Mandiaye Niang, a Senegalese prosecutor at the ICC

By Mehdi Ba
Posted on Friday, 17 December 2021 19:27

Mandiaye Niang, pictured here on 16 November 2021 in Dakar, was the only African candidate who applied for the ICC’s deputy prosecutor position. © Sylvain Cherkaoui for JA

It is now official. On 10 December, the assembly of states parties elected Senegal’s 61-year-old Mandiaye Niang as Karim Khan’s deputy prosecutor at the International Criminal Court (ICC). He was the only African who applied for the post – magistrate Nazhat Shammeem Khan, from Fiji, was elected alongside him . So far, the court has only tried nationals from the African continent.

A month before his appointment, Niang had received us in his vast Dakar villa. There, he looked back over his long career that had taken him successively from Senegal’s cour de cassation – where he had to deal, despite his young age and during the mid-1990s, with an emblematic political crime – to the International Criminal Tribunal for Rwanda (ICTR) in Arusha and then the court of appeal of the two international tribunals established by the UN (Rwanda and the former Yugoslavia) in The Hague.

In 2016, once his mandate had ended, Niang returned to Senegal where he served as director of criminal affairs and pardons at the ministry of justice and, since June 2020, public prosecutor at Saint-Louis’ court of appeal. On 10 December, he was elected during the third round of voting, with 67 votes out of 90 states represented, against two other candidates: one Guatemalan, the other Franco-American. He discussed his long judicial journey with us as well as the challenges facing the ICC, which will celebrate its 20th anniversary in July 2022.

“Before joining the ICTR, I was an auditor at the Senegalese cour de cassation. I was also a judge,” says Niang. “But at university, just like at the beginning of my career, my favourite field was civil law, in particular, the general theory of obligations – which is known as the algebra of law. In Senegal, we do not specialise in anything, so it was not unusual that I was assigned to criminal cases. I followed the hearings featuring major offences and, very quickly, was put in charge of a criminal court.”

Political assassination

In May 1993, Niang was tasked with a highly sensitive case. The day after the legislative elections, which marked the victory of then president Abdou Diouf’s Parti Socialiste over the Parti Démocratique Sénégalais (PDS) of his rival Abdoulaye Wade, the Senegalese lawyer and politician Babacar Sèye – Saint-Louis’ former government representative and mayor, then vice-president of the constitutional council – was assassinated in his vehicle in Dakar, while returning home.

As soon as he was elected as a judge at the ICTR, he immediately let me know that he would need me: that is how I came to join the tribunal in 1997 […] even though I was actually recruited back in December 1995.

“I was only 32 years old at the time, so I was surprised that the public prosecutor had entrusted me with such a sensitive case,” he says. “A ruling by the court of appeal’s indictment division had just dismissed the case against the suspects, the most prominent of whom was the country’s main oppositionist, Abdoulaye Wade. Once the case had been examined by the cour de cassation, I was tasked with the responsibility of representing the public prosecutor’s office.”

Sèye, who had just validated the results – which were contested by the opposition – of the legislative elections, was killed in a mafia-like incident. Meanwhile, the young magistrate found himself propelled into another galaxy. “The main issue surrounding the case was that the dominant trail led straight to Wade’s PDS. The latter had been indicted as the possible sponsor of this assassination.”

Despite the pressure on his shoulders, Niang said that the indictment division of the court of appeal’s decision was flawed in many respects and should be censured. “One of the court of appeal’s main conclusions was that, despite a lack of evidence, the cour d’assises could pursue the remaining leads. However, at the time, I felt that this contradicted the case law and the procedure expected of a court. My interpretation was that a judge who has the means to carry out an investigation cannot pass it on to another court.” The cour de cassation eventually confirmed that a trial would be held, but that it wouldn’t involve Wade.

Magistrate at the ICTR

At the cour de cassation, Niang worked alongside Laïty Kama, the cour de cassation’s first advocate general – who died in 2001. “As my mentor at the time, he essentially relied on me,” Niang says. Kama, a member of the Senegalese delegation to the United Nations Commission on Human Rights in Geneva from 1983 to 1990, was very active on human rights.

“After the genocide against the Tutsis in Rwanda and the creation of the ICTR at the end of 1994, his name quickly emerged as one of the judges of the Arusha tribunal. As soon as he was elected as a judge at the ICTR, he immediately let me know that he would need me: that is how I came to join the tribunal in 1997 […] even though I was actually recruited back in December 1995.”

Assigned to investigate figures suspected of having played an important role in the genocide, Niang was initially based in Kigali for a little over two years. He criss-crossed the hills of Rwanda and travelled the world in search of witnesses. “In the ad hoc tribunals on Rwanda and the former Yugoslavia, the prosecutor general has an investigation unit, a legal unit and a prosecution unit. There is no investigating judge or judicial police unit, instead there are investigators. They are the ones who collect testimonies, documentary evidence or other evidence, which the legal services then analyse to build an indictment.”

The judges then come in, as per the US model. The prosecutor presents his evidence on the basis of an indictment and asks a judge to validate it. “The judge examines the strength of the presumptions and, if they seem credible, validates them and issues an arrest warrant. In this case, the suspected person becomes an accused, who also has rights. Since there is no investigating judge, the defence is then allowed to conduct its own investigations. If they cannot afford it, the court pays for it.”

Demonstrating premeditation

Niang’s first trial was that of Alfred Musema, the former CEO of a tea factory based in Gisovu, in the Kibuye prefecture, in western Rwanda. “He had played a key role in perpetrating the genocide and had been arrested in Switzerland. As I was the only French-speaking magistrate in the group, I made sure that the Swiss investigating judge had received the necessary information to indict him. I remember that, at the time, it amounted to about ten thick binders.”

Other cases followed. The prosecution had a major stumbling block as they had to demonstrate that the genocide committed against the Tutsis had been premeditated. “The concept of ‘conspiracy to commit genocide” did not originate with the ICTR, but rather with the 1948 convention, which provides for the punishment of both preparatory acts and genocide itself, once committed. However, Anglo-Saxon law distinguishes between offences actually committed and what are known as ‘uncompleted offences’.” However, according to the magistrate, ICTR jurisprudence has it that mere preparatory acts that lead to genocide are sufficient enough to justify a conviction.

At the beginning of the ICTR trials, there was a doctrinal debate between the Romano-Germanic interpretation and Anglo-Saxon law. For the latter, every wrongdoing is likely to constitute an indictment – for which the suspected person must be able to answer, but in Romano-Germanic legal thinking, “where there is a gradation in the course of the crime, the element that is most important should be charged. For example, the fact of having stolen trumps the attempt to steal”, says Niang.

Criticism of the ICC

The Senegalese’s mandate at the international criminal tribunals for Rwanda and the former Yugoslavia ended in 2016. Now, he will have to examine the cases that the ICC – a jurisdiction that is repeatedly criticised for its exclusive focus on African cases and defendants, even though its legitimacy stems largely from the continent – deals with.

The ICC is not the United Nations. It depends upon the assembly of states parties to the Rome Statute, and African states are the most dynamic contingent of signatories to this treaty, with 33 countries, well ahead of the other continents,” says Niang.

According to the magistrate, a misunderstanding persists. “First, there is an insufficient perception of complementarity. The ICC is a court of last resort. In other words, it leaves it up to national or regional jurisdictions to deal with cases. The other dimension worth noting is that African states, from Côte d’Ivoire to Central African Republic, have called upon them on several occasions for help. The ICC has not taken up the case on its own.”

Is the continent rightly offended to be the only one in the court’s sights? Niang puts this hackneyed indignation into perspective. “In Africa, we want justice, and we never stop asking for it! So if an international institution can give it to us, why complain? We could have lamented that we are the ones left out of international justice, but that is not the case.”

Cases fall apart

Does this mean that no war crimes or crimes against humanity are committed outside of Africa? “At present, cases remain open in Venezuela, Colombia and Afghanistan, but we note that these cases, which have been open for a decade or so, have not made any significant progress. The desire to establish a geographical balance is not enough. The ICC comes in response to an African request.”

Nevertheless, in recent years, two emblematic cases have tarnished the court’s reputation: that of the Democratic Republic of Congo’s Jean-Pierre Bemba, who was acquitted in 2018 after being convicted of ‘war crimes’ and ‘crimes against humanity’ and having been imprisoned for 10 years, and those of Côte d’Ivoire’s former President Laurent Gbagbo and his ex-youth minister Charles Blé Goudé, who were definitively acquitted on appeal in March 2021, after having been convicted of crimes against humanity. One was imprisoned by the ICC in 2011 and the other in 2014.

As a future deputy prosecutor, I would like the people who go into the field to not only be seasoned from a judicial or police point of view, but also to be investigators who understand the atmosphere, the languages and the local African specificities.

“You will understand that I cannot express an opinion on the content of these cases, in which I did not collaborate,” says Niang. “However, there are lessons to be learned. Karim Khan himself was a lawyer before he joined the ICC and during his campaign, he insisted that the prosecutor should have a sufficiently strong case to support the prosecution with substantiated evidence, but clearly, we have been going to trial while we are still looking for that evidence.”

Avoiding mistakes

How does he intend to avoid such mistakes in the future? “As a prosecutor, when you’re dealing with accusations and profiles of this nature, you have to be on solid ground, but you have to bear in mind that when the charges are levelled against political or military leaders at a certain level, you are rarely dealing with people who go out into the field carrying a weapon themselves. The charges are more about statements, meetings, influence too.”

In some investigations, based on press reviews and NGO reports, ICC judges have questioned the relevance of the prosecution’s case. As the only magistrate of African origin and the only French-speaking member of the group, Niang knows that the game has not yet been won. “It is true that the court has been criticised for having English-speaking investigators who do not speak French and are ignorant of the local culture, investigating in Côte d’Ivoire, for example.”

Does he intend to propose an antidote? “As a future deputy prosecutor, I would like the people who go into the field to not only be seasoned from a judicial or police point of view, but also to be investigators who understand the atmosphere, the languages and the local African specificities.”

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