Practice Relating to Rule 159. Amnesty
Section A. Amnesty for participation in non-international armed conflicts
Senegal’s Law on Amnesty (1991) states:
Amnestied by law are all criminal offences … [committed] between 1 August 1987 and 1 June 1991 in Senegal or abroad in relation to the events referred to as “of Casamance”.
Amnestied by law are the crimes of attacking and plotting to destabilize the security of the Senegalese State and the integrity of the national territory, prohibited and punished by Articles 72 and 73 of the Penal Code, committed prior to 31 July 1987 and in relation to events referred to as “of Casamance” and whose perpetrators have been punished with a penalty of or above 15 years’ imprisonment.
In 1995, in its second periodic report to the Committee against Torture, Senegal stated:
Article 12 [of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
73. The implementation of this article of the Convention encounters serious obstacles in Senegal and this has led to much debate between the authorities of the country, on the one hand, and the United Nations human rights monitoring bodies and some non-governmental organizations, on the other. In order to have a better idea of the problem, this report must clearly describe the position under international and internal law and the facts at issue.
74. Basically, both international and Senegalese internal law are applicable.
75. Article 12 of the Convention against Torture provides that “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”.
Senegalese internal law
76. Article 79 of the  Constitution stipulates that “Treaties or agreements duly ratified or approved shall, upon their publication, prevail over the laws, subject to each treaty or agreement being implemented by the other party”.
83. Amnesty laws also exist: the Act of 4 June 1988, the Act of 10 July 1991 and the Act of 8 July 1993. These legal texts were adopted by the Senegalese legislative authorities between 1988 and 1993 in response to the growing instability in the Casamance region, in the south of the country, after December 1982. Their aim was to enable the authorities to restore peace throughout the country whenever the opportunity arose and to repair the national social fabric, which had been damaged by events in this region.
84. Under article 8 of these texts, all offences and all principal, related, secondary or supplementary judgements in criminal or correctional cases were amnestied under the first articles. They were to be expunged forever from the police record of the persons concerned. Moreover, these texts prohibited any public servant or other official from referring to these offences or to the judgements relating to them under any pretext whatsoever.
85. As far as the facts at issue are concerned, it will be remembered that the 1980s were a time of serious instability in the Casamance region in the south of Senegal and that this resulted in the intervention of the armed forces to restore and maintain order. This conflict between the central Government and the separatist movement in the region (MFDC [Movement of Democratic Forces of Casamance]) took the form of armed confrontations leading to deaths and injuries on both sides.
86. One of these clashes, at Kaguitt on 1 September 1992[,] was particularly deadly, as it occurred the day after the agreement was signed between the Senegalese Government and the separatist movement. The latter broke its promises by suddenly taking up arms again. The security forces arrested many persons who were brought before the courts.
87. The 1993 agreement led to the release of all persons detained in connection with this event, even before trial. However, some Senegalese and international non-governmental organizations took up the Kaguitt file by lodging a complaint with the African Commission on Human and Peoples’ Rights in Banjul and with the monitoring bodies of the Commission on Human Rights in Geneva. These complaints contained a list of the names of persons who had allegedly disappeared or been executed extrajudicially during the September 1992 events.
88. The Senegalese Government was questioned by both bodies and asked to conduct investigations in accordance with the provisions of article 12 of this Convention and to try and punish the guilty parties.
89. The Senegalese authorities pointed out that the amnesty laws had erased the memory of this tragic episode in Senegal and that, in their opinion, further reference to these events would jeopardize the peace which had already been established and even the stability of the country.
95. The various events described above have prompted much discussion between the Senegalese authorities, on the one hand, and humanitarian organizations and the human rights monitoring bodies, on the other.
96. With regard to the presumed disappearances and extrajudicial executions in connection with the events in Casamance in general, the human rights monitoring bodies are demanding that impartial investigations should be conducted in accordance with article 12 of the Convention to identify the persons responsible, who would then be tried and punished. The Senegalese authorities have pointed out, in this connection, that the amnesty laws no longer permit such investigations, which would be likely to jeopardize the newly restored peace, national cohesion and the stability of public institutions.
97. The Senegalese authorities have received the reply that article 79 of their own Constitution gives the Convention precedence over the internal law of the State party to the international instrument. As the Convention is a multilateral international instrument reciprocally applied by several States parties, this situation is becoming a permanent problem.
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
II. Implementation of the conclusions and recommendations of the Committee
The Committee is concerned that, in its report, the State party invokes a discrepancy between international and internal law to justify granting impunity for acts of torture on the basis of the amnesty laws.
200. In the 1990s, as part of the search for possible solutions to the crisis in Casamance, Parliament was obliged to pass an amnesty law specifically targeting the combatants of the Movement of Democratic Forces of Casamance in order to ease tensions and to establish a framework conducive to cooperation and dialogue that would bring about lasting peace.
201. The improvement in the situation that this brought allowed the Government of Senegal to open a dialogue with the leaders of the Movement and, on 30 December 2004, to conclude peace agreements that were welcomed by all. The restoration of peace went hand in hand with a project in which the State is investing tens of thousands of CFA francs to rebuild the devastated region. The plan is intended to stimulate economic recovery and to facilitate the integration of former combatants into the workforce.
202. War and armed conflict are closely associated with the denial of fundamental human rights. Their prolongation is tantamount to creating a climate conducive to the perpetration of acts of torture and other violations of the physical integrity of human beings.
203. However, the Declaration on the Right of Peoples to Peace, adopted by the General Assembly in its resolution 39/11 of 12 November 1984, clearly provides that: “The peoples of our planet have a sacred right to peace” and that “the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State”.
204. Senegal fully subscribes to the view expressed by the Human Rights Committee in its general comment No. 20 of 10 April 1992 on the prohibition of torture or cruel, inhuman or degrading treatment or punishment when it states that: “Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.”
205. Nevertheless, Senegal would like the Committee to take into account the fact that the sole aim of the aforementioned amnesties was to restore peace and to put an end to a situation that was conducive to massive violations of fundamental human rights.
206. The amnesty laws adopted in order to bring peace to the Casamance region were born out of the necessity to respond to “a pressing social need” and Senegal, in good faith, maintains that it acted to safeguard the general interest without undermining the basic rights of the individual in any fundamental way.
207. Indeed, under the Senegalese legal system, although an amnesty law does bar criminal prosecution and remits any sentences that have been handed down, it does not eradicate material facts or their civil consequences. It is always possible for victims to refer their case to the civil courts in order to obtain a settlement that will grant them just satisfaction.