What legal and institutional frameworks are in place for the protection of participants in terrorist trials? The examples of Burkina Faso, Niger and Senegal

The Sahel is plagued by unprecedented transnational organised crime and an upsurge in terrorist organisations.  Indeed, more than a decade after the attacks of 11 September 2001, the terrorist threat has never been more severe.

In discussing the present topic — the legal and institutional frameworks for the protection of victims and witnesses in terrorism investigations — the examples of Burkina Faso, Niger and Senegal are instructive.

From a legal perspective, the fight against terrorism has required amendment and adaptation of domestic legislation in these three States.  Accordingly, Burkina Faso, Niger and Senegal amended their penal codes. The counter-terrorism measures introduced in these codes require changes to the criminal procedure to improve the effectiveness of these legal measures more. Consequently, it was necessary to define new rules derogating from the ordinary law of criminal procedure.

At the institutional level, crimes of terrorism have made it necessary to adapt the governmental structures which were intended to address the problem. Indeed, an institutional response is required to combat this phenomenon, which the traditional rules of criminal law have not effectively and comprehensively managed. The complexity and specificity of the offences concerned, namely acts of terrorism and transnational organised crime (TOC), require that they be dealt with by specialised judges, prosecutors and law enforcement agencies. Further, for reasons of efficiency, prosecutions must be centralised to avoid duplication of efforts and resources.  The unique combination of these conditions prompted the establishment of the specialized courts, prosecutors and investigators in the fight against terrorism in these countries.

Despite their importance, these legal and institutional reforms have left theorists and legal practitioners, and particularly those involved in the fight against terrorism in these countries, indifferent.  This suggests a lack of attention to the issue(s)/dilemma.

This article aims to strengthen the protection of victims and witnesses in terrorism cases in the Sahel while respecting human rights. Indeed, in several ways, respect for human rights is at the heart of the debate in the fight against terrorism.  Some actors in government perceive respect for human rights as a threat to the effectiveness of counter-terrorism measures, while others view it as essential to the effectiveness of these measures.  The relevance of this debate, which reflects gaps on both institutional and legal levels, was noted regarding the protection of witnesses and victims who provide information about individuals and organizations involved in terrorism.

This article analyses the legal and institutional framework for the protection of those involved in terrorist cases in the Sahel, particularly in Burkina Faso, Niger and Senegal. It is hoped that this article may enhance the effectiveness of victim and witness protection measures in those Sahel countries by identifying gaps and implementing the proposed recommendations. It is suggested that these States explore the idea of setting up a state fund to ensure the availability of resources to support these victims and witnesses.   

Furthermore, this analysis will attempt to dispel the notion that respect for human rights is an obstacle to the effectiveness of counter-terrorism measures in the Sahel.  Rather, respect for human rights and the rule of law are the key elements of effective counter-terrorism measures and are tools to be used to implement criminal justice measures.  

Indeed, investigating and adjudicating terrorism cases while respecting the principles and guarantees of the rule of law has, more than ever, become a challenge for the judiciary and democratic societies. This article attempts to address this tension by adopting an interdisciplinary perspective.

Aimed at both legal practitioners and academics, it is hoped that this first article will provide solutions to the main questions raised by the criminal justice dimension of the fight against terrorism in the Sahel.

Download the full article here.

This article was written by IIJ Alumni:

Mamane Lawal Barry MAMADOU, Director of the Protection of Rights and Sanctions at the High Authority for the Protection of Personal Data (HAPDP), Niamey (NIGER)

Tondjoa SAGNAN, Prosecutor at the Tribunal of Ziniare (BURKINA FASO)

Djibril Abdou MOUSSA, President of the Tribunal of Instance of Kollo and former Examining Judge at the High Court of Agadez (NIGER)

Paul DAMIBA, Counsellor at the Administrative Court of Appeal of Ouagadougou and former President / Examining Judge, High Court of Djibo (BURKINA FASO)

Doudou Cissé DIOUF, Deputy General at the Court of Appeal of Dakar and former Prosecutor, Court of Dakar (SENEGAL)

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