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The Senegalese Democratic Party (Pds), the last political party in power, has as candidate for the presidential election of 24 February 2019 Mr. Karim Wade. Its activists are on the ground to glean the maximum of sponsorships to meet the new constitutional and legal requirements of Senegal. But, legal sand is in the political machine since this candidate for the candidacy is struck by a criminal sentence of 6 six years of imprisonment and a fine 138 billion F CFA of the Court of repression of the illicit enrichment (Crei). Graced by presidential decree, the payment of the sum due is still payable to the Treasury. However, a few days ago, the supporters of Mr. Karim Wade, following a report issued by the Human Rights Committee of the UN on October 22, 2018 and notified to the State of Senegal, demand the annulment of the judgment of Crei and the reopening of the trial on the basis of the recommendations of the UN body.
"When everything amalgamates and merges, we reach the confines of the abyss," they say. From the beginning of this stalking of ill-gotten property, many have missed the mark of semantics by confusing illicit enrichment, embezzlement of public funds and theft. This also led to the description of Crei as being of a nature that is not its own, and which ultimately misused the UN Committee.
First of all, misappropriation of public funds and theft are matters of law. Their legal regime requires that the burden of proof undoubtedly rests with the accuser, the victim and not the alleged perpetrator. Illicit enrichment, instead of being a fact of law, is a legal situation. It is the law that institutes the Crei that affirms it. Contrary to the allegations of the UN experts claiming that the Crei was created to try Mr. Karim Wade in 2012, it was the law 81-54 of July 10, 1981, under the regime of Abdou Diouf, which gave birth to him. . But it is the law 81-53 of July 10, 1981 on Crei, in its article 3, which refers to article 163 bis of the Penal Code, which defines what the illicit enrichment is. For the latter, "the offense of unlawful enrichment is constituted when, upon simple notice, one of the persons named above – holder of an elected office or of a government function, … – is unable to do so. to justify the lawful origin of the resources which allow him to be in possession of a patrimony or to carry out a way of life unrelated to his legal incomes ". Therefore, as a legal situation (the impossibility of proving the lawful origin of one's patrimony and / or lifestyle), illicit enrichment may be occasioned by acts of law which are embezzlement, money laundering, bribery or theft, all characteristics of economic offenses. These facts may be grounds for illicit enrichment but they are not constitutive elements. That is why it is up to the alleged perpetrator to prove his innocence and not guilty, and not to the accuser.
And far from being a special jurisdiction, the foregoing shows that Crei is a specialized jurisdiction to judge only one type of offense and not a category of alleged perpetrators as would the special courts, as juvenile courts or courts martial.
All these terminological gray areas, unenlightened at the UN Committee before making their report, have abused supporters of Karim Wade. What is more, the only possible remedy after the verdict of Crei is the appeal in cassation as provided by Article 17 of Law 81-54 which says: "The judgments of the court are subject to appeal cassation Beyond that, they are struck by the authority of res judicata and remain definitive. Thus, they will no longer be subject to any national or international recourse.
Thus, to invoke the revision, or even the resumption of a case already judged definitively and legally struck by the authority of the force judged is inoperative especially as the UN body has no competence to influence a national jurisprudence and n There is no jurisdiction, let alone a supranational judge.
In turn, its decisions have no legal value and binding force. In the end, in law, the UN Human Rights Committee does not have a power of annulment and did not overturn the decision of the Crei condemning Mr. Karim Wade on March 23, 2015. The committee simply did not commit a manifest error of assessment, which is a process of review in administrative law, but an obvious error of appreciation of Senegal's judicial organization and criminal law.
The pardon granted to Mr. Karim Wade by the President of the Republic falls within the constitutional prerogatives of the latter. However, she was cautious and limited to the term of imprisonment. Like any Senegalese, he is free to use and abuse his constitutional right to travel in order to participate in an election. But, the fine of 138 billion FCFA to pay to the Treasury is still due. The result that will be reserved for him upon his return is the exclusive jurisdiction of the justice – whether by force or not and Parliament for a possible amnesty. Any other authority wishing to go too far merely expresses a wish. The amnesty is established only by a law passed by the National Assembly, which can certainly have a government origin by a bill or parliamentary by a bill. For coercion, only the judge of freedom is entitled to worry or leave anyone especially when one is in a state of law as wants to remain Senegal.
"Predicting the future is deceptive or deceived" had already warned our Bantu ancestors.
Mouhamadou Mounirou SY
Master of Public Law Lectures
University of Thiès
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