COURT ORDERS REPUBLIC OF SENEGAL TO PAY 30 MILLION TO DIVORCEE FOR RIGHTS VIOLATION

The ECOWAS Court of Justice today ordered the Republic of Senegal to pay thirty million (30,000,000) CFA francs as compensation to a Senegalese divorcee for the violation of her human rights over the execution of a court judgment for the liquidation of properties she owned with her former spouse.

Delivering judgment in the case filed by Ms Ndoye Awa, Justice Gberi-be Ouattara, held that the compensation was for damages suffered by the applicant during the liquidation of properties she shared in common with her ex-husband after the Court found her claim for compensation as well founded but exorbitant.

Justice Ouattara, the Judge Rapporteur in the suit delivered the decision in which the Court held that the Republic of Senegal violated the applicant’s right to an effective remedy and rejected the contention of the Republic of Senegal that the complexity of the liquidation procedure was responsible for the three-year delay in the execution of a judgment of the country’s court delivered within four months.

The judge held that “since the three-year period put by the Defendent in enforcing the judgment is abnormally long, the applicant is right to maintain that her right to an effective remedy has been violated”.

The Court also held that the Applicant’s right to property had been violated, in the sense that “the applicant may display the divorce decree as a title granting her a right of ownership over all undivided property as long as the community of property is not liquidated and divided.”

It added that “by using procrastination and delaying procedures to allow one of the former spouses to enjoy the undivided property alone for three years, the Republic of Senegal violated the applicant’s right to property ‘ and ordered the State to take all appropriate measures to immediately liquidate the community of property between the  former spouses.

The Court however ruled that Republic of Senegal was not in violation of the applicant’s right to a fair trial, nor her right to equality before the law and to equal protection of the law, some of the grounds in the filed by the Applicant.

Before ruling on the merits of the case, the Court had declared its jurisdiction to hear the dispute but declared as ‘unfounded’,  the applicant’s request for an expedited procedure as ‘there is no need to submit the present case to the expedited procedure as there is no particular urgency in the present case which requires it to take a decision as soon as possible.

It held that the conditions for expedited procedure were therefore not met and therefore rejected the request as ‘unfounded “

The applicant Ms Ndoye, Awa, a divorcee and Senegalese national, applied to the Court alleging the violation of her human rights, mainly the right to a fair trial, an effective remedy, equality before the law, equal protection before the law and right to property.

The Applicant relied on Articles 7, 8, 10 and 17 of the Universal Declaration of Human Rights; Articles 2.3, 14.1 and 26 of the International Covenant on Civil and Political Rights; and Articles 3, 7 and 14 of the African Charter on Human and Peoples’ Rights.

She had asked the Court for an order to compel the State of Senegal to pay her the sum of three hundred million (300,000,000) CFA francs in compensation for the damage caused and to hold the State responsible for these violations and order it to execute the court decision ordering the liquidation of the property.

In the initiating application, Ms. Ndoye stated that on July 12, 2017, the Dakar District Court issued a divorce decree between her and Mr. Kandji Demba, the former husband. She noted that Ms. Aïssatou Diallo Ba, President of the Dakar District Court that  pronounced the divorce appointed herself as liquidator judge instead of appointing an expert.

The applicant noted that all the legal proceedings brought for the division of the property failed as she never received a reply to her applications and that while trying to resolve the issue judicially, Mrs. Aïssatou Diallo Ba, the president of the court of first instance, also a liquidator judge, offered to settle the case amicably which she opposed.

She alleged that there was a clear desire on the part of the liquidating judge not only to frustrate the process but also a tendency to favour her ex-husband who was also a magistrate like her.

She maintained that during all this judicial process, the former had sole access to their  common property which forced her to approach the Senegalese high courts to ask for damages and the allocation of an occupancy indemnity for all the property occupied, both of which were denied.

She added that when she appealed to the authorities to address the violations orchestrated by Dame Aïssatou and other magistrates in order to enforce the court decision which were frustrated. On the contrary, she noted that they preferred to protect these magistrates to the detriment of the proper functioning of the judicial administration and the protection which the law conferred on them.

The Republic of Senegal denied all the allegations by the applicant asserting that it had not violated any of the provisions cited by the applicant with regard to the principle of equality and equal protection of the law and requested that all his claims be rejected as ill-founded. The State therefore requested that she be ordered to pay the costs.

On the panel for the case were Justices Edward Amoako Asante, President and Januaria Tavares Silva Moreira Costa.