GUINEA

CASE N° GUI/01 - Mamadou Bhoye Ba
CASE N° GUI/02 - Mamadou Barry
CASE N° GUI/03 - Thierno Ousmane Diallo
CASE N° GUI/05 - El-Hadj Amiata Mady Kaba
CASE N° GUI/06 - Koumbafing Keita
CASE N° GUI/07 - Mamady Yö Kouyata
CASE N° GUI/08 - Ibrahima Kalil Keita

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 165th session (Berlin, 16 October 1999)

The Inter-Parliamentary Council,

Referring to the outline of the case of El-Hadj Amiata Mady Kaba, Ms. Koumbafing Keïta, Mr. Mamady Yö Kouyate and Mr. Ibrahima Kalil Keïta, members of the National Assembly of Guinea and opposition MPs, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/165/12(b)­R.1), and to the relevant resolution adopted at its 164th  session (April 1999),

Also having before it the case of Mr. Mamadou Bhoye Ba, Mr. Mamadou Barry and Mr. Thierno Ousmane Diallo, members of the National Assembly of Guinea and opposition MPs, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the " Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians ",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/165/12(b)-R.1), which contains a detailed outline of the case,

Considering that, according to the information on file, the current stage of investigation shows the following:

(i) El-Hadj Amiata Mady Kaba, a member of the High Court of Justice, Ms. Koumbafing Keïta, Mr. Mamady Yö Kouyate and Mr. Ibrahima Kalil Keïta were arrested on 18 and 20 December 1998 following a peaceful demonstration to call for the release of Mr. Alpha Condé, a deputy and a candidate in the presidential election, whose case is moreover being dealt with by the Council (see case N° GUI/04); as the National Assembly was not informed of any of these arrests, they were made without the prior lifting of the parliamentary immunity of the MPs concerned; according to the sources, the MPs were held for three months in Kankan Central Prison and suffered severe physical ill-treatment during their detention; on 16 March 1999 they were sentenced by the Kankan Court of First Instance to four months' imprisonment unsuspended and fined 150,000 Guinean francs each for causing a disturbance of the peace and holding an unauthorised demonstration; it has so far not been possible to obtain the text of the judgment,

(ii) on 24, 25 and 29 March 1998, respectively, Mr. Mamadou Bhoye Ba, Mr. Mamadou Barry and Mr. Thierno Ousmane Diallo were arrested without the prior lifting of their parliamentary immunity and accused of participating in or inciting a popular uprising which occurred on 23 March 1998 in the Kaporo-rail district of Conakry; the speech imputed to Mr. Ba was delivered some 400 kilometres from Conakry and more than three weeks before the event; at the close of a trial before the Conakry Court of First Instance, reportedly held in camera and flawed by serious irregularities, Mr. Barry and Mr. Diallo were sentenced, on 8 June 1998, to five months' unsuspended imprisonment and payment of a fine, and Mr. Ba to two months in prison; an appeal against the judgment and the sentence was lodged the next day but the court failed to act on it before the sentence had been served out; Mr. Ba, Mr. Barry and Mr. Diallo were released on 8 June, and 25 and 27 August, respectively, after serving out their sentences;

(iii) by resolution N° 001/AN/98 of 9 June 1999, the National Assembly submitted to the Supreme Court a complaint of failure to respect constitutional legality and called for suspension of the preventive detention to which the deputies were subject; by letter of 25 June 1999, the First President of the Supreme Court informed the President of the Assembly that " the Court can only ensure respect for constitutional legality and legality in general if it is seized in the conditions laid down by the Fundamental Law and by the Organic Law. As your letter does not fulfil these conditions, the Constitutional and Administrative Chamber cannot take any action without itself violating the rules relating to the procedure for seizure. Legality forms a whole. Had it been seized in time and in the appropriate conditions of competence, time frame, legality and form, the Court would have been in a position to react "; the President of the Assembly protested against this position, stating in a letter of 16 July to the Chief Justice of the Supreme Court that " while it is true that the Supreme Court can only ensure respect for constitutional legality and legality in general if it is seized in the conditions laid down by the Fundamental Law and by the Organic Law, I am nevertheless convinced that, in the case at hand, the resolution or petition of the Assembly could, in conformity with Article 52 of that same Constitution, have led to the suspension of the preventive detention or the prosecution of the persons concerned ",

(iv) Article 4 of Law N° 91/14/CTRN relating to eligibility requirements stipulates that " those who have been convicted of crimes or offences may not be elected deputies, unless they submit an act restoring their rights " ;; this provision is taken up in Article L 125 of the Electoral Code providing for loss of parliamentary mandate in the event of being so convicted, at the request of the National Assembly,

(v) the seven deputies have resumed their seats in Parliament since the Bureau of the National Assembly did not make any application for revocation of their mandates to the Supreme Court,

(vi) the source nevertheless fears that those concerned may be ineligible for the legislative elections in May-June 2000,

1. Recalls that immunity granted to MPs is designed to enable them to exercise their mandates freely and fully and to shield them from any kind of politically motivated prosecution;
2. Expresses deep concern at the arrest of the MPs concerned without the prior lifting of their parliamentary immunity on the pretext of flagrante delicto, and the fact that the Executive took no account of the application for suspension of the detention of Mr. Mamadou Bhoye Ba, Mr. Mamadou Barry and Mr. Thierno Ousmane Diallo made by the National Assembly in conformity with Article 52.4 of the Constitution;
3. Affirms that mutual respect for the powers, prerogatives, rights and privileges of the different branches of the State is essential to the rule of law and the proper functioning of parliamentary democracy;
4. Welcomes the action undertaken by the National Assembly to ensure respect for constitutional legality, and regrets that, on the basis of procedural considerations, the Supreme Court did not see fit to rule on such a serious application so significant for observance of the rules of democratic functioning and independence of the branches of the State;
5. Recalls that the common understanding of a flagrante delicto offence or crime is that of a crime or offence being or having just been committed, the offence being flagrante when the person suspected is pursued by public outcry, is found in possession of objects or displays manifest traces or signs of criminal behaviour;
6. Notes with concern that, contrary to its duty of handing down a ruling without delay, the courts failed to rule on the appeal launched by the deputies before they had served out their terms, thus exposing them to possible ineligibility in the future, and wishes to receive detailed information in this respect;
7. Requests the Committee on the Human Rights of Parliamentarians to raise the issues pertaining to this case on the occasion of its proposed mission to Guinea;
8. Requests the Secretary General to inform the President of the National Assembly and the Chief Justice of the Supreme Court of Guinea of its serious concerns regarding the aforesaid points;
9. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (April-May 2000).

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