VZCZCXRO1617
PP RUEHMA RUEHPA
DE RUEHDK #0448/01 1090958
ZNR UUUUU ZZH
P 180958Z APR 08
FM AMEMBASSY DAKAR
TO RUEHC/SECSTATE WASHDC PRIORITY 0339
INFO RUEHZK/ECOWAS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 DAKAR 000448 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
DEPT FOR AF/W, AF/RSA, DRL AND INR/AA 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PINS KDEM SG
SUBJECT: SENEGAL AMENDS ITS CONSTITUTION TO PROSECUTE HABRE 
 
¶1.  (SBU) Summary:  On April 8, the Senegalese National Assembly 
amended article 9 of Senegal's Constitution to enable local courts 
to prosecute former Chadian President Hissene Habre.  The debate was 
passionate and took three-and-a-half hours.  The overwhelming 
majority of President Abdoulaye Wad's party, more than eighty 
members, voted in favor of the law arguing that Africa has grown and 
must not let Europe prosecute its leaders.  Eight members including 
two senior members from the president's camp rebelled and voted 
against the law on the ground that allowing international criminal 
law to be retroactive in Senegal sets a dangerous precedent.  END 
SUMMARY. 
 
GOS's rationale for the Law 
--------------------------- 
 
¶2.  (SBU) The Minister of Justice defending the bill noted that the 
amendment adds a new paragraph to article 9 of the Constitution 
which used to read "No one shall be condemned for an act which did 
not constitute a criminal offence at the time it was committed." 
The amendment adds "However, the provision of the preceding 
paragraph, shall not prejudice the trial, judgment, and condemnation 
of any person for any act or omission which, at the time it was 
committed was criminal according to international law, especially 
acts of genocide, crimes against humanity and war crimes." 
 
Fulfilling International Commitments 
------------------------------------ 
 
¶3.  (SBU) In fact, this amendment is a modified version of Article 
15 of the UN Covenant on Civil and Political Rights of 1948. 
Believing that idea of a "general principles of law recognized by 
the Community of nations" was too broad for Senegal, experts at the 
Ministry of Justice changed the language to "international law" and 
defined more narrowly the crimes under the scope of the amendment 
limiting them to genocide, crimes against humanity, and war crimes. 
Prior to this amendment, Senegalese judges used article 9 of the 
Constitution to rule that Senegal could not prosecute Habre and 
lacked criminal procedures to that effect.  This, as recognized by 
the GOS, violated article 27 of the 1969 Vienna Convention on the 
Law of Treaties which forbids a state party to invoke provisions of 
its internal laws "as justification for its failure to perform a 
treaty." 
 
Africa Must Prove its Legal Maturity 
------------------------------------ 
 
¶4.  (SBU) During the heated debate, some deputies questioned who or 
which state could legitimately prosecute former African dictators 
accused of genocide or crimes against humanity.  There was a 
unanimous view, echoed by the Minister of Justice, that the 
"toubabs" (white Europeans) did not have such legitimacy because 
many of their colonial crimes remain unpunished and they all 
congratulated President Wade for having refused to extradite Habre 
to Belgium.  The Deputies opined that Western powers only respected 
international law when it conforms to their interests.  However, 
leading members of the Assembly cautioned that international law 
should not be confused with international relations and Africa 
should not condone the behavior of its dictators.  The leader of the 
majority noted that this was an opportunity to prove that Africa has 
competent judges and that its criminals could be prosecuted 
according to international standards. 
 
Too Many Amendments 
------------------- 
 
¶5.  (SBU) Some members complained that the government was 
trivializing the Constitution with constant amendments.  They 
deplored that the amendment they were examining was undertaken under 
pressure from Western NGOs such as Human Rights Watch.  Deputy 
Elhadj Diouf, one of Habre's many attorneys, noted that Senegal was 
the only country on Earth to place in its Constitution a provision 
allowing international criminal law to be retroactive.  Though he 
belongs to Wade's party, Diouf did not hesitate to claim that the 
amendment in question was being forced upon Senegal and added that 
the true criminal is not Habre but the current Chadian President 
Idriss Deby who, as the former head of Secret Services, carried out 
the executions that Habre is alleged to have ordered.  He noted that 
Habre faced many accusations with little supporting evidence. 
 
Comment 
------- 
 
¶6. (SBU) While it is true that the National Assembly typically 
rubberstamps the government's draft laws, this case proved to be so 
controversial that a first draft was withdrawn at the committee 
level.  The deputies who first rejected the idea of having 
international criminal law be retroactive in Senegal compromised 
with the Executive branch agreeing to strictly limit any amendment 
to genocide, crimes against humanity, and war crimes.  With this 
amendment in place, the final legal obstacle to try Habre has been 
 
DAKAR 00000448  002 OF 002 
 
 
removed.  However, given the former dictator's network of supporters 
in political and religious circles, it remains to be seen if the 
case will not be purposefully dragged out to prolong the two decades 
of immunity he has enjoyed in Senegal. 
SMITH