UPDATE: Law and Legal Systems in Mauritania

By Keli Vrindavan Devi Dasi

Miss Kevashinee Pillay (Keli Vrindavan Devi Dasi) holds a law degree (LL.B.) from the Howard College School of Law (University of Kwa Zulu Natal), Durban, South Africa (2006). She is also an attorney of the Republic of South Africa (Kwa Zulu Natal Law Society since 2009). She holds a master’s degree in human rights and democratization in Africa (LL.M.), from the Centre for Human Rights, University of Pretoria, South Africa, and Université Gaston Berger de Saint Louis in Senegal (2011). Further, she has worked at national, regional, and international organizations in the field of human rights and served as the senior researcher to the United Nations First Special Rapporteur on the situation of human rights in Eritrea (2013). At the commencement of her doctoral studies in 2014, at the Faculty of Law, Nelson Mandela University, Port Elizabeth, South Africa in partnership with the Institute for Coastal and Marine Research, Port Elizabeth, South Africa, and the Centre for Human Rights, University of Pretoria, South Africa [currently on hold], her research interests have included Climate Change and Sea Level Rise, Global South Approaches to Law of the Sea, Law of the Sea and Human Rights under International Law and Maritime Security in Africa.

Published November/December 2022

(Previously updated by Kevashinee Pillay in March 2017)

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1. Introduction: Background and Context

The Republic of Mauritania is in the Northwestern region of Africa. It is situated in the Southwestern Maghreb and the African Transition Zone (Sahel). It is bordered by the Atlantic Ocean in the Southwest and the Sahrawi Arab Democratic Republic (Western Sahara) in the Northwest, the Republic of Mali (Mali) the to the East and Southeast, the People’s Democratic Republic of Algeria (Algeria) to the Northeast and the Republic of Senegal (Senegal) to the Southwest. The country comprises of a landmass of 1,025,520 square km, is mainly covered by the Sahara and most of the country is desert or semidesert. The southern quarter of Mauritania is in the semi-arid Sahel zone.
Mauritania has a population of four million people, and about one-fourth of the population live in the capital and largest city Nouakchott, which is situated between the dune and dunes and the ocean.
Mauritania's demographic landscape include 70% Moors [people of Amazigh (Berber) and Arab descent], and 30% non-Arabic speaking Africans namely: the Wolof, the Bambara, and the Fulas. The official languages of Mauritanian are Arabic, Wolof, and French. Mauritania is an Islamic Republic with the majority being Sunni Muslims. The official legal currency is the is Ouguiya; however, the Euro is the preferred currency.[1]Mauritania is one of the least visited countries in the world; however, the dunes (ergs) of the Sahara, oases lined with date palms, rocks(regs) hamadas and magnetic mountains make create the beauty of Mauritania.Other magnanimous features include the highest peak in Mauritania, the Kediet ej Jill. The Kediet ej Jill is a black metal mountain made of magnetite. The magnetic mineral has been commercially mined since the 1950s. The mined iron ore is transported across the desert to a port 700 km away on the only railroad track in the country. The length of the train (up to almost 3 km) makes it one of the longest freight trains in the world. Ben Amera is another land feature that adds luster to Mauritania. Ben Amera is the largest monolith in Africa and rises 633 meters above the desert floor and is 1.7 km wide. Further, the Adrar Plateau is an impressive dark table mountains in the desert. The Richat Structure (Guelb er Richat or the Eye of the Sahara), a massive ring-shaped, crater-like geological formation in Mauritania’s desert with a diameter of about 40 km, is believed to be the remains of the lost city of Atlantis. The lost city of Ouadane, an 11th century fortified settlement on the edge of the Richat Structure, was a stopover on the trans-Saharan trade routes. Banc d'Arguin, the coastal area with dunes, marshes, and small islands, is home to the Imraguen tribe and a popular destination for migratory birds. Further, the diverse biodiversity characterizes the landscape of Mauritania, and the Matmata Lake is home to pelicans, Palearctic migratory waders, and crocodiles.[2]Moreover, Mauritania currently has two national parks, four fauna reserves, three Ramsar sites, and four UNESCO-MAB biosphere reserves. 0.7 million hectares are protected land areas (0.6 % of Mauritania’s total area; and this source mentions nine protected areas. Moreover, there are 16.3 million hectares of marine protected areas (MPAs) in within Mauritania’s Atlantic Ocean (4.2% of its ocean waters).[3] The legal system of Mauritania is an amalgamation inherited French Civil Law legal system and Sharia Law. The legal structure established after independence created a system of courts comprising Cadis courts alongside a conventional three-degree court system (courts of first instance, labour courts, Superior Court of Appeal and the Supreme Court). The Cadis Courts applied solely Sharia law. However, all the other courts where internally structured in two chambers, one for Islamic law and the other for modern law.[4] In 1983 a law on judicial re-organisation abolished the separation of Islamic and modern chambers in courts, establishing a unified system that was to apply predominantly Sharia law.[5] Similarly there were major efforts to reform all substantive laws to make them reflect Sharia law.[6] However, this theoretical predominance of Sharia law has not fundamentally altered the Civil Law foundation upon which the legal system has been developed.[7]

2.1. Sources of Law

Shari, the Constitution, legislation (organic laws, ordinary laws, ordinances, and decrees) and treaties are the sources of Mauritanian law.

2.1.1. Sharia Law

Islam is the constitutionally recognised “the religion of the people and of the State”.[8] The preamble of the Constitution names Sharia as “the sole source of law”. References in other pieces of legislation further affirm this primacy of Shari. For example, the swearing-in oath of the President of the Supreme Court, that is the top official of the Judicial Power, enjoins him, in the exercise of his functions, to respect “Shari, the Constitution and laws”.[9]Considering this theoretical primacy of Shari law, there have been debates as to whether Sharia is a true source of law in the sense of direct application of all Sharia norms in the courts or whether those norms must first be included in legislations before being applicable. The 1980s reforms that postulated the supremacy of Sharia also effected a merger of the two bodies of judges (Sharia judges and modern judges) into a single magistracy whose members were appointed to head courts irrespective of earlier specialisation.[10] Some of the former Sharia judges sought to implement exclusively Sharia norms on the ground that the new dispensation had abolished modern laws.[11] This move was stopped by a 1986 Ordinance which stated that any judge who refused to apply a law in force would be revoked by a simple decree upon a report of the Minister of Justice.[12] Also one would note that Article 1 of the 1984 Civil, Commercial and Administrative Procedure Code whose wording supported the view of the direct applicability of all Sharia norms, and which gave rise to Court of Appeal’ s rulings upholding that view,[13] has not been replicated in subsequent amendments of the Code.[14] Hence it would appear the right position is that stated by Mohamed Ould Salah to the effect that Sharia is a compelling source only for the legislator and must be translated into legislations before being applicable in courts.[15] However, it seems Sharia norms can lawfully be invoked in courts as a sort of ‘common law’ in the absence of, or in complement to, legislations. One finds an example of a Sharia rule being invoked in complement to laws in a judgement of the Constitutional Council in which the Sharia principle of ‘having advantages prevailed and avoid mischief’ was invoked.[16]Sharia norms have been included in laws. This is the case for example of the Penal Code which contains Sharia crimes such heresy, apostasy, atheism, refusal to pray, adultery,[17] and alcoholism,[18] as well as punishments such as lapidation, amputation and flagellation.[19] Equally, the 2001 Personal Status Code reflects Sharia norms and its Article 311 states that for difficulties of interpretation as well as in cases where the Code is silent, reference should be made to Shari. The Criminal Procedure Code (article 363) and the Penal Code provide for the application of the Sharia rules of evidence. The Code of contract and Obligations exclude business transactions prohibited by Sharia such as usury.To date, Islam remains the foundation of the State and Sharia Law still prevails very strongly in Mauritania. In December 2014, a young man accused of apostasy (he protested against the use of Islam to justify the marginalization of the low social status of blacksmiths) was sentenced to the death penalty on the basis of Sharia Law. This was the first individual to be sentenced to death for the crime of apostasy. There have been ongoing debates on the abolishment of the death penalty in Mauritania and the issue of invoking death sentences have been an issue of great concern.[20]

2.1.2. The Constitution

The first constitution of Mauritania, adopted in March 1959, was modelled on the constitution of the French Fifth Republic which recognized principles of separation of the three powers while leaning towards a strong Executive. Subsequent constitutional amendments have maintained that initial framework. The current Constitution is the 1991 Constitution drafted by a committee of experts and adopted by referendum on 12 July 1991. This Constitution establishes an Executive (a President and a Prime Minister with all power remaining however in the hands of the former); a bicameral parliament (The National Assembly and the Senate); and consultative institutions such as the High Islamic Council and the Economic and Social Council.On 25 June 2006, Mauritanians approved through a referendum, amendments to the 1991 Constitution. These amendments relate to the reduction of the Presidential mandate from six years to five years and its limitation to a maximum of two terms.[21] Arising from this are two mechanisms. The first mechanism is the inclusion in the swearing-in oath of the President of the Republic of an undertaking not to do anything directly or indirectly to amend the duration of the presidential mandate and the two-term limit.[22] The second mechanism is the prohibition of any future amendment relating to the presidential mandate and the two-term limit.[23]Another interesting issue introduced by the 2006 amendments is the requirement to systematically reform all laws contrary to the Constitution within a maximum period of three years, at the end of which any citizen may approach the Constitutional Council to adjudicate on the constitutionality of any such laws.[24]

2.1.3. Legislation(s)

As per Article 45 of the Constitution, legislative power belongs to the Parliament. However, like in other Civil Law countries, a residual legislative power is left in the hands of the Executive. Articles 57 and 58 of the Constitution exhaustively list the subject areas that constitute the exclusively legislative domain of Parliament. As per Article 59 of the Constitution, all matters not listed in Articles 57 and 58 fall under the regulatory power (pouvoir réglementaire) of the Executive which exercises it through decrees. This regulatory power belongs to the President of the Republic who may delegate part or the totality of it to the Prime Minister.[25]A common feature of civil law systems, the Government may in certain circumstances ‘legislate’ on subject areas within the exclusive legislative competence of Parliament by way of ordinances. This is regulated by Article 60 of the Constitution, which states that “with the agreement of the President of the Republic, the government, in order to execute its program, may ask the Parliament for the authorization for a limited period of time to pass ordinances for measures which are normally in the domain of the law”. These ordinances must be adopted at a Council of Ministers and signed by the President of the Republic. They enter into force immediately after their publication and must subsequently be tabled before the Parliament, within the timeframe stated in the enabling law, for purposes of ratification. However, it would appear the requirement of ratification is dispensed with in case of dissolution of the Parliament. Given the repeated military coups and the consequential suspension of Parliament, one would unsurprisingly find that most of the laws of Mauritania have been enacted by ordinances.Worthy of noting is a category of laws known as organic laws. These serve to define the legal framework of key institutions and processes mentioned in the Constitution. In total, the Constitution prescribes for the enactment of nine organic laws.[26] The adoption or amendment of organic laws is subject to relatively stricter conditions stated in Article 67 of the Constitution; one of which is that their constitutionality must first be checked and certified by the Constitutional Council before they can be promulgated.

2.1.4. Treaties and International Conventions

As a monist state, treaties duly ratified form part and parcel of the Mauritanian domestic legal system. The Constitution states that duly ratified treaties are hierarchically superior to domestic legislations provided the other party to the treaty implement their own obligation.[27] The power to negotiate and sign treaties belongs to the President of the Republic. Once the President of the Republic has signed a treaty, four possibilities may arise. Firstly, if the subject matter of the treaty falls within the areas listed in Article 78(1) of the Constitution,[28] then it can only be ratified through a law passed by Parliament. Secondly, if the treaty is about the cession, exchange or annexation of the national territory, a referendum with 4/5 approval of the electorate is needed. Thirdly, in case the treaty is found in contradiction with a provision of the Constitution by the Constitutional Council, then it can only be ratified after the appropriate amendment of the Constitution has been effected. Lastly, although not expressly stated, the wording of Article 78 suggests that treaties which do not fall under the listed subject areas can be ratified by the President through simple decree.One may note the similarity of the Mauritanian constitutional provisions on treaties to those of other French-speaking African countries.[29]

2.2. Court Structure

A distinction may be drawn between courts directly established by the Constitution and ordinary courts of law which make up the Judicial Power described under Title VII of the Constitution. Quasi-judicial bodies also deserve consideration.

2.2.1. Courts Established by the Constitution Constitutional Council
Regulated by Articles 81-88 of the Constitution and its organic law (Ordinance no. 92.04 of 18 February 1992), the Constitutional Council is the highest court of the land on issues of constitutionality of laws and electoral litigation.[30] The Council is composed of six members: its President and two members appointed by the President of the Republic, two by the President of the National Assembly, and one by the President of Senate. The mandate of members of the Constitutional Council is nine years non-renewable, and membership is renewed by 1/3 every three years. The quorum is four members, except in case of force majeure duly stated in the records of proceeding of the Council.[31]Once seized, the Constitutional Council must rule within a maximum period of 30 days, which can be reduced to eight days in case of urgency. Decisions are taken by simple majority and there are no dissenting judgements. However, when the Constitutional Council sits for the declaration of vacancy at the Presidency of the Republic, it must decide by an absolute majority of its members.[32] Decisions of the Constitutional Council are final and binding on all public, administrative, and judicial authorities.[33] All decisions of the Constitutional Council are published in the Official Gazette.In general, the Constitutional Council may be seized by the President of the Republic, The Prime Minister, the President of the National Assembly, the President of the Senate and 1/3 of members of the National Assembly or Senate. Article 102 of the Constitution also gives the opportunity for any individual to seize the Constitutional Council in relation to any pre-25 June 2006 law inconsistent with the Constitution which has not been amended after 25 June 2009, that is, after the three-year maximum period for their revision. The Council cannot seize itself at its own motion.The main jurisdiction of the Constitutional Council is about the control of constitutionality of laws which is exercised prior to their promulgation. This control is mandatory for all organic laws and standing rules of the two chambers of parliament. The Prime Minister has the responsibility to submit all organic laws or amendments thereof to the Constitutional Council and the submission of standing rules of the two chambers of Parliament are done their respective president.[34] Likewise, ordinary laws and treaties may be submitted to the Constitutional Council for the control of their conformity with the Constitution.Apart from the control of constitutionality, the other main area of jurisdiction of the Constitutional Council is elections. The Council has power to control and pronounce the results of referendums;[35] receive candidatures to the presidential elections, control the process, pronounce results and entertain disputes related thereto;[36] and entertain litigations relating to the elections of members of the two houses of Parliament.[37] Any registered voter or candidate may seize the Constitutional Council in relation to its electoral jurisdiction.[38]Other areas of the jurisdiction of the Council include: the determination whether a disposition falls under the legislative or statutory domain;[39] the declaration of vacancy at the President of the Republic.[40] Lastly the Council may be seized by the President of the Republic for advisory opinion.[41] There have been some positive developments in the judicial system since 2014, such as courts dedicated specifically to economic crimes and a court related to slavery. The latter court is yet to become functional.[42] Further, there needs to be further transformation in terms of human resources and financing of court systems. Cour des Comptes
The Cour des Comptes is provided for by Article 68 of the Constitution and regulated by Law n°93-19 of 26 January 1993 as amended by Ordinance n° 2007- 006 of 12 January 2007.[43] The Cour is the superior institution of the land in charge of the control of public finance.[44] As per article 3 of Law n°93-19, the Cour through its permanent and systematic actions of verification, information and advice, seeks to achieve the followings objectives: The Cour is composed of Members appointed by decree and of a technical staff (auditors and counsellors) selected through a competitive exam.[45] Since the 2007 amendment, the President of the Cour is appointed for a five-year mandate renewable only once. [46] This greater security of tenure of the Cour’s President locates itself in the general perspective of the 2007 Ordinance which seeks to boost the independence of the Cour is mindful of the fact that a mere formal statement of independence in the 1993 Law did not succeed in insulating the Cour from the influence of the Executive with the direct result that widespread corruption in the public services went unchecked.[47] The second personality of the Cour is the Commissioner of Government who is equally appointed by decree and constitutes with his two deputies the Cour’s Legal department (prosecuting authority).[48]The Cour disposes of jurisdictional and extra-jurisdictional competences. The jurisdictional competence of the Cour comprises the control of the account of public accountants and sanctions of financial management faults (fautes de gestion).[49] The Cour must sit in odd number, and the panel must be constituted of a minimum of three members. Decisions are taken by simple majority vote and subject to appeal and revision before the Cour is differently constituted. For the control of financial management faults, the action is triggered by the Commissioner of Government either on his own motion, for matters being controlled by the Cour, or at the request of the Prime Minister, the Minister of Finance, or the minister under whose department the fault has been committed.It is worth noting that the Cour does not apply penal sanctions as its sanctions are limited to penalties and recommendations of suspension from exercising functions linked with management of public funds. However, proceedings before the Cour do not pre-empt criminal prosecution if the facts also amount to a criminal offence. The Commissioner of the Government is empowered in those cases to transmit the matters to the minister of justice.[50]As for the extra-jurisdictional competence, this includes the assistance the Cour gives to the Parliament in terms of control of the national budget and its execution, and the control of finances of the state institutions including parastatals.[51] These controls are done either because of seizure of the Cour by government or as part of its routine control. The Cour is required to prepare a general annual report addressed to the President of the Republic in which it presents its observations and makes recommendations. High Court of Justice
Articles 92 and 93 of the Constitution provide for the establishment of a High Court of Justice constituted by MPs in equal number from both chambers of Parliament.In September 2008, the National assembly and the Senate respectively elected four members each, given that the Organic law makes for an eight-member Court. The Court is thus already in existence and is to be re-elected at every new legislature.

2.2.2. Ordinary Courts of Law

The judicial structure of Mauritania is currently regulated by Ordinance n 2007/012 of 8 February 2007. The Ordinance creates a conventional three instance court system comprising: Supreme Court
The Supreme Court is the highest court of the land in all matters except those falling under the jurisdiction of the constitutionally established courts as discussed above.[53] The Court is competent to hear appeals from decisions of Courts of Appeal or decisions in first and last resort of courts of first instance,[54] and has advisory powers.[55] As a court of law and not facts, the Supreme Court limits its scrutiny of decisions of lower courts to whether a law, procedural or substantive, has been violated. The Court is not a supreme court but a cour de cassation similar to the French system. As such, once it finds that a decision of the lower court is contrary to the law, it does not replace the ruling with its own ruling but simply overturns (casser) the decision. The matter is then sent to another court of appeal for a new decision on the substance of the case.The Court is composed of a President appointed by the President of the Republic for a five-year mandate that is renewable, of presidents of Chambers (the most senior of whom is the Vice President of the Court) and of counsellors. It is subdivided into five chambers (two civil and labour chambers, one commercial, one administrative, and one criminal chamber). Each chamber is constituted by a president and four counsellors who all sit as a panel to hear cases falling under their chamber’s specialisation. Unlike other chambers which only hear cases in appeal from lower courts, the administrative chamber is unique in that it has jurisdiction over two categories of cases:[56] 1) cases which the Chamber hears as appeal from the administrative chambers of a Court of Appeal; and 2) cases which as per article 11 (2) of Ordinance 2007/012, are to be heard in first and last resort by the Supreme Court. Cases which fall under the first category are those listed under the administrative competence of the Wilaya court (below). Matters falling under the second category are listed in Article 28 of the 1999 Civil, Commercial and Administrative Procedure Code and include actions against abuse of power or in appreciation of the legality of administrative acts of an individual or regulatory character; litigations relating to the individual situation of public servants and agents; certain matters relating to national (public) land including mining concessions; matters relating to expropriation for public use excluding litigations for compensation thereof; and litigations relating to municipal elections and elections of professional organisations.For certain types of cases, the court is required to sit in chambres reunites,[57] or chambre de conseil.[58] Decisions of the Court are taken by simple majority and selected decisions are published in the Official Gazette. Article 28 of the Ordinance 2007/012 requires that all the decisions be published in periodic bulletins.[59] Courts of Appeal
Article 29 of Ordinance 2007/006 makes it clear that the goal of the Mauritanian legislator is to progressively have one court of appeal in each of the 12 Wilayas while for the meantime envisaging a period where only one or a few more courts of Appeal may be contended with nationwide. At present, there are only three Courts of Appeal namely in Kiffa, Nouadhibou and Nouakchott. As such the territorial jurisdiction of these three courts extends beyond the Wilaya where they are located.As per Article 30 of the Ordinance, a court of appeal comprises of one or more civil and labour chambers; one or more commercial chambers; one administrative chamber and several criminal chambers one of which is earmarked for juveniles. These chambers hear appeals of decisions of courts of first instance falling under their specialisation. They sit in panel of three judges except in cases of appeals from the Criminal Court, where a panel of five judges is required. Courts of First Instance
Wilaya Courts: Wilaya Courts are established at the headquarters of each region. As per Articles 38- 41 of Ordinance 2007/006, the Wilaya court is competent on civil, administrative, penal (including juvenile justice) and commercial matters and is organised in chambers, constituted of a single judge, according to those specialisations. On administrative matters, the competence of Wilaya courts covers actions in damages against the state, public agencies and public corporations with the exception of damages caused by government cars; litigations relating to government tenders, administrative contracts and public work; and tax litigations.[60] The civil competence of the court covers actions irrespective of the amount of claims relating to registered real properties; insurance; aeroplanes, ships, land motorised vehicles; the right to nationality; indirect taxes; and social security litigation.[61] Lastly, the commercial competence of the court includes all commercial actions regardless of the amount of claims relating to the effects of commerce, commercial companies, bank operations, bankruptcy, and competition.[62] However, if a commercial court exists in the Wilaya, the commercial jurisdiction of the Wilaya court goes to that court.Commercial Courts: Article 46 of Ordinance 2007/006 provides for the progressive establishment of commercial Courts in each of the Wilayas. However, at present there exist only two commercial courts, namely in the capital district Nouakchott and in the second largest city, Nouadhibou. Commercial courts are competent on commercial matters listed under the Wilaya court (above) as regulated by the Code of Commerce (Law no. 2000-05 of 18 January 2000). The court sits in a panel of three judges.Labour Courts: Labour Courts are regulated by Article 49 of Ordinance 2007/006 and by Book V of the Labour Code (Law no.2004-017). They are located at headquarters of Wilayas. The court hears cases sitting in a panel of five, composed of a magistrate who is its president, two assessors representing employers, two assessors representing employees, and one expert in Labour Law who, however, does not have deliberative powers.[63] The material jurisdiction of the court is listed in Article 306 of the Labour Code and basically covers labour and social security related disputes. Procedures before labour courts are free and employees furthermore benefit of the free assistance of the court in the execution of decisions favourable to them.[64] A conciliation procedure before the Labour Inspectorate is mandatory before parties can submit their case to the labour court. Decisions of the labour court may be appealed before the Court of appeal. However, cases whose claims do not exceed 200,000 Ouguiyas cannot be appealed but can nevertheless be brought directly through a pouvoie en cassation before the Supreme Court.[65]Criminal Courts: Based at the headquarters of Wilayas, Criminal Courts are regulated by Articles 50-53 of Ordinance 2007/006 and by specific sections of the Criminal Procedure Code.[66] The court sits in a formation of three judges and two jurors.[67] The court is competent to hear all cases amounting to felonies (crimes) and misdemeanours (délits) submitted to it by the State counsel, the Investigative Magistrate (juge d’ instruction) or the Procureur general in flagrante delicto.Moughataa Courts: These are courts based at the headquarters of districts except in those headquarters of districts that are also headquarters of Wilayas.[68] The Moughataa Court consists of a single judge and has competence in all civil and commercial matters not falling within the competence of the Wilaya Court, notably matters relating to personal status, family, divorce, death and filiations. The Court hears in first and last resort all matters whose claims do not exceed 300,000 UM in capital and 30,000 UM in income. [69] In penal matters, the Moughataa Court’s competence is limited to simple offences (contraventions de simple police).[70]Informal/Customary Courts: Perhaps because Shari, which is akin to Mauritania’s customary law, has been made part of the formal legal system, the laws on judicial organisation are silent as to informal or customary mode of resolution of conflicts. It would however be illusory to think that all disputes in Mauritania are solved through formal courts. Given popular ignorance of laws and general reluctance to resort to formal a court,[71] there is little doubt that most disputes are resolved in informal/customary forums at family, village and clan levels according to Muslim customs.[72]Article 58 of Ordinance 2007/006 states that the Moughataa Court may use its conciliation powers to uphold amicable settlements, on matters within its competence, arrived at or out of court by the Mouslihs, that is, traditional Muslim adjudication authorities. It seems article 58 is the way through which the legislator seeks to give formal recognition to matters dealt with by informal/customary disputes resolution mechanism, particularly as the bulk of matters dealt with informally relates to personal status which is equally the prime competence of the Moughataa court.Legal and Judicial Transformative Efforts: The Government has improved the efficiency of the justice system by making justice more accessible through the establishment of courts, including a court of appeal in Aleg, two regional courts in Nouakchott Nord and Nouakchott Sud, a labour court in Zouerate and three specialized anti-slavery courts.[73]

2.2.3. Quasi-Judicial Bodies The Mediator of the Republic
Established by Law n°93.27 of 07 July 1993 and Decree n°94.82 of 28 August 1994, the Mediator of the Republic is the equivalent of the Ombudsman of Scandinavian countries.[74] He receives citizens’ complaints against abuses by state institutions (public administration, local governments, parastatals, and all institutions invested with a public service mission) that have remained unsolved. His duty consists in investigating these complaints and making recommendations to the Executive for these to be solved and, where necessary, suggesting disciplinary sanctions. He addresses an annual report of his activities to the President of the Republic and may be seized by the latter for advisory opinions on litigations between citizens and the administration. The National Human Rights Commission
The National Human Rights Commission was established on 12 July 2006. The Commission is an independent public institution having both administrative and financial autonomy. Its members including representatives of public institutions, professional bodies and the civil society as well as civil servants from ministerial departments are involved in human rights. The latter however do not have deliberative powers. Members of the Commission benefit of an immunity and in the exercise of their mission, they may hear any individual and obtain all information and documents necessary from all public authorities except otherwise provided by law. The missions of the Commission include to:

2.3. Judicial Training and Officials

Formal judicial independence is guaranteed by Article 89 of 1991 of the Constitution. A constitutional change was made in 2012, which provides for more autonomy for judges and attorneys.

2.3.1. Training

The main avenue for training of lawyers in Mauritania is the Faculty of Law and Economics of the University of Nouakchott which offers a four-year degree in Law (Maîtrise). There is also the Advanced Institute for Islamic Studies and Research (ISERI), which offers training in Shari. A Maîtrise in law or Sharia or equivalent degree is the basic academic qualification to be admitted as Magistrate (judge and state counsel), Barrister, Sherriff bailiff and public notary.

2.3.2. Judges

Judges are recruited through a competitive exam open to holders of any of the qualifications mentioned above. Successful candidates then undergo two years of theoretical and practical training at the National School of Administration. Upon graduation, they are appointed interim judges by a decree taken upon the proposal of the Minister of Justice and after consultation with the Higher Council of the Magistracy.[75] This Council is the main body in charge of guaranteeing the independence of Judges, although the strong inclusion of Executive members in its composition kind of waters down the independence and effectiveness of the Council itself.[76] Missions of the Council include overseeing the professional advancement of judges in the four grades into which the profession is divided and undertaking disciplinary actions against faulty judges.The appointment of judges in various positions of responsibility within a court is dependent on the principle of seniority. Article 5 of the Status of Magistrates states that a magistrate cannot have another magistrate older than him in grade under his authority. Article 17 of the 2007 Ordinance on Judicial organisation gives an idea on how this principle operates in practice: “The title of Vice President of the Supreme Court is attributed to the President of chambers who is the most senior in the highest grade, and in case of equality in grade and seniority, the most aged and at equal age, the most senior in the supreme court”. The Legal Department is constituted by magistrates who undergo the same training as judges. Unlike their colleagues of the bench, members of the legal department are more closely under the control of the Minister of Justice and do not depend on the Higher Council of the Magistracy. The Legal Department at the Supreme Court is headed by the Procureur General who is appointed by decree upon the proposal of the Minister of Justice. The Procureur General is responsible for the control and annual assessment of all members of the legal department nationwide. Professional advancement of members of the legal department is done based on that assessment and of the assessment carried out by the General Inspectorate of Judicial and Penitentiary Administration headed by the Minister of Justice.[77]The legal department at courts of appeal is constituted by a procurer general and his substitutes. At Wilaya courts, the legal department is headed by the state counsel (procureur de la republique) who is the most central authority in terms of public prosecution. Article 35 of the Criminal Procedure Code states that the state counsel receives denunciations, complaints, and investigation-reports of officers of the judicial police and decides on whether to prosecute. The state counsel and his substitutes equally represent the legal department before all other courts of first instance in their Wilaya. Some limited prosecution powers are bestowed on administrative heads of regions. Equal members of the judicial police form part of the legal department.An interesting authority in the prosecution and investigation phase of criminal offences is the Investigative Magistrate (juge d’instruction). He is an independent magistrate based at the Wilaya court who oversees preliminary investigations which are mandatory in all cases of felonies and optional in cases of misdemeanours. He is seized by the state counsel but may also be seized by a complaint with constitution of civil claimant (partie civile)[78] or at his own motion.[79] He has the power to issue all types of warrants and summons and to grant bail. He basically conducts a kind of pre-trial in chambers in which witnesses are heard and parties are allowed to be assisted by their counsels. At the end of this, he issues either an ordonnance de renvoi sending the accused for trial in court,[80] or an ordonnance de non-lieu (no case to answer) discharging the accused. His rulings including those on detention and bail may be appealed by the accused, the state counsel, and the civil claimant if any.

2.3.4. Barristers

Private legal practice in Mauritania is exercised by a single profession made of avocats or barristers.[81] All barristers are registered members of the Bar Association (Ordre national des avocats) which currently has some 264 members.[82] The organisation, functioning and admission to the Bar are regulated by Law no. 95-24 of 19 July 1995 as amended by Law no. 2005- 07 relating to the privileges of barristers. Article 3 of the 1995 Law states that Barristers have exclusive competence nationwide to postulate, assist, plead, defend, and represent parties in all matters before the courts and other jurisdictional and disciplinary bodies. As per Article 6, foreign barristers can equally represent clients before Mauritanian courts provided however that they are from a country that grants reciprocity to Mauritanian barristers, and that they give prior notice to the Bar President and to the counsel on other side (the state counsel in criminal cases), and finally that they elect residence in a local law chamber.To be called to the Bar, candidates must have successfully undertaken a three year pupillage in a law chamber under the control of the Bar Association and must in addition meet the following requirements: (i) be of Mauritanian nationality and in possession of all their civic and civil rights; (ii) be at least 24 years old; (iii) be a holder of a Maîtrise in Law or Sharia or equivalent degree; (iv) not having been the author of any act which gave rise to a criminal conviction or contravene probity and morality; (v) be the holder of a certificate of aptitude to practice as a barrister (certificat d’aptitude a la profession d’avocat) issued by the Higher Institute of Professional Studies. As an exception to the above, Ph.D. holders and professors of law who have three and two years of teaching experience, respectively. Magistrates with ten years of experience may be directly admitted into the Bar. The independence of the Bar is regulated by Law no. 95-24.

2.3.5. Sheriff Bailiffs

The profession of sheriff bailiff (huissier) is regulated by Law no. 97-048 of 15 July 1997. As per Article 6 of this law, the functions of sheriff bailiff include drafting and serving processes and writs (citation, signification, assignation, commandements and convocation), undertaking constats (that is, witnessing and writing on the spot a report, in the form of an affidavit, of a given situation that has occurred) and executing judicial decisions and auction sales. Sheriff’s bailiffs are appointed by the Minister of Justice upon a proposition of the procurer general of the Court of Appeal geographically competent.[83] The appointing decision grants them an ‘office’ (a charge), that is, a geographical area within which they are to establish their chambers and carry out their functions. They exercise their functions under the direct control of the local state counsel who verifies that the acts they issue are in conformity with the law and that the fees charged are lawful. The requirements for admission as a sheriff bailiff are similar to those of barristers with however a competitive exam in lieu of the pupillage and the certificate of aptitude and an age limitation of between 25 and 50. Barristers with five years of experience and court clerks with ten years of experience, or five years in case the latter holds the Maîtrise, may be appointed directly without having to undertake the exam. The Sheriff’s bailiffs are organised under a body called l’ Ordre des Huissiers de Mauritanie.

2.3.6. Public Notaries

Public notaries are regulated by Law no. 97-019 of 16 July 1997. Article 1 of this Law states that public notaries are public officers instituted to receive deeds for which the parties must or wish to give the authenticity character attached to deeds executed by public authorities, to guarantee the date, keep the original and deliver authenticated copies when necessary. The functions of the public notary therefore hinge around the drafting of what is typically called ‘actes authentiques’ which are documents having the greatest probative force.[84] Individuals may voluntarily resort to the public notary for any transaction which they wish to authenticate. However, Article 1(2) of law no. 97-019, states that certain deeds, to be enumerated by decree, are of the exclusive competence of public notaries.[85]The requirements to qualify as a public notary are similar to those of barristers. Candidates after qualifying as sworn assistant of the 1st category (assistant assermenté de 1ere categorie) must undertake a three-year pupillage in the chambers of a public notary. The appointment of public notaries is made by the Minister of Justice upon the proposal of a Selection Committee presided by himself and whose members include the President and Procurer general of the Court of Appeal of Nouakchott, the Director of the Public Treasury and the Dean of the Faculty of Law and Economics of the University of Nouakchott. Like sheriff bailiffs, the appointing decision of public notary grants them an ‘office’.The year 2011 saw some positive developments, relating to strengthening of the law and justice systems in Mauritania, through the development of a communication strategy and the introduction of more notaries and bailiffs.[86]

3. International and Regional Relations

Mauritania has an established international with several international and regional organizations, including other inter-governmental groups.

4. Developmental Efforts

4.1. Offshore Oil and Gas

Natural gas deposits were discovered by Kosmos Energy off the coast of Mauritania in 2014. Since, however, 19 offshore blocks remain open for negotiations and the government remains open to further development in this sector. To extract the gas from the Tortue natural gas field, BP has had built a floating liquified natural gas (FLNG) hub off the coast of Mauritania and Senegal. Given the FLNG hub, the offshore engineering equipment and services sector is rife with opportunity. The Mauritanian government would like to make the port city of Nouadhibou into a regional hub, which will require rehabilitation of the current oil storage capacity in Nouadhibou of 300,000 MT and would like to further expand the storage capacity of oil products in Nouakchott by 150,000 MT. The Mauritanian government is also seeking to expand their onshore oil and gas sector, specifically in the Taoudenni Basin. Further, The Mauritanian government currently has 15,000 kilometers of 2D seismic data for this basin and would like to build a refinery in country including expanding the petrochemical industry in Mauritania. See Mauritania – Country Commercial Guide: Oil & Gas, Trade.gov.

4.2. Offshore Renewable Energy

An oil & gas developer London listed Company Chariot has been granted exclusive rights to develop a green hydrogen project of up to 10 GW in Mauritania, that could include Africa’s first offshore wind farm. Chariot has been given exclusive development rights under Project Nour, to three massive zones: one offshore, stretching across about 160 km of Atlantic coast from the country’s northern border, and two in unpopulated desert regions. It is believed that Project Nour (through Mauritania’s world class solar and wind resources) has the potential to allow Mauritania to produce the most feasible green hydrogen in Africa, becoming one of the world’s main producers and exporters of green hydrogen and its derivative products. The offshore zone granted to the project has wind speeds of more than 10 metres per second, rivalling those in the North Sea, while solar insolation levels are among the highest in the world. See Jean Marie Takouleu, Mauritania: Chariot to produce and export green through Nour Project, Afrik21 (September 28, 2021).

5. Legislations

6. Online Sources

Country Sources International Sources

7. Selected Bibliography

[1] ‘Mauritania,’https://www.nationsonline.org/oneworld/mauritania.htm accessed 24 July 2022.

[2] ‘Mauritania,’https://www.nationsonline.org/oneworld/mauritania.htm accessed 24 July 2022.

[3] ‘Mauritania at 60’ at 5 available at https://scholarlypublications.universiteitleiden.nl/access/item%3A2906302/view accessed 25 July 2022.

[4] See the 1961 and 1965 Laws on judicial organization.

[5] See P Marchesin, ‘Juge modern et droit musulman : le cas de la Mauritanie’ 1990 156 (Special Issue) Afrique Contemporaine 261; See also Diop (n 1 above) Section 3: La justice post-coloniale.

[6] Laws such as the Penal Code, the Criminal Procedure Code, the Land Tenure Code, the Civil Commercial and Administrative Procedure Code and the Code of Contracts and Obligations were all redrafted in 1983-89 to include Sharia norms.

[7] Marchesin (n 10 above) 264 has an interesting discussion on the importance of both Sharia and French Civil Law influence on the Mauritania legal system, he concludes that: 'If therefore Sharia has officially become the “sole and unique source of the law” the persistence of the influence of the French law even on reforms linked to Islamisation gives to this recognition of Sharia, a symbolical and political connotation rather than a judicial one.’- the translation is ours.

[8] Article 5 of the 1991 Constitution. This unequivocally and constitutionally recognised the pre-eminence of Islam and Sharia was first introduced by the Constitution of 9 February 1985 whose preamble stated that: ‘Islam is the religion of the State and of the people. The only and unique source of law is the Islamic Sharia.’ - The translation is ours.

[9] Article 14 of Ordinance nº 2007/012 on Judicial Organisation.

[10] T Youssoufi, ‘Le personnel et les auxiliaires de la justice’ (1988) 4 Revue mauritanienne de droit et d’économie 26. Cited by Marchesin (n 10 above) 265.

[11] Marchesin (n 10 above) 265-266.

[12] Article 32 of Ordinance 86-103 of 1 July 1986.

[13] For a discussion of those rulings, see B Diop, ‘La reforme de la justice et la protection des droits de l''homme en Mauritanie’ (2007) unpublished master’s thesis, Université du Havre. Available at http://www.memoireonline.com/05/08/1082/m_reforme-justice-protection-droits-de-l-homme-mauritanie0.html Paragraphe 1 : Les juridictions de droit local (accessed 28 November 2016). Paragraphe 2: La cour supreme.

[14] See Articles 1 and 19 of Law nº 99-035 of 24 July 1999 on The Civil, Commercial and Administrative Procedure Code.

[15] MO Salah, ‘Quelques aspects de la réception du droit français en Mauritanie’ (1989) 5 Revue mauritanienne de droit et d’économie 25.

[16] R Grote and TJ Roder, ‘Constitutionalism, Human Rights and Islam after the Arab Spring’(2016) at 715.

[17] See Articles 306 - 309 of the Penal Code.

[18] Article 341 of Penal code.

[19] N 22 above. However, these punishments were only applied a short while after the reforms of 1980s and have since not been enforced in practice.

[20] http://www.theadvocatesforhumanrights.org/uploads/mauritania_hrc_dp_march_2015_2.pdf (accessed 25 November 2016).

[21] Articles 26-28 of the Constitution.

[22] Article 29 of the Constitution.

[23] Article 99 of the Constitution.

[24] Article 102 of the Constitution.

[25] Article 32 of the Constitution.

[26] These organic laws relate to: the presidential election and vacancy at the Presidency(article 26); the replacement of members of government for incompatibility (article 44); conditions of Eligibility, number and mandate of Members of Parliament (articles 48-51); finance (article 57); complement of the domain of exclusive competence of Parliament (article 57); the Constitutional Council (articles 82-88); the Magistracy (article 89); the High Court of Justice (article 92); and the Economic and Social Council (article 97).

[27] Article 80 of the Constitution.

[28] These subject areas are: ‘peace treaties, union treaties, commerce treaties, treaties or accords concerning an international organization, treaties which require the finances of the State, treaties which modify provisions of a legislative nature, treaties concerning the status of persons, and treaties concerning the borders of the State’.

[29] See for example articles 43-45 of the Constitution of Cameroon; articles 88-91 of the Senegal’s; and articles 114-116 of Mali’s.

[30] Other texts regulating the Constitutional Council are Decree nº92.041 of 21 August 1992 relating to the organization of the General Secretariat and the financial regime of the Council; and Internal Rules of Procedure of the Council.

[31] Article 14 of the Council’s organic law.

[32] Article 31 of the Council’s organic law.

[33] Article 87 of the Constitution.

[34] Article 17 of the Organic law of the Constitutional Council.

[35] Article 85 of the Constitution and articles 46-51 of the Organic Law.

[36] Articles 26-83 of the Constitution and article 30 of the Organic Law

[37] Articles 49-84 of the Constitution and articles 32 to 45 of the Organic Law.

[38] Article 33 of the Organic Law.

[39] Articles 59-62 of the Constitution. Also articles 24-29 of the Organic Law.

[40] Articles 40-41 of the Constitution. Article 31 of the Organic Law.

[41] Articles 39 of the Constitution and 52-54 of the Organic Law.

[42] BTI Mauritania Country Report 2022, BTI Transformation Index.

Other regulatory texts include Decree n°96-041 of 30 May 1996 determining the modalities of application of Law n° 93.19 and Law n° 93-20 of 20 January 1993 on the Status of Members of the Cour des Comptes.

[44] Other organs in charge of the control of finance include the State Inspectorate General and the General Inspectorate of Finance. Article 49 of the Ordinance 2007-006 requires these organs to submit their annual report to the Cour des Comptes.

[45] Articles 19- 20 of Law n° 93-20 of 20 January 1993.

[46] Article 10 of Ordinance2007-006.

[47] C Jourde ‘Mauritania’ (2007) Freedom House Countries at the Crossroad Report, 2. Available at https://freedomhouse.org/report/countries-crossroads/countries-crossroads-2007 (accessed on 28 November 2016).

[48] Article 11 of Ordinance2007-006.

[49] Articles 13 and 16 and Chapter V of Law n°93-19 of 26 January 1993.

[50] Article 42 of Law n°93-19 of 26 January 1993.

[51] Article 14 and 15 of Law n°93-19 of 26 January 1993.

[52] A Wilaya is a territorial administrative unit, a region. Mauritania is divided into 12 Wilayas plus the Capital District, Nouakchott. Wilayas are divided in districts called Moughataa.

[53] Article 11 of Ordinance nº 2007/012.

[54] These include decisions of labour courts and Moughataa courts on claims not exceeding respectively 200,000 and 300,000 Ouguiyas which are directly appealable before the Supreme Court.

[55] Article 12 of the 2007 Ordinance states that the Supreme Court may be requested to give its opinion by Government or individual members of government in respect of difficult legal issues related to the public administration.

[56] This uniqueness of the administrative chamber certainly springs from the importance of the distinction between administrative jurisdiction and civil jurisdiction which is a characteristic feature of the Civil Law system. In France, for example there exist two different branches of courts, namely civil courts at the top of which is the Cour de Cassation and administrative Courts at the top of which is the Conseil d’état; with even a third set of court called the Tribunal de conflits whose jurisdiction is to determine in conflicting cases whether a particular case falls under the civil or administrative jurisdiction. In Mauritania, the distinction civil/ administrative law equally exists but the two distinct branches of courts have not been established. Rather, administrative matters are treated by the administrative chamber’s existent in Wilaya Courts, Courts of Appeal and the Supreme Court.

[57] The Court is required to sit in Chambres reunies in order to hear the following cases: litigations relating to contradictory decisions rendered by one or more jurisdictions on the same matters between the same parties; cases launched by the Procureur General in the interest of the law when the parties did not appeal within the time limits; Appeals for revision of a death sentence; judgments which are appealed before the court for a second time; and for advisory opinions. When sitting in Chambres reunies the Court is composed of its president, presidents of chambers and counsellors. The quorum is met when at least the president, one president of chambers and two counsellors of each chamber are present. See Articles 21-22 of Ordinance 2007/006.

[58] In Chambre de conseil, the Court is composed of its President and presidents of chambers and hears cases of conflicts of competence between two or more jurisdictions and certain cases brought against Magistrates. See Article 23-24 of Ordinance 2007/006.

[59] It is however not sure if this publication is done in practice. Article 52 of the Law 99/039 on judicial organisation already prescribed publication of Supreme Court’s judgements in an annual bulletin but this was never executed in practice. Diop (n 1 above) Section 2: La modernisation de la justice et la promotion des modes alternatifs de règlement des different, states that this absence of law reporting has been one of the main impediments to the effectiveness of the Judiciary. An example of a recent SCA decision, see http://medafricatimes.com/11460-mauritania-supreme-court-adjourns-bloggers-apostasy-case.html.

[60] Article 25 of the 1999 Civil, Commercial and Administrative Procedure Code.

[61] Article 26 of the 1999 Civil, Commercial and Administrative Procedure Code.

[62] Article 27 of the 1999 Civil, Commercial and Administrative Procedure Code.

[63] Article 300 of 2004 Labour code.

[64] article 309 of 2004 Labour code.

[65] See articles 326-327 of the Labour Code.

[66] Book II of the 1984 Criminal Procedure Code.

[67] A list of ten citizens aged above 25, literate and capable of acting as jurors is established yearly for each region by the state counsel and the President of the Wilaya court and sent to the Procureur general of the Court of Appeal. Before a trial, the President of the Supreme Court upon proposal of the procureur general appoints from this list two jurors who may be recursed by the parties. See articles 219-229 of the Criminal Procedure Code.

[68] Article 54 of Ordinance 2007/006. Notwithstanding the exception, article 54 provides for a Moughataa court in each district of the capital city Nouakchott.

[69] Article 20 of the 1999 Civil, Commercial and Administrative Procedure Code.

[70] Article 54 of Ordinance 2007/006.

[71] Diop (n 19 above) Chapitre 1 : Les principes garantissant l'indépendance de la justice

[72] An expert opinion states that: ‘An important number of problems that occur among the populations are resolved amicably, under the supervision of the Jemâa (assembly of wise men and notables)’ see ‘Mauritanie, responses aux questions sur l’independence de la justice’: http://www.ahjucaf.org/spip.php?mot29 (accessed on 20 November 2016).

[73] ‘Common core document forming part of the reports of States parties, Mauritania HRI/CORE/MRT/2020 at Para 40 at 9 available at https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/CoreDocuments.aspx accessed 25 July 2022.

[74] For an analysis of the ombudsman institution worldwide see: the International Institute of Ombudsman at http://www.ombudsman.org.mt/the-international-ombudsman-institute/.

[75] Article 22 of Law n° 94.012 of 17 February 1994 on the Status of the Magistracy. See also Diop (n 19 above) Paragraphe 2: Le rôle du CSM.

[76] The President and vice president of the Higher Council of the Magistracy is respectively the President of the Republic and the Minister of Justice. Other members of the Council include the President, vice President and Procureur General of the Supreme Court, the General Inspector of the Judiciary and Penitentiary Administration and three Magistrates elected by their peers. See generally Diop (n 1 above) Chapitre 2 : Les facteurs garantissant l'indépendance de la justice.

[77] Article 10 of Ordinance 2007/006.

[78] Civil Law allows victims of criminal offences to attach a civil claim for damages to the criminal case prosecuted by the state rather than having to institute a whole new civil suit. A victim who institutes such a claim is called partie civile.

[79] Articles 41 and 71 of the Criminal Procedure Code.

[80] This may be the Criminal Court, the criminal chamber of the Wilaya court or the Moughataa court depending on whether the final charges retained qualify respectively as felony, misdemeanours or simple offences.

[81] There does not exist like in the United Kingdom the distinction barrister and solicitor or attorney and advocate like in South Africa or the avocats and avoués of France.

[82] See the Bar website at http://avocatmauritanie.com/cabinetoumar/index.php.

[83] Article 8 of Law no. 97-048.

[84] It is important to note that Civil Law distinguishes between actes sous seing privé and actes authentiques. The former are simply documents drafted privately by the parties while the latter are documents which the party had had drafted by an official authority which typically is the public notary and which carry the highest probative force. This distinction is important given the predominance of documentary proof in the Civil Law of Evidence.

[85] See Decree no. 99.130 of 06 November 1999 laying down the list of deeds which are of the exclusive competence of public notaries.

[86] Islamic Republic of Mauritania: Poverty Reduction Strategy Paper, International Monetary Fund. Middle East and Central Asia Dept. (2013) at 35 available at https://books.google.co.za/books?id=gbA4AAAAQBAJ&pg=PA35&lpg=PA35&dq=public+notaries+mauritania&source=bl&ots=y_hhErqFv8&sig=R0VKDv2hcN05kbqPMERZY0r3U4o&hl=en&sa=X&ved=0ahUKEwiyrsy3qc7QAhViBsAKHRA5CNcQ6AEIRzAJ#v=onepage&q=public%20notaries%20mauritania&f=false (accessed 29 November 2016).

[87] ‘Member States’ https://www.un.org/en/about-us/member-states#gotoM accessed 25 July 2022.