The Prosecutor v. Hissène Habré et al.

Court	Constitutional Court, Chad
Case number	002/PCC/SG/001
Decision title	Decision on the Unconstitutionality Raised by the Victims of Crimes and Political Repression on the Criminal Case opened against the agents of the DDS of Hissène Habré
Decision date	6 April 2001
Parties	Counsel for Civilian Parties
Categories	Crimes against humanity
Keywords	crimes against humanity, jurisdiction, Murder, torture
Links	Decision on Unconstitutionality (in French only)

Summary

Hissène Habré was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which, through its political police, the Bureau of Documentation and Security (Direction de la Documentation et de la Sécurité (DDS)), caused the deaths of tens of thousands of individuals. Habré as well as members of the DDS, and its specialised branch the Special Rapid Action Brigade (Brigade Spéciale d'Intervention Rapide (BSIR)) were named in complaints filed by victims of the regime before the Court of First Instance in N’Djaména.

The Court of First Instance held that it was incompetent to hear the case as an Ordinance of 27 February 1993 provided that a special criminal curt of justice shall have jurisdiction. The victims appealed to the Constitutional Court for a finding that the Ordinance was unconstitutional as it purported to create a second judicial order in violation of the Constitution. The Constitutional Court accepted the arguments of the victims considering that the ordinance in question was indeed unconstitutional and should be repealed. This decision was the last in proceedings against Habré in his native Chad until 2008 when he would be tried and convicted in absentia.

Procedural history

On 26 October and 15 November 2000, forty individual and two group complaints were filed with the registrar of the investigating judge by the victims of the former President of Chad, Hissène Habré against all the Directors, Heads of Service and members of the Bureau of Documentation and Security (Direction de la Documentation et de la Sècuritè (DDS)) and members of its subsidiary, the Special Rapid Action Brigade (Brigade Spéciale d'Intervention Rapide (BSIR)).

On 23 November 2000, the Court of First Instance of N’Djaména in the Republic of Chad rendered an ordinance to the effect that it was incompetent to hear the case in light of the existence of an ordinance of 27 February 1993 calling for the establishment of a special criminal court of justice to try Hissène Habré and members of his regime.

On 26 January 2001, the Indictments Chamber of the Court of Appeal of N’Djamèna (Chambre d’accusation de la Cour d’appel de N’Djaména) decided to transmit the demand of the Civilian Parties relating to the alleged unconstitutionality of the ordinance establishing the special criminal court to the Constitutional Court for judgment.

Related developments

On 25 January 2000, Chadian victims residing in Dakar, Senegal filed a complaint against Hissène Habré for crimes against humanity before the Senegalese courts.

On 4 July 2000, the Court of Appeal of Dakar declared itself incompetent to try the case as Senegalese law did not provide for crimes against humanity. This decision was upheld by Senegal’s highest court, the Cour de cassation, by a decision of 20 March 2001.

On 8 May 2003, other victims of Habré instituted proceedings against the latter before the Belgian courts in application of a law providing for universal jurisdiction in the country.

In September 2005, Belgium issued an arrest warrant for Habré and requested his extradition from Senegal. By a decision of 25 November 2005, the Court of Appeal of Dakar rejected the extradition request on the grounds that the former Head of State enjoyed immunity from prosecution.

On 15 August 2008, the criminal court in N’Djaména tried Habré in absentia and sentenced him to death for crimes against humanity.

In October 2008, Habré requested a declaration of the Court of Justice of the Economic Community of States of West Africa (ECOWAS) to the effect that Senegal had violated his human rights by disregarding fundamental legal principles. By a decision of 18 November 2010, the Court replied that Habré must be treated in accordance with international law and customs.

In February 2009, Belgium introduced proceedings against Senegal before the International Court of Justice requesting the Court to order the Senegalese authorities to maintain Habré under house arrest.

By a decision of 20 July 2012, the ICJ ordered Senegal to either prosecute or extradite Habré so that he may stand trial without further delay.

On 22 August 2012, Senegal and the African Union signed an agreement to establish the Extraordinary African Chambers in Senegal to prosecute, amongst others, Habré for crimes committed by his regime in Chad.

Habre (again) brought a suit at the ECOWAS Court seeking an order for the immediate suspension of all investigations and proceedings, alleging that the EAC were an illegitimate court and that his trial would be unfair. However, on 5 November 2013, the Court held that since the EAC was established pursuant to a treaty between Senegal and the AU, it had no jurisdiction to rule on the case. The case was dismissed, clearing the way for the trial to start.

Legally relevant facts

Hissène Habrè was the President of Chad from 1982 until 1990 and he imposed a brutal dictatorship in his country, characterised by a persistent violation of human rights. Its political police, the Bureau of Documentation and Security (DDS) is alleged to have caused the deaths of tens of thousands of individuals in the country.

Core legal questions

Is the Ordinance of 27 February 1993 contrary to the Constitution of the Republic of Chad because it purports to establish a separate judicial order?

Specific legal rules and provisions

Articles 147, 148 and 239 of the Constitution of the Republic of Chad.

Court's holding and analysis

Article 147 of the Constitution of the Republic of Chad provides that there shall be one sole judicial order. Article 148 further enumerates exhaustively the courts of the Republic, which are authorised to exercise judicial authority. Considering that Article 148 does not list the special criminal court of justice established by Ordinance of 27 February 1993, said Ordinance is contrary to the Constitution. The Court of First Instance of N’Djaména is competent to hear the case against the agents of the DDS and Hissène Habré.

Instruments cited

Constitution of the Republic of Chad, 31 March 1996.

Related cases

Court of First Instance of N’Djaména, The Prosecutor v. Hissène Habré, Case No. 04/PR/MJ/93, Ordinance of Non-Competence, 23 November 2000.
Court of Appeal of Dakar, Souleymane Guengueng and Others Against Hissène Habré, Case No. 135, Arrêt, 4 July 2000 (Summary in English, Decision in French).
Supreme Court of Senegal, Souleymane Guengueng and Others Against Hissène Habré, Case No. 183, Judgment, 20 March 2001;
Court of Appeal of Dakar, Opinion on the Extradition Request for Hissène Habré, Decision, 25 November 2005.
Court of Justice of the Economic Community of States of West Africa, Hissène Habré v. Republic of Senegal, Case No. ECW/CCJ/JUD/06/10, Judgment, 18 November 2010 (in French only).
Belgium v. Senegal, International Court of Justice, Judgment of 20 July 2012.