Togo: A Memorandum written by Barrister LAWSON Latevi George

NOTE

The Constitutional Court of the Republic of Togo rendered on 22nd November 2010 a decision which is legally strange in many respects.

It has been established that on 30th August 2007 during the swearing in ceremony of their party, the candidates of the Union des Forces de Changement (UFC) registered on the electoral list signed three documents:

– A first document entitled: “Contract of Trust of UFC” Membership Pact to UFC Values”

This document provides the general conditions of candidature.

– A second document entitled: “Contract of Trust Membership Pact with UFC Values Commitment of the Candidate”.

– The third document is a model of Resignation Letter typed without any name or date, addressed to the Speaker of the National Assembly and bearing the reference of Member of the National Assembly.

These signed documents were collected by the National Chairman Mr. Gilchrist OLYMPIO and then, the candidates officially took an oath in the presence of the National Bureau.

Twenty-seven (27) of these candidates were elected in October 2007 to the National Assembly of the Republic of Togo.

In October 2010, an internal political crisis within the Union des Forces de Changement (UFC) led to a split.

The Leaders and militants resigned from the Union des Forces de Changement (UFC) and created their own party, the ALLIANCE NATIONALE POUR LE CHANGEMENT (ANC) which twenty (20) out of the twenty-seven (27) Members of the National Assembly joined.

The new Bureau of the Union des Forces de Changement (UFC) forwarded the letters of resignation to the Speaker of the National Assembly who, despite the protests and objections of the twenty (20) Members of the National Assembly who are now members of the ANC and who felt they were concerned, informed the Constitutional Court of these resignations.

The Constitutional Court by Decision N°E-018/10 dated 22nd November 2010, noted the vacancy of the seats of the Members of the National Assembly whose resignation letters it has received and authorizes the occupation of the said seats declared vacant by the substitutes, the list of whom it has provided.

The above mentioned decision is questionable from every point of view.

I – Procedure applied at the National Assembly

The provisions of article 6 of the Bye-Laws of the National Assembly related to the resignation of a Member of the National Assembly stipulate:
“That any Member of the National Assembly regularly elected may resign from his functions.
The resignations shall be addressed to the Speaker of the Assembly who shall inform the National Assembly during the next nearest session and shall also inform the Constitutional Court”

The resignation is, in constitutional law, a decision by which a person relinquishes his mandate.
It is a unilateral decision which, to become effective and commit its author, must bear his name, the date the resignation takes effect and the signature of the author.

It is obvious that the resignations that we are talking about were not addressed to the Speaker of the National Assembly by the Members of the National Assembly who signed these resignation letters. This is the more reason why the Speaker of the National Assembly is obliged to inform all the Members of the National Assembly of the resignations.

It is equally obvious that, in order to officially inform the Members of the National Assembly, the Speaker must give to the National Assembly during a plenary session, the names of the resigning Members of the National Assembly, the content of the letters of resignation and finally the date on which the resignations take effect.

During the plenary session of 18th November 2010, the Speaker announced nine (9) resignations; he refused to give the names but mentioned that the signed letters of resignation did not carry any date.

It is finally obvious that article 6 of the Bye-Laws compels the Speaker of the National Assembly to inform the Constitutional Court of the body of the letters of resignation.

Indeed, the notification provided for in article 6 of the Bye-Laws of the National Assembly is the formality through which the Constitutional Court is informed of the resignations.

It allows the Court, in conformity with the Constitutional Law, to be informed of the names of the Members of the National Assembly who are resigning, to take cognisance of the written content of their decision, to know the date their decision is taking effect and finally to note that it is a signed decision.

The conclusion of what has been said so far is that the obligation to inform the National Assembly provided for in Article 6 of the Bye-Laws was not complied with by the Speaker of the National Assembly and it is in vain that he mentions both in the Minutes of the plenary session of 18th November 2010 addressed to the Constitutional Court and in the communiqué of the Bureau of the National Assembly of 19th November the incident that occurred during the previous plenary session to exempt himself from the obligation to inform the National Assembly provided for in article 6 mentioned above.

In addition to what has been said, one must add the protest letters addressed after the plenary session of 18th November 2010 the very day, by the Members of the National Assembly who felt abusively concerned by the announcement in plenary of the existence of nine (9) resignations, among whom the Members of the National Assembly whose names are included in the decision N° E-018/10 made on 22nd November 2010 by the Constitutional court.

Besides, a chronological analysis of the dates of the letters specified by the decision N°E-018/10 of 22nd November 2010 is quite edifying.

Indeed, first of all, there is the letter dated 11th November 2010, from the Speaker of the National Assembly forwarding resignations to the Constitutional Court in violation of the provisions of article 6 of Bye-Laws which compels the Speaker to inform the National Assembly before any resignation letter is forwarded to the Constitutional Court.

Then the letter dated 17th November 2010, addressed by the President of the Constitutional Court to the Speaker of the National Assembly.

There is the plenary session of 18th November 2010 during which, the information about the Members of the National Assembly gathered in plenary just looked like a rather disappointing regularisation, testified by the Minutes of the plenary session of 18th November sent by the Speaker of the National Assembly to the Constitutional Court.

The legal irregularities identified in the procedure used by the Speaker of the National Assembly are in violation of the provisions of article 6 of the Bye-Laws. They are obvious in the decisions forwarded by the Speaker of the National Assembly. A simple reading of the resignation decisions and of the Minutes of the plenary session of 18th November 2010 would have helped the Constitutional Court to identify these irregularities which seriously affect the resignation procedure applied by the Speaker of the National Assembly.

II – Procedure before the Constitutional Court

1) – The procedure before the Constitutional Court is set by articles 31, 32 and 33 of the Bye-Laws of the Court.

Article 33 provides notably that: “Right after receiving a request, the President of the Court shall appoint by order a rapporteur among the Judges of the Court.

The rapporteur shall proceed to deal with the case and shall submit a written report to the Court within the deadline established by the said order.

The report and the draft decision shall be prepared at least in ten (10) copies and presented to the President of the Court. After submitting the report, the Court shall meet in assembly and shall deliberate behind closed doors.

No one shall request to be heard during the debates of the Court.

Article 33 of the Bye-Laws of the Constitutional Court does not make any difference in the requests. This clear provision subjects all requests to the same rule. Any request no matter the purpose shall call for the appointment of a Judge Rapporteur. The first decision of the President of the Court, right after the reception of the request is the appointment by order of a Judge Rapporteur.

The Decision of the Court, when a Judge Rapporteur is appointed, shall make reference to the report presented at the Court after analysis of the various elements of the case. (cf: Decision NoE-004 of 2nd May 2005, Decision NoC-003/09 of 9th July 2009.)

The simple reading of the references of the Decision N°E-018/10 of 22nd November 2010, indicated that that no Rapporteur has been appointed by order of the President of the Court and no report was presented to the Court after analysis of the case.

This is the sign that the Court did not comply with the provisions of article 33 of its Bye-Laws.

The above observation presents an unquestionable legal importance for four reasons:

Indeed, the Members of the National Assembly who felt concerned by the announcement in plenary session of the existence of resignation without mentioning of the names have each written a protest letter to the Speaker of the National Assembly. Copies of these letters were forwarded for information and for all intents and purposes to the Constitutional Court.

The minutes of the plenary of 18th November 2010, addressed to the Court by the President of the National Assembly after the session, also mentioned an incident created by the mentioning of the name of a Member of National Assembly who vehemently objected having ever forwarded a letter of resignation or asked for the forwarding of the said letter to the Speaker of the National Assembly.

There is also the very content of these minutes which clearly recognise the non compliance with the provisions of article 6 of the Bye-Laws of the National Assembly since the minutes state that the session was adjourned after the incident.

There is lastly the absence of the date on the letters of resignation.

A Reporting Judge who is regularly appointed, in compliance with article 33 of the Bye-Laws of the Court, would certainly identify these irregularities and his report would have clarified the decision of the Court.

The violation of the provisions of article 33 affects the legal quality of the Decision NoE-018/10 of 22nd November 2010.

2) – The submission of a case to the court is the formality whereby a justifiable refers to a jurisdiction to settle a dispute or to notify a situation that creates legal effects. Generally speaking, it is a request, no matter it form.

The Constitutional Court which recognizes having received the letters dated 11th and 18th November 2010, addressed to it by the Speaker of the National Assembly sets in the Decision of No.E-018/10 of 22nd November 2010 the date of its referral to 18th November 2010.

A simple reconciliation of these letters of 11th and 18th November 2010 shows that the first request is the one contained in the letter dated 11th November 2010.

Indeed, the Speaker of the National Assembly who declared in this first letter that he had forwarded the resignations received, formulated in the following way his request which legally informs the Court:

“To this effect I forward to you the related documents for competence in order to rule on the case”

The referral to the Constitutional Court is not legally questionable.

The same request repeated in the letter of 18th November 2010 in the same terms besides could no longer inform the Court once again:

“I forward to you the documents for competence in order to rule on the case”.

Why did the Court prefer to refer, in violation of article 31 of its Bye-Laws, the repeated request in the letter of 18th November 2010, whereas unquestionably the latter is superfluous, therefore irregular.

Simply because the request contained in the letter of 11th November violates the rule of article 6 of the Bye-Laws of the National Assembly which stipulates that before any referral to the Constitutional court, the National Assembly must first be informed.

All these legal experts of the moment who assisted the Speaker of the National Assembly lacked the necessary intelligence to advice the Speaker to withdraw his first request before any debate on the substance and to present a new request which contains at least the approximate and in any case, the incomplete and legally questionable compliance with the regularisation contained in the letter dated 10th November 2010, which shall therefore become the sole request.

Maybe, the legal experts of the moment do not know that the referral to a jurisdiction is neither irretrievable nor final.

Such is the judicial law. The mistake is definitely committed by this Court which refers without hesitation in its Decision N°E-018/10 of 22nd November 2010 to two requests regularly received and registered: the first referral receivable but not justifiable on which the Court is silent, the second which is irregular because, a jurisdiction cannot be referred to twice by the same claimant of the same request which genuineness is all the same questionable, and on which it has taken a decision.

I do not want to make a value judgment. The legal mistake made by Decision of the Court is sufficiently eloquent.

3) – With regard to the resignation decision: let us recall that a legally valid resignation, when the law requires that it must be written must include the full names of the person who is resigning, the clear expression of the decision to resign with the mention of the function from which one is resigning. It must be signed by the person who is resigning and indicate the date the resignation shall take effect. The date shall in compliance with an old law principle be determined or determinable.

This is how a person can legitimately resign for example with effect from the date of the reception of the resignation letter whiles the decision itself does not bear any date.

The Constitutional Law, the very one which must serve as the basis for the decisions of the Constitutional Court declares that a resignation without any indication of the date constitutes a blank resignation. It is presented in the form of a letter signed which does not indicate any date and which is handed over as a guarantee of a commitment. The Constitutional Law declares this practice contrary to the principle of prohibition of an imperative mandate rightly stipulated in article 52 of the Constitution of the Republic of Togo.

It is in vain that the Court will mention the procedure of notification of article 6 of the Bye-Laws of the National Assembly.

The legal problem which is raised is very simple.

Can the Constitutional Court legitimately receive a notification of a decision which the Constitutional Law declares irremediably contrary to the principle of prohibition of the imperative mandate in article 52 of the Constitution?

Article 104 of the Constitution of the Republic of Togo devoted to the competence of the Constitutional Court declares:

“The Constitutional Court is the jurisdiction responsible for ensuring compliance with the provisions of the Constitution”.

This is an issue of daily ‘’responsibility’’.

The Constitutional Court, high jurisdiction to which the Constitution give an exclusive and clear competence shall not receive a decision declared contrary to a provision of the Constitution. It may all the same recognise, through a judicial decision, legal effects attached to such a decision.

Some people declared in legal ramblings that the Decision N°E-018/10 of 22nd November 2010 may be justified by the rule “Nemo Auditeur Propriam Turpitudinam Allegans” No one can allege his own mistake in terms of immoral contracts”.

It is just a matter of indicating that the problem of resignations are raised in terms of constitutional law before the Constitutional Court and not before the Civil Jurisdictions before which, in this case, this rule cannot by applied.

4) – The last violation identified in the Decision N°E-018/10 of 22nd November 2010 concerns the rule which organises the deliberations of the jurisdictions.

This rule provides in a strict manner that the composition of the judges who deliberates must be the same who renders the decision.

This rule was repeated in article 25 of the Bye-Laws which requires the mentioning of the names of all the Judges who participated in the deliberation and signing of the decision.

Article 25: The decisions of the Court include the references, the motives and the setting.

They include the names of the Judges who signed and their signature.

There is no doubt, and this is known to the public that the nine (9) Judges of the Constitutional court deliberated together. Even the media made mention of this fact.

The decision made public by the Constitutional Court makes mentioned only eight (8) Judges who have deliberated.

What legal value must one give to the decision published by the Constitutional Court?

III – Problem of deviation of the Constitutional Courts

Finally the Decision N°E-018/10 of 22nd November 2010 which seems to be enforced despite all the irregularities and lapsed identified, poses in reality a fundamental problem.

We do know that: when the officiating priest declares, no matter the quality and value of the bread and wine, that this is my body and this is my blood, the mystery of the Sacrament is accomplished immediately and irremediably for the Christian; but then, we are in the area of faith, in the relationship between the Christian and God.

The legal truth expressed by the Decision of the Constitutional Court would only benefit from the same power, for, we are in the area of Reason, this faculty which enables the citizen to know and appreciate a fact, a decision and a legal reasoning, to judge them in accordance with the legal principles and regulations.

The Decisions of the Constitutional Court cannot only be imposed “erga omnes” if they comply with the provisions of the fundamental law, the general principles of the law, the legal rules in force and of course the international conventions and protocols ratified by the Republic of Togo; the legal order which constitutes in our country the “Written Reason”.

This is therefore how we legally and totally disarticulate and break down the Decision N°E-018/10 of 22nd November 2010 of the Constitutional Court which proposes to exclude from the National Assembly, nine, not less, elected officers of the Nation.

Against such decisions, Mirabeau stated that “Justice is a need of all and on every occasion, as it has to impose respect, it must inspire trust”.

It is impressive to note the fundamental place and role that constitutions generally ask the Constitutional Courts to play in the society.

The Constitution of the Republic of Togo attributes a significant responsibility to the Constitutional Court.

It shall check the constitutionality of the laws which regulate the life of the citizens; it shall protect the members of the national society by guaranteeing the respect of the fundamental rights of the human being. It shall see to the respect of public liberties. It shall intervene for a harmonious functioning of the institutions of the Republic and for the regular execution of the activity of public authorities. It shall finally rule on the regularity of elections by protecting the right of the voters to freely chose their leaders.

The Constitutional Court is therefore the highest and most important jurisdiction of the State.

With such a power of control and intervention, it must constitute the basis of a peaceful national life, the cement of democracy, the last shield against all the abuses of public authorities.

Indeed the first and fundamental role of the Constitutional Court is therefore to ensure the effectiveness and the free exercise of all the rights guaranteed and protected by the Constitution. It has in reality and finally the mission of promoting the rule of law.

The non compliance with the procedures, the lack of relevance of the legal reasoning which led to its decisions, the interpretation very often erroneous of the general principles of law, the constitutional and legislative provisions, the will of the Constitutional Judges to ignore some obvious elements of the cases submitted to their examination finally and in reality lead to a denial of justice totally contrary to its mission, that of promoting the rule of law.

The voluntarily partisan nature of the decisions of the Constitutional Court denounced here and there, the loss of trust from the people who often think that the decisions that the high jurisdictions are trying to apply are contrary to the law, the serious legal irregularities and the obviously wrong interpretations of the laws compel people in Africa to think about the genuineness of the lack of recourse that the constitutions attach to the decisions of the high jurisdictions in constitutional terms.

A first possibility may be the recognition of the need to set up a legal mechanism of correction.

A real review procedure could allow the Court to examine the strongly legally justified grievances often set against its Decisions.

The existence of such a procedure will undoubtedly avoid the great fickleness with which the decisions of the Constitutional Courts are taken and motivated.

I am still sure, maybe because I was one of them; that no mission is either healthier or more difficult than that of the Judge. Mixed with all kinds of passion, attracted by the human weaknesses, the Judge must make sure that he is above all of them. Devoted to obscure and difficult works, the Judge must find the reward of his efforts not in the noise of the fame but in the calm satisfactions of his conscience.

He must bear in mind that he constitutes the dishonour and the scourge of our societies if he forgets the nobility of his mission and manages to abuse the immense authority that our societies entrust to him.

Lord SEGUIER Antoine Mathieu, Magistrate, dealing with the case of Marshal Ney, sued for treason, said the “Court gives judgement and does not render services”.

What a beautiful, high and just idea of the mission of the Judge, Honourable members of the Constitutional Court:

A Memorandum written from his ejection seat “ad nutum” by
Barrister LAWSON-LANCELOT Latevi Calvin George
ANC Member of National Assembly
Chairman of the External Relations and Cooperation Committee
Lawyer
Former Attorney General
At the Court of Appeal
And the Supreme Court of Togo