This section offers an historical contextualisation of how two incomplete trajectories of governance in Mali – from state to nation and from executive-dominated to representative government – prevent justice from being rendered on the basis of a shared identity and continue to enable use of the state judiciary for purposes other than providing an impartial public service to Mali’s citizens. It suggests that as long as this situation persists, a state judiciary that functions accessibly, fairly and transparently on a national scale will be difficult to realise. The section helps create an understanding of the current political boundaries of justice provision in Mali before subsequent sections analyse the strategic and operational difficulties entailed in any efforts to improve this provision.
On 17 January 2012, the National Movement for the Liberation of Azawad (MNLA) initiated the fourth Tuareg uprising since Mali’s independence in 1960 by attacking a military garrison in the north-eastern town of Menaka. The ensuing events and developments echoed long-standing tensions within and between Mali’s southern and northern population groups that have historically been marked by mutual distrust. Arguably, the more flexible boundaries and shifting governance arrangements of Mali’s pre-colonial past enabled greater accommodation of diverse sets of interests which, in turn, helped prevent such distrust from escalating into full-scale violence. However, decolonisation and independence saw Mali acquire fixed boundaries, with state power within those boundaries accruing to local elites that used to be part of, or closely associated with, the French colonial administration.
When these elites took charge of Mali after colonial rule was handed over to them, they, perhaps unsurprisingly, asserted centralised political authority over the entire country by projecting power in a way that economically and politically marginalised its northern areas (for example through the use of French as the language of administration). Added to the already significant geographical and climatic difficulties of governing and developing Mali’s vast hinterland, this approach gradually transformed the once prosperous north into a disadvantaged region while creating significant grievances in the process.
This led, predictably, to discontent, unrest and episodes of violence of which the four Tuareg uprisings are the most prominent. They have largely been interpreted by the elites that run the Malian state as existential challenges to their authority and suppressed as rebellions by military means. For example, the north was placed under martial law after the first Tuareg uprising (1963) and gradually militarised through the appointment of southern military personnel in key civilian and military positions. Such officials tended to behave as occupiers in a newly conquered country, adding the injury of defeat to the insult of humiliating elders, enforcing local marriages and behaving disdainfully towards local populations.
Divisions between northern communities were also opportunistically used by Bamako to prevent the Tuareg tribes from posing a real challenge, for example by arming Songhay militias such as the Ganda Koy or Ganda Iso. This approach further fragmented the already fragile social texture of northern populations which – contrary to what some may believe – feature a great variety of Tuareg, Arab, Songhay and Fulani groups with different cultures, languages and traditions, not to mention different political mythologies. Unsurprisingly, it also led to further violent clashes, enabling the Malian government to portray the issue as a security threat that required forceful pacification. The current international focus on narco-jihadism ironically replicates this approach, albeit for different reasons. The resulting accumulation of grievances and distrust made it more and more difficult to achieve sustainable peace, as the lengthy negotiations leading to the recently concluded Algiers peace process illustrate. Moreover, the implementation of the peace agreement is unlikely to proceed as fighting continues in spite of it, thus probably further strengthening the negative spiral of grievance and distrust.
It was only after the second Tuareg uprising from 1990 to 1996 that the Malian government changed its approach from military suppression to administrative neglect. While on paper the National Pact (concluded in 1992) sought to maintain Mali’s territorial integrity, provide the north with greater autonomy and reduce the level of violence, in practice it led to the wholesale retreat of what few state institutions existed in the north, including the judiciary. The resulting vacuum enabled a few more strands to be woven into the tapestry of grievance, marginalisation and conflict in the north in the decades between the second Tuareg uprising and the fourth (2012): those strands being the growing prominence of jihadi-terrorist groups on the regional scene, the development of criminal–terrorist alliances of convenience and the increasingly criminal role of the Malian shadow state as it continued its divide-and-rule politics beneath the surface of the National Pact.
The purpose of this examination of developments leading up to the 2012 crisis is to show that the event should be seen largely as one marker of many that starkly underlined the continued lack of congruence between the Malian state and the Malian nation. If a nation is defined as an ‘imagined political community’, the limit of Mali’s community runs somewhere close to the northern bend of the Niger river. Although the area naturally is a patchwork of (intermixed) ethnic groups, this imaginary line (see figure 1 below) serves to juxtapose Mali’s Bambara and Tuareg populations that dominate the political discourse within and about the country. The long and the short of it is that the Malian state has not been able to transcend the different concepts of identity delineated by this imaginary line through acting as arbiter of the different interests that compete for power in Mali’s polity and as a neutral provider of collective services.
Source: This map was re-produced from the site of l’association ‘Bani Kono’ (accessed 27 July 2015)
This unresolved matter of identity and the associated difficulties of governance is crucial to the provision of justice, since disputed identities makes it difficult to establish a concept of justice that is considered legitimate by all and a practice of justice in which its provision is experienced as the extension of impartial public authority instead of as an instrument through which state power is expressed. It is therefore no coincidence that the state has never been central to the provision of justice provision in the north. Despite vigorous onslaughts on their legality and functionality by both the colonial and Malian administrations, traditional chiefs and religious leaders dominate dispute resolution in these regions, including in criminal matters.
Nevertheless, the irrelevance, and to some extent the perceived illegitimacy, of the state justice system in Mali’s northern regions is not necessarily problematic from a day-to-day justice perspective in which most disputes are about family, land, commercial matters and small-scale crime. The regions of the north generally have well-established customary mechanisms to deal with such disputes in ways that focus on preventing further violence, stimulating reconciliation, and restoring the equilibrium between communities. These mechanisms tend to be regularly used and well regarded.
This situation, however, is highly problematic for any strategy that unilaterally seeks to rapidly extend the presence of the state justice system into the north, for example as part of the recently concluded peace agreement. The preceding analysis suggests that the basic questions of how Mali as an ‘imagined community’ should take shape, and of what governance arrangements are workable for its vast northern areas, given their legacy of violence, will need to be answered gradually and via trust-building approaches that consult citizens as much as possible. This will take years, if not decades. It also suggests – and this is further elaborated in section 2 below – that the most realistic short-term option for dealing with matters of quotidian justice is to support, stimulate and develop existing customary mechanisms where these continue to be locally accepted and legitimate. This would ideally be done in ways that ensure their compatibility as far as possible with a newly reconstituted state judiciary, for example via regular exposure of customary justice leaders to their customary and state peers via events and/or associations (see the conclusions for more detail).
In short, not only is state-provided justice largely absent from the north of Mali, it is also contentious, given the unresolved identity and governance issues. This points to the need to build on what already exists and is locally considered legitimate as an obvious way to improve justice mechanisms as part of a broader strategy for Mali’s recovery in the short term. In the long term, the possibility of a hybrid customary–state system needs to be explored for the provision of justice in northern Mali, or a state system that is built on customary as well as French traditions.
The other incomplete trajectory of governance that influences how justice is organised and provided is Mali’s stalled transition from executive-dominated government to representative governance. Representative governance here refers to mechanisms of rule in which the different interests competing for power and resources in Mali are adequately represented and transparently mediated, and in which functioning checks and balances exist for each of its composite elements. This obviously does not have to take the form of Montesquieu’s classic trias politica, but should be tailored to Mali’s particular circumstances. Inspirational examples of innovative, designed-to-fit-locally forms of representation include neighbouring Niger’s governance arrangements with its Tuareg population, or the role of traditional chieftains in the governance of Sierra Leone.
A brief reflection on the nature of government in Mali suffices to highlight the issues in question. Mali was governed by two successive autocratic regimes from its independence in 1960 to the proclamation of its first democratic constitution and presidential elections in 1992. One eight-year period of autocratic rule under President Modibo Keita was followed by a 23-year period of military rule under President Moussa Traoré, who came to power through Mali’s first coup in 1968. During these 31 years of autocratic rule, Mali’s formal justice system served as an instrument of state. To put it bluntly, it was designed for and tasked with achieving and defending the political objectives of the ruling party, especially the interests of its elites. On one occasion, President Keita unequivocally asserted that the judiciary was “at the service of the state”. The Marxist tendency to consider the party – his Union SoudanaiseRassemblement Démocratique Africain (US-RDA) – as the “nation’s engine and the only driving force of the state” clearly placed the judiciary under state control without even notional independence. His successor, President Traoré, went as far as constitutionally establishing Mali as a single-party state. Although this new constitution technically provided for an independent judiciary, in reality the way that legal affairs were conducted proved to be a continuation of business as usual.
Mali’s second coup in 1991, led by Amadou Toumani Touré (ATT), overthrew the country´s autocratic regime and marked the start of its democratic transition. The coup ended on a hopeful note with the introduction of a new constitution in January 1992 and the election of Alpha Oumar Konaré as the country’s president in April of the same year. This rapid transition to democracy won praise and support from numerous international observers who were quick to elevate Mali as a model for other African countries. On the face of it, there was much that looked positive. For example, Mali’s new constitution firmly established a pluralist liberal democracy as the basis for further development, suggesting a clean break from the more autocratic notions of governance that previous regimes had ascribed to. This shift in how Mali was governed also reverberated through the country’s state judiciary, at least on paper. The new 1992 constitution once more enshrined the separation of powers, for the first time formally elevating the judiciary to the level of the executive and legislative powers. New judicial institutions, such as a Constitutional Court, were also created.
However, two key factors have largely prevented these changes from making the transition from paper to reality. One factor, which extends well beyond the state judiciary, is that governance in Mali continues to be grounded in neo-patrimonial networks and patronage, and features limited political competition. In short, bureaucratic-legal changes such as the constitutional modifications mentioned above are in reality adjusted to fit the pre-existing configuration of power and interests. For example, it is well established that President ATT built large networks of support during his mandates as president through the nomination of representatives of rival political parties to official positions at different levels of his administration. The net effect of these appointments was not just that four of the six biggest Malian political parties refrained from presenting a candidate to stand against him when he came up for re-election in 2007, it also further entrenched “the politicization of the Malian administration, which created conditions conducive to all kind of abuses to the benefit of the ruling party”.
This situation is by no means atypical for fragile states. In such a context, executive control over the judiciary tends to be exercised through informal and material controls that have the effect of rendering formal legal safeguards of independence inoperative. For instance, in Mali the Ministry of Justice controls the budget of the judiciary and the careers of the state’s legal professionals (such as public prosecutors), and exercises strong influence over the careers of judges. Reportedly, the minister makes even members of the Supreme Court “tremble”. Another example is that the Higher Council of the Magistracy (CSM: Conseil Supérieur de la Magistrature – the institution in charge of appointing, promoting, rotating and sanctioning staff employed in the state judiciary, including judges) has generally failed to vigorously pursue corrupt or underperforming judges. Considering the neo-patrimonial context in which it operates, this should be no surprise, but it does hinder the effective and fair provision of justice as a public service. Likewise, the CSM is also criticised for the lack of transparency in its disciplining of judicial magistrates, as its decisions are not made public, and for the fact that only the Minister of Justice can bring proceedings against a judge. A final example of the informal influence that the executive has over the judiciary can be found by examining the course of the presidential elections of 1997, 2002 and 2007. Box 1 below outlines how, during these elections, serious doubts were cast on the impartiality of the Constitutional Court, which was created in 1992 and which is in charge of establishing the validity of elections.
Box 1 The role of the Constitutional Court in the presidential elections of 1997, 2002 and 2007
1997: In a tense climate of political competition, opposition parties requested the Constitutional Court to invalidate the first round of the legislative elections after severe irregularities in the voting process had emerged. The Constitutional Court concurred and an emboldened opposition subsequently requested a freeze of the whole electoral process (including the presidential elections), dissolution of the electoral committee for reasons of partiality, and better-balanced media access. The Court, however, allowed the elections to continue and this resulted in Alpha Oumar Konaré remaining president. Although the Court expressed partial agreement with the opposition’s demands, it did not intervene.
2002: The vote was characterised by numerous irregularities, such as the discovery of fake voting stations, irregular distribution of ballot papers and votes cast by non-registered voters. Despite their magnitude and cross-country character, the Constitutional Court did not invalidate the entire first round of the presidential elections, but only cancelled 541,019 votes. This gave ATT (the preferred candidate of the outgoing president) c. 29% of the vote; Soumaila Cissé (the candidate of the president’s own party) c. 21% and Ibrahim Boubacar Keita (IBK) (Mali’s current president) c. 20%. This triggered a run-off between ATT and Cissé that was won by ATT. The episode raised suspicions that the outgoing president exerted pressure on the Constitutional Court to make sure his favoured candidate was elected.
2007: The elections were again hotly contested and surrounded by allegations of fraud. Interestingly, the re-election of ATT with 70% of the vote was not legally contested despite a public declaration by the President of the Constitutional Court that: “many politicians, candidates from all orders and affiliations, have become permanently involved in widespread fraud”. Justifying its decision not to cancel the results, he argued that “when it comes to electoral litigation, we have time constraints and a deadline that we need to respect. The proofs [of fraud] that we are talking about, are not easy to bring forward in these conditions.”
Comparing these episodes suggests that the Court has become increasingly enmeshed in webs of political relations and interests that mean it is difficult for it to function effectively and impartially
This box is based on: Chauzal, G., ‘Les règles de l’exception : La régulation du politique au Mali et au Niger’, PhD dissertation, Sciences Po Bordeaux, June 2012; intervention by Laurent Bigot (former French diplomat), 16 June 2012, (accessed 5 March 2015); declaration by Salif Kanouté, President of the Constitutional Court, Bamako, 10 August 2007 – for an excerpt: See here (accessed 27 July 2015)
Another factor that has prevented effective implementation of the legal changes of 1992 that sought to create greater judicial independence is that the executive continues to have significant powers of appointment in relation to positions in the highest organs of the Malian judiciary, namely the Supreme Court, the Higher Council of the Magistracy and the Constitutional Court. As these powers are ex ante in nature, the executive is largely ensured of favourable legal proceedings and rulings if and when desired. This largely obviates the need for overt executive intervention during legal proceedings.
Specifically, the members of the Supreme Court are appointed by a decree of the Council of Ministers, which is presided over by the President. The president and vice-president of the Supreme Court are named directly by the President in conformity with the recommendation of the Higher Council of the Magistracy (CSM). However, the CSM is also easily controlled by the executive since its chair is the President and its vice-chair the Minister of Justice and eight more of its members are officials (effectively appointed by the executive), while the Minister of Justice, as noted before, exercises significant influence over the 13 judges who make up the remainder of its 23-strong membership. While the composition of the CSM is not exceptional compared with other francophone countries (including France itself), in a neo-patrimonial context it means that nominations of judges, designation of their posts and disciplinary procedures will typically be undertaken on the basis not of (de)merit, but of loyalty and personal relations. Finally, of the nine members who make up the Constitutional Court, the President chooses three directly while the CSM – informally controlled by the executive – chooses another three. As noted, the Constitutional Court happens to be in charge of supervising elections. This arrangement provides the executive with more or less direct control over the CSM and indirect control over both the Supreme and the Constitutional Courts.
In short, dominance of the executive over the judiciary has persisted since 1992, although in more insidious ways than during Mali’s preceding periods of autocratic rule. It is mostly through the Ministry of Justice and the Higher Council of the Magistracy that executive control and influence can be exercised. The dual effect of such executive dominance is that it greatly reduces the credibility and impartiality of the state judiciary, as well as its ability to address its own internal problems.
Stepping back in time, one can observe that Mali has been ruled by autocratic regimes during 31 out of the 55 years in which it has existed as an independent state (c. 60% of the time). There have been four uprisings, and power has changed hands eight times at the presidential level, three times via coups and five times via elections. Of these elections, at least three were characterised by serious irregularities and the last one was conducted in crisis mode. It therefore seems reasonable to suggest that, despite Mali’s turn to democracy 23 years ago, it has not yet been possible to create a stable mechanism for the transfer of power at the pinnacle of the Malian polity that is peaceful, fair and transparent. The playing field for political competition remains uneven. Any effort to address this issue is hindered by the low permeability of Mali’s political elites. At the top, it is largely the same individuals and coalitions that have ‘competed’ for power since 1992, especially if the presidential elections are taken as the yardstick to go by. However, the continued existence of widespread discontent across the country, and violence in the north, suggests that these elites have not managed to govern Mali in a way that is considered equitable, just and effective.
In such an executive-dominated context it is difficult to conceive of, and provide, justice as an independent public service that can neutrally and effectively arbitrate in disputes between citizens, between citizens and the state or even between parts of the state itself. At present, the legacy effects of the subordination of Mali’s state judiciary to the country’s executive either linger or continue to be nurtured. Whichever the case, it is not just greater independence of the judiciary that is required to realise better justice, the prerogatives and practices of the executive must also be re-examined and, where appropriate, better balanced with those of other institutions of state. Deeper reflection on ways to foster genuine political competition and opposition might be one way to achieve this; greater support for free and independent media that can act as counterweight another.
In sum, the preceding analysis suggests that Mali does not have in place the unity of identity that is essential to generate a shared and legitimate concept of justice, and nor has it achieved the balance in governance that is required for the provision of justice as a neutral public service. With this finding in mind, the next section discusses structural constraints on, and popular expectations of, Mali’s state and customary justice systems, with the aim of producing an historically grounded overview of the ‘state of justice’ in Mali.