political opponents, activists and trade unionists - have been arrested and sent to the war front.

The decisions of the administrative courts of Ouagadougou and Bobo-Dioulasso prohibiting the deployment to the front of these judges and others before them have been trampled ignored, as have several other court decisions that do not suit the new leaders of Burkina Faso. Faced with the refusal to comply with court rulings, the Bar Association observed a five-day work stoppage from 4 to 8 June 2024. Without “the respect and enforcement of legal decisions with regard to all persons [...] our mission and that of the rule of law are in vain”, according to the press release from the then President of the Bar, Siaka Niamba.

“Clean up the justice system”

The tension between the judiciary and the government came to the fore on 28 July 2023. On that day, soldiers from the National Intelligence Agency (ANR) burst into the Ouagadougou 2 High Court to extract Larissa Amsetou Nikiema, a healer who had just been placed under a committal order by the prosecutor’s office after some of her relatives had assaulted an individual. This armed intrusion into the court sent shockwaves through public opinion and, above all, through the judicial system. Since then, the judiciary has been in the sights of the authorities.

Although the healer said in an interview with the Burkinabe media minute.bf that she had “no links with the Head of State”, thus responding to rumours that she had influence over Ibrahim Traoré (“IB”), many people are still wondering about the reasons for her exfiltration. On 11 July, a few days before this episode, the Head of State (who became President of Faso after giving himself another five years at the head of the country) had called on a crowd of activists “to clean up the justice system”.

All the judges who were caught red-handed, who have cases before the courts, are going to be tried... Injustice is a scourge that destroys society. We’re warning them, he said. [...] I don’t understand how there can be justice for the poor and justice for the rich. That can’t go on. When a poor person has a legal problem, they can be caught and put in prison without trial for a long time. When another citizen has a problem in court, as long as he can get one or three lawyers, his case is quickly dealt with. While the poor man is languishing in prison. We can’t accept that.

One month later, a number of judges who were highly regarded for their commitment to the fight against corruption and economic crime were removed from office. In recent years, Prosecutors Yoda and Zoungrana led the prosecution services of the economic and financial divisions of the Ouagadougou and Bobo-Dioulasso courts, with tangible results. In particular, they succeeded in bringing several cases to trial and convicting leading figures from the political, economic and even judicial spheres².

A worrying step backwards

A turning point was reached on December 6, 2023. On that day, the Council of Ministers gave the go-ahead for the transmission of a bill to revise the Constitution. But Burkina Faso’s three judges’ unions, the Syndicat autonome des magistrats du Burkina (Samab), the Syndicat burkinabè de magistrats (SBM) and the Syndicat des magistrats burkinabè (SMB), voiced their disapproval of the process, criticising irregular and non-consensual nature. The new reform of the High Judicial Council (CSM) was nevertheless validated on December 30, 2023.

It allows non-judges to sit on the Council. It also places public prosecutors under the control of the Minister of Justice. While the presence of “non-judges” has long been debated as a way of avoiding corporatism within the “CSM”, the subordination of members of the public prosecutor’s office to the authority of the Minister of Justice sounds like a step backwards.

For judges, this is a serious reverse. Following the popular uprising of October 30 and 31, 2014, which led to the fall of Blaise Compaoré after twenty-seven years in power, the Burkinabè had made a number of advances, notably in the field of justice. Several emblematic cases were reopened, including the 1987 assassination of former head of state Thomas Sankara and twelve of his comrades.

In 2015, the Transition government convened a series of meetings that led to the adoption of the National Pact for the Renewal of Justice. This text notably disconnected the judiciary from the executive by ejecting the President of Faso and the Minister of Justice from the “CSM”. Before 2015, this body was chaired by the President of Faso. With this reform, this function was devolved to the First President of the Court of Cassation, with the First President of the Council of State assuming the vice-presidency.

A familiar target

This was all the more of a breakthrough at the time, given that Burkina Faso’s justice system, which was inspired by the French judicial system, had always been the target of the various political leaders who had succeeded one another at the head of the country. Under the National Revolutionary Council “CNR”, led by Captain Thomas Sankara from 1983 to 1987, Revolutionary People’s Courts were created. Public law professor Salif Yonaba, in his book Indépendance de la justice et droits de l’homme (PIOOM, 1997), explains their genesis as follows:

The existing judicial system is presented as a neo-colonial, anachronistic instrument, enabling a minority class to preserve its illegitimate and iniquitous privileges. The tone was set, and new institutions had to be set up, in line with the revolutionary philosophy in their conception and inspiration. The first founding act of this new organization [...] was the creation of the People’s Courts of the Revolution (TPR) by an ordinance of October 19, 1983.

At that time, judges such as Abdouramane Boly (General Secretary to the Minister of Justice) and Christophe Compaoré (examining judges at the Ouagadougou Tribunal de Grande Instance) were dismissed. Judge Boly was even forced into exile.

After the coup d’état of October 15, 1987, which put an end to the Sankarist revolution, Blaise Compaoré took power. Under his twenty-seven-year reign, the independence of the judiciary was once again undermined. Politically-motivated blood crimes - notably the assassinations of Thomas Sankara, journalist Norbert Zongo on December 13, 1998 and student Dabo Boukari on May 19, 1990 - remained unsolved. Blaise Compaoré chaired the High Council of the Judiciary, and his Minister of Justice was also a member. Heads of jurisdiction, public prosecutors and heads of registry were directly appointed by the Ministry. In addition, public prosecutors and their deputies were subject to the authority of the Minister. Judges were forbidden to strike. The expression “acquired judges” became a common phrase.

The Transition established after the October 2014 insurrection enabled Burkina Faso’s justice system to live up to popular expectations. After his election in November 2015, President Roch Marc Christian Kaboré was forced by the historic strikes by judges in January and February 2016 to implement reforms stemming from the National Pact for the Renewal of Justice. This did not prevent his government from interfering in certain judicial matters. For example, the executive opposed the arrest warrant issued against Guillaume Soro, then president of Côte d’Ivoire’s National Assembly, by the investigating judges in charge of the failed putsch of September 2015³.

“It opens the door to executive interference”

The recent constitutional reform is part of this long history of attempts at political interference in the judiciary. It “aims to subject public prosecutors to the authority of the Minister of Justice, paving the way for executive interference in the action of the judiciary, in the sense that this minister could slow down or prevent the action of the judiciary, or even intervene on an ad hoc basis in ongoing legal proceedings”, said the High Council of the Judiciary in a note dated December 29, 2023.

While the Minister of Justice, Rodrigue Edasso Bayala, maintained at the time that the reform met the need for efficiency in the conduct of criminal policy, the “CSM”, then headed by the First President of the Court of Cassation, Jean Mazobé Kondé, considered that the implementation of the mechanisms provided for in the Code of Criminal Procedure already enabled the government to enforce its criminal policy, without the need to grant it the power of appointment, assignment and grading, as well as authority over prosecutors:

This provision, which makes the appointment and assignment of public prosecutor’s subject to the proposal of the Minister of Justice, is a reminder of our country’s recent history: it opens the door to executive interference in the judiciary, and to the promotion of judges in the pay of the political authority that proposes and appoints them.

According to the “CSM”, its “composition must enable it to guarantee its independence, as recommended by the various international and regional legal instruments relating to the independence of the judiciary, which agree on a Council composed exclusively or predominantly of judges. In any case, in all countries where a similar body exists, judges are always in the majority, in number, in its composition”.

The wind of protest

Since then, the advances stemming from the Pact for the Renewal of Justice adopted in 2015 are no longer relevant. Ibrahim Traoré’s version of the “CSM” is on the march. Union structures are no longer represented. Judges elect their representatives to the “CSM”. As a result, the election held in June 2024 was boycotted by the overwhelming majority of judges.

Of the 647 judges making up all the electoral colleges, 53 took part in the elections for representatives of the various grades - the other 594 abstained⁴. “This abstention [is] historic, despite the unhealthy, multi-faceted strategies used by the Ministry of Justice and other underground players to try and thwart the call to duty addressed to judges”, the unions said on June 30.

Faced with the fate of the judiciary, Burkina Faso lawyer Prosper Farama joked at the time: “If we want, we can even abolish justice in Burkina Faso. Let’s decide: if we don’t want any more justice, if we don’t want any more law in Burkina, let’s have a consultation, let’s abolish the legal profession, let’s abolish the judiciary, there’s nothing left, no more clerks, everyone will go [and find] another job. And then, we’ll give it a try and see if it works.”