Comparative law and justice/Mali

Part of the Comparative law and justice Wikiversity Project

Subject classification: this is a comparative law and justice resource.

Fleming 22:59, 7 February 2011 (UTC)

Basic Information

Mali's Flag

Location: Mali is located in the North Western part of Africa. It is landlocked, surrounded by Algeria, Niger, Burkina Faso, Côte D'ivoire, Guinea, Senegal, and Mauritania.
Capital: Bamako; population 1.628 million (2009)
Climate: Mali has a subtropical to arid Climate; from February to June it is hot and dry; June to November it is rainy, humid, and mild; November to February it is cold and dry.
Terrain: mostly flat to rolling northern plains covered by sand; savanna in south, rugged hills in the northeast, and the Niger River flows through the West.
Landmass: 1,240,192 sq km
Population: 14,159,904 updated for July 2011.
Age/Gender Breakdown: 0-14 years: 47.3% (male 3,372,717/female 3,325,188)

15-64 years: 49.7% (male 3,438,687/female 3,605,143)

65 years and over: 3% (male 199,862/female 218,307)

Ethnic groups: Mande 50% (Bambara, Malinke, Soninke), Peul 17%, Voltaic 12%, Songhai 6%, Tuareg and Moor 10%, other 5%
Languages: French is the official language, Bambara 80%, and other numerous African languages
Religions: Muslim 90%, Christian 1%, indigenous beliefs 9%

Brief History

Ancient Mali

Mali is the heir of to the succession of Ancient African Empiers, Ghana, Malinké, and Songhai. These empires were located in the West Africa Savannah and controlled the Shara trade. The Ghana Empire, centered along the Malian-Mauritanian frontier, was dominated by the Sonike/Saracolé people. From 700A.D. to 1075 A.D. it was a powerful trading state. The Malinké Empire originated on the upper Niger River in the 11th century. During the 13th century the empire expanded and reached its peak under the control of Soundiata Keita in 1325 in which Timbuktu and Gao were conquered. However, in the 15th century the Malinké Empire declined and only controlled a small amount compared to the 13th century. From 1465-1530 the Songhai Empire, under Askia Mohammad I, expanded its power from the center of Gao and expanded as far as Kano (in present-day Nigeria) including much of the Mali Empire in the West. In 1591 it was destroyed by the Moroccan invasion. During this time Timbuktu, of Islamic faith was the center of commerce.

The French

In 1880 the French military penetrated this area which they referred to as "Soudan". In 1890 the French aimed to control the interior but it was not until 1898, when the warrior Samory Touré was defeated after 7 years of war, that French resistance ceased. In 1956 the "Loi Cadre France's Fundamental Law was passed. This allowed the Territorial Assembly to form a cabinet with executive authorities and they gained extensive powers over internal affairs. After the 1958 French constitutional referendum, Republique Soudanaise became a member of the French community and enjoyed complete internal autonomy.

Independence of Mali

On June 20, 1960 Soudan became fully independent within the French Community when it joined Senegal to form the Mali Federation. Shortly after, on August 20, 1960 Senegal suceded and the federation collapsed. On September 22, 1960 Soudan withdrew from the French Community and declared itself the Republic of Mali. President Modibo Keita had dominated pre-independence politics and quickly declared a single-party state and to pursue a socialist policy based on extensive nationalization. In 1967 there was a decision to rejoin the Franc Zone because of the deteriorating economy. On November 19,1968 a group of young officers staged a bloodless coup and set up a 14-member committee for National Liberation with Lt. Moussa Traoré as chairman. In 1974 new constitution created a one-party state was established but the military remained in power. In September of 1976 the Democratic Union on the Malian People the "Union Démocratique du Peuple Malien" was established and based on democratic centralism. In 1979 Moussa Traoré was elected in the single-party presidential and legislative election. In 1980, student led, anti-government demonstrations which challenged President Moussa Traoré efforts to consolidate the single-party government were brutally shut down. In 1991, there was another student led anti-government demonstration only this time government workers and others supported it. After four days of rioting, 17-military officers arrested President Moussa Traoré and suspended the constitution. A draft constitution was approved in a referendum on January 12, 1992 and political parties were allowed to form. On June 8, 1992 the first democratic President, Alpha Oumar Konaré. Although there were attempts to renew national institutions in 1997, Alpha Oumar Konaré with the help of his very powerful ADEMA Party was reelected for a second term on May 11, 1997. In 2002 when his second and last term came to an end, retired General Amadou Toumani Touré, former head of state became Mali's second democratic President who was then reelected in 2007 for a second term.

Economic Development, Health, and Education

Economic Development

• GDP: $16.74 billion as of 2010.
  
• GDP per capita: $1,200 as of 2010
  
• Average Annual Income:
• Industries: food processing, construction, phosphate, and gold mining
  
• Imports: about $2.358 billion according to 2006, Mali imports petroleum, machinery and equipment, construction materials, foodstuffs, textiles, and according to 2009 Mali imported from Senegal (12.21%), France (11.57%), Cote d'Ivoire (10.05%), China (5.89%)
• Exports: about $294 million as of 2006, Mali exports gold, cotton, and livestock, and according to 2009 Mali exports to China (14.61%), Thailand (8.28%), Pakistan (6.74%), Morocco (6.48%), Burkina Faso (4.67%), France (4.6%), India (4.45%).
  

Health

• Infant Mortality Rate: 111.35 deaths/1,000 live births
  
• Life Expectancy: 52.61 years
  

Males: 51.01 years

Females: 54.26 years

Education

• Literacy: Percent of citizens over 15 years old who can read and write

Total: 46.4%

Males: 53.5%

Females: 39.6% (2003)

• Average Education Attainment

Total: 8 years

Males: 9 years

Females: 7 years (2009)

Governance

Mali is a Republic and this is there Constitution: http://confinder.richmond.edu/admin/docs/Mali.pdf The Republic consists of a President, Cabinet, National Assembly, Supreme Court, Constitutional Court, High Court of Justice, High Council of Territorial Collectives, and the Economic, Social, and Cultural Council. Laws are voted on in the National Assembly by a simple majority and in some cases an absolute majority.

Elections

The President is elected by absolute majority of cast votes through a two-round system to serve a 5-year term and can only serve one term. In order to be President one must be of Malian National Origin and have fulfilled the civic and political duties.

"The Constitutional Court shall control the regulation of these operations, make rulings regarding complaints, and proclaim the results of the election."

The Prime Minister is appointed by the President.

In the National Assembly 147 members are elected through a closed party-list majority system to serve 5-year terms.

The legal voting age is 18 years old.

Laws
According to the Malian Constitution, Article 75 states that laws are initiated by the Cabinet and the National Assembly. Article 70 declared that laws are voted on by a simple majority in the National Assembly. If the law to which the present Constitution confers the characteristics of an organization law then the proposal may be deliberated in the National Assembly and voted on after the end of the 15th day time period that it has been deposited into the National Assembly. It then can only be adopted by an absolute majority of the National Assembly and the organizational laws may only be promulgated after the declaration of the Constitutional Court of their conformity to the Constitution. If it is not an organizational law then look at article 75 in which it states that first, there is a deliberation in the Council of Ministers, then sent to the opinion of the Constitutional Court, and finally to be presented to the office of the National Assembly. Finally, Article 78 explains the final steps. The Prime Minister can discuss the responsibility of the Cabinet within the National Assembly’s plan either before the Assembly or by a declaration of the general politics of the Cabinet. Even furthermore the Prime Minister, after deliberation with the Council of Ministers, can engage in liability of the Cabinet before the National Assembly votes on the Bill, and in this case the bill is considered to be adopted. The only way for the National Assembly to prevent this is to pass a vote of no confidence which means that ten percent of the majority of the two tiers of the members composing the Assembly must sign the vote of no confidence within 24 hours. The National Assembly can also pass a vote of no confidence to defeat the action of the Cabinet but it must be done within 48 hours.

Judicial Review

The Judicial power is independent of both the legislature and executive branches. There job is to guard the rights and liberties stated in the Constitution. The Magistrates are selected by the President and cannot be removed.There is little information about how trials actually play out and this is most likely due to the amount of corruption involved. The government in Mali overall is not well functioning, however according to the Constitution and the way the court system is suppose to work it would be categorized as an adversarial system, there is suppose to be a presumption of innocence and therefore it would be understood that the burden of proof is on the prosecutor. This is not reality though, defendants are not treated fairly when they are finally put on trial.

Courts and Criminal Law

Courts
The Judiciary is composed of

•One Supreme Court in Bamako

•Three Courts of Appeal in Bamako, Kayes and Mopti

•Courts of Assises

•Courts of First Instance

•Constitutional Court

Other jurisdictions include

•Administrative courts

•Commercial courts

•Labor courts

•Special Jurisdictions for Minors

•Military courts

•The High Court of Justice

•Peace Justices with Extended Competences

•Special Jurisdictions

"Except in the case of minors, trials are public, and defendants have the right to be present and have an attorney of their choice. Defendants are presumed innocent and have the right to confront witnesses and to appeal decisions to the Supreme Court."

Punishment

Human trafficking is punishable from 5 to 20 years in jail. Domestic violence, including spousal abuse is tolerated, as well as assault in marriage even though this is considered a crime, police are reluctant to enforce it. There are no laws protecting children. There is a social service department which investigates and intervenes in cases of child abuse/neglect yet these cases are rarely reported. Child labor is a problem and children have been known to be sold to Cote d'Ivoire.Prositution is legal and there are inadequate laws for child pornography. Assault is punishable by prison terms of one to five years and fines of up to $1,000 and up to 10 years if premeditated. Rape is criminal but spousal rape is legal. Under the Constitution, torture and other cruel punishment is prohibited however, there have been reports of abuse by police officers. The death penalty in Mali has been abolished in practice, meaning that no one has been executed in the past 10 years and they may have established a practice for not carrying out executions.

Prisons
Prison conditions are bad, they are overcrowded, and besides for the capital Bamako, where a new prison was built in 2001, men and women are housed in the same prison but in separate cells. Juveniles in Bamako are housed in the same prison but in different cells. Food is scarce and medical facilities are inadequate. It has been estimated that about half of the prison inmates are waiting trial. Prison rates according to 2009 were about 52 per 100,000 people (6,700 inmates) which is an occupancy level of about 223.3%. According to ,2% were female inmates and 1.2% were juveniles. According to 2004 88.7% of inmates were pre-trial detainees. The government allowed prison visits by human right monitors however, nongovernmental organizations and other monitors had to submit a request which must be approved by the prison direction and the Ministry of Justice which can take up to a week.
There seems to be no evidence of rehabilitation, if over half of the inmates have not even been sentenced it would seem that rehabilitation would be the last priority.

Legal Personnel

Judges, Magistrates, etc
The Judicial Magistrate of the Supreme Court, also assisted by a Vice-President are both named by the President of the Republic.
The Constitutional Court is comprised of nine members called "Counselors" who hold office for seven years and can hold up to two terms. Three must be named by the President of the Republic and two must be jurists. Three must be named by the President of the National Assembly. Finally, three must be named by the Superior Council of the Magistracy. Counselors are chosen from professors of law, lawyers, and magistrates who have a minimum of fifteen years pf practice. However, the President of the Constitutional Council is selected by peers.
The President of the High Court of Justice is elected by the National Assembly.

Paralegals
Responsibilities and Activities

Informing the population in understandable language about their rights and obligations as citizens in accordance with the national positive law of Mali

Assisting citizens in relevant cases with legal advice

Formulating suggestions on how the national positive law can better be adapted to daily realities

Mobilizing human resources to prevent conflicts and participate in their resolution (e.g. attorney's at law and other legal professionals)

Running education programs for the population in villages.

Paralegals can be male or female and must know of the socioeconomic realities of the villages. Mali established a national curriculum for paralegals in 2006 which created the INFJ, the National Training Institution for the Judiciary.

Law Enforcement

Hierarchy & Structure
Mali is a Decentralized Multiple coordinated system. Mali is divided into 8 regions, each region is divided into 5-9 Districts (also called Cercles), which are then divided into Communes, which are finally divided into Villages (also called Quarters).
Armed Forces and National Guard: controlled by the Minister of Defense and Veterans The Armed forces has the Department of Defense at the top, then the Joint Staff, the Army, Air Force, and the Gendarmerie.
The Army's job is to defend territorial boundaries and is organized with the Chief of Staff at the top, under the Chief of Staff are the Military Regions, the Corps of Army, the Brigade, the Regiment, the Battalion, the Company, the Section, the Group.
The Air Force is to defend the territory, assist the army, and provide search and rescue of civilians. Rankings include Aeriel Zones, Bases, Wings, Squadrons, and Units.
Finally, is the Gendarmerie which exists to assist the military and the police. The Gendarmerie is ranked which the Squardron at the top, followed by the company, and unit.
Gendarmerie & local Police: Controlled by Ministry of Security and Civil Protection, they are both responsible for internal security, but the police are only subjected to the Urban areas.
Some of the Malian Military has been trained by the U.S., France, and Germany. Also, the Military has a two year selective compulsory and citizens are eligible at the age of 18. 9 10
Corruption
On a Scale of 0-10, 0 being the most corrupt and 10 being the lowest, Mali scored a 2.7 and ranked 116 out of 178 countries in 2010. 10
Orientation
Problem-Oriented Policing
Mali is a part of many organizations and has been working on things such as counter-terrorism activities.
Traditional Policing
Community interaction is low, corruption plays a significant role in Mali and citizens believe their system is corrupt.

Crime Rates and Public Opinion

Mali has one of the lowest murder rates in the World, 0.71 per 100,000 according to the Interpol data of 1998. However, according to the 2004 World Health Organization the homicide rate was 18 per 100,000. Other crime rates from 1998 per 100,000 people include 0.46 for rape, 0.05 for robbery, 1.45 for aggravated assaults, 0.77 for burglary, larceny was 0.94, and motor vehicle theft was 0.34. Human trafficking also occurs in Mali, children are sold and forced into unpaid labor. Mali seems to be working on this problem for instance they made a law that makes human trafficking punishable up to 5-20 years in prison, and when it involves a minor the punishments are usually more sever compared to when only adults are involved. If arrested, Malian police can hold an individual up to 48 hours without a charge. Overall, Mali has low crime rates, however, theft, pick pocketing, and other similar crimes often occur and most of the aggravated assaults are a response to an uneasy victim of these sorts of crimes. The actual crime rates are rare to find so the reliability is questionable. Mali would be categorized as having common law, it possesses a constitution and has an independent judiciary. There wasn't much about the public opinion of Malians criminal justice system but interestingly enough female genital mutation (FGM) is not against the law but the National Committee Against Violence Towards Women have been campaigning and trying to eliminate FGM. The government wants to educate the public to eliminate the practice, rather than making it illegal. Children have no protection of rights under the constitution and there is no juvenile court system. Women under the constitution are equal but equality is not necessarily enforced, women often don't know the laws very well and this is most likely due to the low level of literacy in the country being about 30% in 1998. The public cannot have much of an opinion when the public is not well educated.

Rights

Family Law

Marriage

According to the 2005 Amnesty International about 60% of girls in Mali marry before the age of 18.
Mali adopted a new code on August 3, 2009 that made the minimum legal age for girls to be 18 years, recognizing only secular marriage, and expanding legal rights to girls. However, this code must be approved by the President in order to become a law. A foreign woman who marries a citizen of Mali may register for citizenship after the marriage, with no residency requirements. A foreign man who marries a citizen of Mali may register for citizenship three years after the marriage.
According to the code of marriage and guardianship states that men have a right to a monogamous or polygamous marriage. A man can have no more then four spouses and each must constitute a household. It also states that the husband must give protection to the wife and the wife obedience to the husband..
The Malian penal code does not include any provision on marital rape. The Marriage and Guardianship code declares the legal age of marriage to be 15 for women and 18 for men however the Ministry of Justice can allow younger people to be married, usually in cases of pregnancy. According to the CLPR 22% of Malian women are married before the age of 15. The penal code prohibits forced marriages but in practice they still occur, sometimes both parties are not even present at the time of marriage. Polyandry is specifically prohibited. Although there are laws that give women certain rights in marriage they are not enforced. The marriage and Guardianship code says if a women has been divorced she must wait three months to remarry, and if widowed she must wait four months and ten days to remarry and men are not subjected to these rules. Men are the head of the household so it could be assumed that they make decisions about the family and kids however, men have to work and provide for families, and some even work overseas in Europe for up to ten years, in these situations it would seem that the women now acts as the head of the household, although she must still remain obedient to her husband. In addition, polygamy is customary in Mali and according to Mali’s National Bureau of Statistics from 1995 - 1996, 44% of married women live in polygamous unions.

Divorce

Either spouse can ask for a divorce however it is much more difficult for a women to get a divorce and even more difficult to get a no fault divorce. In a case where the wife is at fault or the husband and wife are equally at fault the women will receive no alimony. Because the Marriage and Guardianship code declared that women owe obedience to their husbands, he can be easily granted a divorce by saying she did not fulfill these duties, which can be as simple as not making him breakfast.

Adoption

In order for a married couple to adopt a Malian child one of the spouses must be at least 30 years of age, an unmarried man cannot adopt a Malian child, and an unmarried women can as long as she is at least 30 years old and can show proof of sufficient economic resources to support a child. There are no residence requirements to adopt however, Mali favors those who live in Mali or who once did.
There are two types of adoptions in Mali, adoption protection and adoption filiation. Adoption protection give custody over the child and must provide food, shelter, schooling and medical need. The adoptive parents, biological parents, or the Malian government can terminate the adoption at any time. Under certain circumstances with certain requirements Adoption Protection can obtain a visa to bring the child to the U.S. and finalize the adoption there. In adoption filiation the child must be under 5 years of age with parents who are deceased or unknown. The adoptive parents receive complete legal parental rights over the child. In order to adopt under adoption filiation the parent(s) must not have any legitimate children or descendants. Mali is party to the Hague Adoption Convention which means that a child must meet certain requirements in order to be adoptive, and that Mali attempts to have the child adopted in Mali before going inter-country. The Hague Adoption Convention also requires that the parent(s) who want to adopt must first be eligible to adopt in their country for example in the U.S. Finally, the government of Mali places children with families with the preferred order of first Malian nationals, foreign nationals residing in or who have resided in Mali, qualified foreign families without children and finally, foreign families who have already adopted a Malian child

Inheritance

"Mali has no specific law on succession. The only law on the books is the former French colonial law, which states at Article 6 that rules of inheritance should be governed by the customs of the married parties, with the customs relating to the deceased person taking precedence in cases of dispute. Generally it is Islamic law which is applied, which stipulates for example that a widow will inherit only 1/8 of her husband’s estate. The rest goes to the children, parents etc in keeping with a recognized formula under Islamic law. If there are four wives, this ratio is further divided among the wives. Male children inherit double that of female children. Customary law generally is discriminatory against women, particularly those in polygamous marriages. In some cases, for example, a wife is considered her husband’s property and therefore upon his death she will herself be inherited by a male relative of the deceased as an asset of her husband’s estate."

Children have no legal protected of rights under the Malian law and there really is no juvenile system, there is a juvenile court however, its actually influence/use is questionable. Juveniles are placed in the same prisons as adults but housed in separate cells.
Women do have citizenship rights, under the Malian Constitution everyone is equal under the law however this is not actual reality. Women are victims of violence and rape, however, rape and especially domestic violence are rarely reported because of Mali's lack of enforcing such laws even when cases are reported. Women do have the right to education although many drop out and women are suppose to equally agree to marriage however many forced marriages and underage marriages do occur.

Human Rights

According to Mali's Constitution, many rights are protected under the law.

• Article 1: The human dignity is sacred and inviolable.

Each individual has the right to life, liberty, and the security and integrity of his person.

• Article 2: All Malians are born and live free and equal in their rights and duties. Any discrimination

based on social origin, color, language, race, sex, religion, or political opinion is prohibited.

• Article 3: No one will be put to torture, nor to inhumane, cruel, degrading, or humiliating treatment.
• Each individual of the State who is found guilty of such acts, either on his own initiative, or

by another individual's command, will be punished at law.

Other rights in the Constitution include freedom of the press, freedom to assembly, freedom to have and express their own political and religious opinions, the right to be presumed innocent, and not to be held for more then 48 hours unless court ordered.

The fact of the matter is, Mali is corrupt, and these rights are not guaranteed. The Amnesty International conducted investigations in Mali around 1996-1997. What they found to be true was that there was torture and ill-treatment with complete impunity occurred in numerous police stations across the country. There are also arbitrary arrests and unfair trials. One example was the the trial of Mady Diallo and the six soldiers who had been held for about 2 years before the trail took place in March 1998. The defendants were sentences to 15-18 months in prison and the Amnesty International said, had the proper legal procedures been followed they would not have been able to convict these individuals. In addition, it looks as if this was a politically-motivated reaction which clearly shows the lack of an independent judicial system. They had been accused of "an attack against the lawful government of the Republic of Mali with the intention of overthrowing it by force, and aiding and abetting a threat to state security by means of donations, pledges and provision of resources" however, no real evidence was ever found. Other rights were also violated for example confessions were obtained by means of torture, and they had problems meeting with their families, lawyers, and doctors.

FGM: Female Genitalia Mutation
FGM is practiced on 92% of the female population in Mali. There are three forms of genital mutilation that that range from the partial removal to the entire removal of the exterior sexual organs. After the cutting has been complete the two sides of the vulva are then stitched, leaving a small vaginal opening for menstrual flow and urine. This practice is performed on girls from as early as a three month old infant to girls in their pre-teens. Not only does this deny women equality but the surgery can result lifelong health consequences. Some include psychological trauma, severe pains during urination, hemorrhaging after the process that result in anemia, shock, and death. In addition girls can become incontinent from the damages done to their urethra's which damages their future and chances of being married. The practice of FGM is religious and is suppose to prevent infidelity and help girls fully mature. Since, the earlier daughters mature, the earlier they can marry, mothers and elder family members favor this procedure so they can receive a dowry in order to help support the family. The majority of these girls do not want to undergo this procedure but are forced to and until FMG is abolished gender inequality will remain.