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The Administrative Park in Mali’s capital, Bamako, in which the Ministry of Justice is located, January 2017.
© 2017 Image Professionals GmbH / Alamy Stock Photo
(Bamako) – Mali’s justice officials should scrupulously respect due process rights in the case of five men detained since December 2020 for allegedly plotting a coup against the Malian transitional government, Human Rights Watch said today.
On March 2, 2021, the Bamako Court of Appeals, in response to a defense request, dismissed the case for lack of evidence and ordered the immediate release of the five men. Mali’s attorney general immediately appealed the decision to the Supreme Court, which in mid-April will consider the Court of Appeals decision.
The absence of evidence against the defendants, as the Court of Appeals found, and due process violations under international law raise concern about possible political motivations in the handling of the case by the government, which took power in an August 18, 2020 military coup.
“Mali’s transitional government has promised to respect the rule of law, but irregularities in the ‘conspiracy’ case suggest otherwise,” said Corinne Dufka, Sahel director at Human Rights Watch. “Unless there is evidence to convict, the authorities should drop the charges and release the detainees.”
On December 21, state security agents arrested the five men – Mohamed Bathily, a journalist; Vital Robert Diop, Souleymane Kansai, Mahamadou Koné, and Aguibou Tall – who are senior civil servants or public and parastatal administrators. The security agents took them for interrogation at the headquarters of the General Directorate of State Security (DGSE), which has no authority to detain suspects, and held them incommunicado without access to their lawyers or families for several days.
Between December 23 and 25, the suspects were transferred to a gendarme camp in Bamako, where they had access to lawyers. They were placed under formal arrest orders and were informed of the charges against them. Court documents reviewed by Human Rights Watch indicate that the men were accused of conspiracy against the government, criminal conspiracy, and, in the case of the journalist, insulting the head of state.
A sixth man, Sekou Traoré, who was also arrested in December in relation to the alleged coup plot, was released several days later. Because he holds the status of a minister, his case was referred directly to the Supreme Court.
A seventh man, the former prime minister Boubou Cissé, is named in court documents as the alleged architect of the plot, but his whereabouts remain unknown. On December 24, at least five hooded and armed men searched Cissé’s house without a warrant and reportedly assaulted several people present, according to a close associate of Cissé’s interviewed by Human Rights Watch and press reports.
On December 31, an investigating judge placed the five suspects under a detention order (mandate de depot) and transferred them to Bamako Central Prison. The journalist, Bathily, also known as Ras Bath, alleged that his dreadlocks were cut against his will while in detention. The prosecutor on January 27 rejected the defendants’ request for provisional release.
On February 16, the then-advocate-general of the indictment chamber, Alou Nampé, heard arguments in the case and recommended an annulment for lack of evidence and immediate release of the detainees. A week later, on February 23, the justice minister reassigned the judges on the case – who were to act on Nampé’s recommendation – to other posts. Nonetheless, the Court of Appeals on March 2 dismissed the case.
Human Rights Watch remains concerned that the Malian authorities may be pursuing the case against the five men and their continued detention with little evidence to support their allegations. A prosecution news release on December 31 alleged that there was “sustained suspicious contact” between the defendants aimed at “sabotaging the transitional government.”
Four sources consulted by Human Rights Watch who were not part of the defense team found the case file to be devoid of detail and material proof such as intercepts, financial records, and witness statements that could have supported the charges.
The four sources also expressed due process concerns about the case, notably the initial unlawful detention by the General Directorate of State Security and its failure to disclose their investigation to the prosecutor or defense lawyers, as well the changes in judicial personnel set to rule on the case.
Under Mali’s civil law legal system, the state can appeal an acquittal. However, it has failed to articulate why the defendants should not qualify for provisional release, or why they pose a continued threat. Their continuing detention has yet to receive judicial review. It is also not apparent what new evidence has come to light that would justify the state’s appeal to the Supreme Court. A former justice minister, Mamadou Ismaïla Konaté, characterized the March 2 decision of the prosecution in a tweet as “a harmful offensive to thwart the effects of a court decision.”
Basic due process and fair trial rights are set out in the United Nations International Covenant on Civil and Political Rights and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (“African Fair Trial Principles”) of the African Commission on Human and Peoples’ Rights. The African Fair Trial Principles state that anyone deprived of their liberty should “be held in an officially recognized place of detention.” Criminal suspects should not be kept in custody pending their trial “[u]nless there is sufficient evidence that deems it necessary” to prevent the person “from fleeing, interfering with witnesses or posing a clear and serious risk to others.”
The African Fair Trial Principles further state that a fair hearing includes “an entitlement to have a party’s rights and obligations affected only by a decision based solely on evidence presented to the judicial body.” The UN Guidelines on the Role of Prosecutors provide that “[p]rosecutors shall not … continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.”
“All Malians are entitled to have their cases impartially investigated and tried in accordance with due process guarantees,” Dufka said. “This appears not to have been entirely true in this case.”