UPDATE: A Brief Overview of the Togolese Legal System

By Thérèse Akouvi DONU

Thérèse DONU, an attorney at law at the Togo Bar Association and a founder of Therese Donu Law Firm, got the Certificate of Admission to the Bar in 2011. She holds a Master's degree in International and Comparative Environmental Law from the University of Limoges (France) and a Certificate in International and Comparative Law issued jointly by the Justus-Liebig University of Giessen in Germany, the University of Wisconsin–Madison, and Marquette University. She assists local and international clients in OHADA business law, debt recovery, projects finance (infrastructures and energy) and labor law. She also advises in litigation proceedings. Thérèse DONU founds a law firm based in Lomé, after twelve years of practice. She speaks French and English and is learning Chinese.

NOTE: Access the French version of this article.
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Publié Janvier/Février 2022 | Published January/February 2022

(Précédemment mis à jour par Martial Akakpo et Emmanuel Mamlan en Juillet/Août 2017)

(Previously updated by Martial Akakpo and Emmanuel Mamlan in July/August 2017)

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The Togolese legal system is based on a multitude of national and community provisions organizing relations between individuals and between individuals and the State. From Romano-Germanic origin, Togolese law is largely impacted by French law, from which it draws most of its texts, some of which, dating from the colonial era, remain to this day the texts applicable in the Togolese Republic. This is the case in civil matters, of the French Civil Code in its version updated on May 1, 1956. This is the major text organizing in Togo, contracts except those of a commercial nature which remain subject to OHADA law, obligations, property except for real estate benefiting from a special regime set by the Land and Property Code updated in 2018.

As Togo has acceded to the various community legal instruments, they are an intrinsic part of its positive law and their incorrect application may expose the authors to prosecution before national courts and, in some cases, community courts. Access to these texts is made possible or at least easy, thanks to publications made through periodical newspapers, reviews, newsletters and legal collections and even on official websites of the Government or other institutions.

An overview of the Togolese legal system makes it possible to identify the various texts applicable at the national level and in the community space to which Togo is a part of. But, for the proper implementation of these various texts, mastery of the judicial environment is necessary. The purpose of this development is to present an overview of the main provisions in force in the Togolese Republic (I), the judicial organization in place (II) as well as some publications on legal matters (III).

1. The Main Provisions in Force in Togo

The texts defining the Togolese legal framework are community and national texts.

1.1. Community Texts

Several community institutions, of which Togo is a member, have enacted texts that are part of the Togolese legal system in commercial, economic and monetary matters as well as in insurance and intellectual property matters.

1.1.1. The Uniform Acts of the Organization for the Harmonization of Business Law in Africa (OHADA)

Within the framework of the harmonization and unification of their legislative devices, seventeen (17) African States signed, on October 17, 1993 in Port Louis (Mauritius), a Treaty aiming at creating a legal arsenal resulting from their various texts. These are Benin, Burkina-Faso, Cameroon, Comoros, Congo Brazzaville, Democratic Republic of Congo, Ivory Coast, Gabon, Guinea Conakry, Guinea-Bissau, Equatorial Guinea, Mali, Niger, Central African Republic, Senegal, Chad and Togo. As part of the implementation of the said Treaty, nine uniform acts, some of which, like the Treaty, which have already been revised, have come into being in various sectors of business law. These are:

It should be noted that the adoption of the Uniform Act on simplified debt recovery and enforcement procedures repealed Law No. 88-02 of April 20, 1988 establishing a simplified procedure for the recovery of civil and commercial debts in Togo.

1.1.2. Some Texts of the West African Economic and Monetary Union (WAEMU)

The West African Economic and Monetary Union is an organization created by the West African States, including Togo, with a view to achieving the economic integration of the Member States by strengthening the competitiveness of economic activities focused in a competitive market. These states are Benin, Burkina Faso, Ivory Coast, Guinea-Bissau, Mali, Niger, Senegal and Togo. It was created by the Treaty signed in Dakar on January 10, 1994. The directives and regulations issued by this organization relate to tax and customs matters, public procurement, banking law and financial regulation and competition law. Here are some major texts:

1.1.3. Some Provisions of the Economic Community of West African States (ECOWAS)

The Economic Community of West African States (ECOWAS) is a West African intergovernmental organization created on May 28, 1975 mainly to promote cooperation and integration with the objective of creating a regional economic integration zone. ECOWAS currently has fifteen (15) Member States, namely Benin, Burkina Faso, Cape Verde, Ivory Coast, Gambia, Ghana, Guinea Conakry, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

Among the resolutions, recommendations, regulations and directives issued in various fields by ECOWAS, we can note:

1.1.4. The Texts Issued by the Inter-African Conference on Insurance Markets (CIMA)

The Inter-African Conference of Insurance Markets (CIMA), located in Libreville (Gabon), was created in July 1992 by a treaty bringing together 14 African States with a view to adopting a single insurance code for the 14 States of Benin, Burkina Faso, Cameroon, Central African Republic, Congo, Ivory Coast, Gabon, Guinea-Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad and Togo. This Code should set the conditions for subscribing to an insurance policy, the rules of the insurance contract and those applicable to insurers, reinsurers and insurance intermediaries. The CIMA Code is annexed to this treaty, as well as various texts that have modified the Treaty. These texts are:

1.1.5. The Texts of the African Intellectual Property Organization (OAPI)

The African Intellectual Property Organization (OAPI) is an intergovernmental organization that currently groups eighteen (18) African States, responsible for the uniform protection of intellectual property rights in the territories of each of the Member States. Industrial property as well as literary and artistic property are governed by the provisions of the Agreement revising the Bangui Agreement of March 2, 1977 and its Annexes. This Agreement organizes the functioning of OAPI and specifies the content of the uniform legislation. It has been ratified by the following states:

1.2. National Texts

In addition to the community provisions, Togolese positive law is strongly marked by the Constitution and by various texts enacted in several areas of law, namely civil law and personal status, criminal law, investment law, land law, social law, health and environmental law, tax and customs law, transport law and telecommunications law.

1.2.1. Civil and Personal Status

The Togolese Constitution: As a fundamental law establishing the organization and functioning of the State, the Togolese Constitution of the Fourth Republic was adopted by referendum on September 27, 1992, promulgated on October 14, 1992 and revised by law n ° 2002-029 of December 31 2002. It devotes to the Togolese State, the statute of a secular, democratic and social State, governed by the rule of law, ensuring and guaranteeing to its citizens the respect of fundamental human rights, public freedoms and the dignity of the human person. It creates a democratic and pluralist State marked both by a strong legislative power and a President of the Republic elected by universal suffrage. The previous Constitutions are:

The Civil Code: The Civil Code in force in Togo is that of the colonial era. It is therefore the French Civil Code in its version updated on May 1, 1956. It deals, among other things, with contracts, property and obligations between persons under private law.

The Code of Civil Procedure: The Code of Civil Procedure enacts the rules applicable before the courts of the judicial order, civil, commercial, social, without prejudice to the texts specific to each of these matters. It was created in Togo after independence, by decree No. 82-50 of March 15, 1982 establishing the Code of Civil Procedure. It has been amended and completed by various decrees. Since April 21, 2021, Togo has a new Code. This is Law No. 2021-007 of April 21, 2021 on the Code of Civil Procedure (Publication made in the JO of April 21, 2021, 66th Year No. 19 bis).

The Personal and Family Code: The new personal and family Code results from the law N ° 2012-014 of July 6, 2012 whose articles 99, 100, 153, 403, 404; 419 and 420 were subsequently amended by Law No. 2014-019 of November 17, 2014. These texts modify and repeal in its contrary provisions, Ordinance No. 80-16 of January 31, 1980 relating to the Personal and Family Code. The Personal and Family Code organizes the name, domicile, absence and disappearance, marriage, filiation, parental authority, legal disabilities, matrimonial regimes, inheritances, donations as well as the situation foreigners and the conflict of laws.

The Children's Code: In Togolese positive law, the individual rights and freedoms of children are guaranteed by Law No. 2007-017 of July 6, 2007 on the Children's Code. This text defines a child as any human being under the age of eighteen (18) years.

The Nationality Code: The rules organizing, among other things, the acquisition, attribution, loss and forfeiture of nationality are provided for by Ordinance No. 78-34 of September 7, 1978 establishing the Togolese Nationality Code. This Ordinance was amended by Ordinance No. 80-27 of October 8, 1980. This Code is strongly criticized for reducing the capacity of women. Thus, a male foreigner cannot, in the current state of the law, acquire Togolese nationality through marriage. Changes have been expected for a few years now.

1.2.2. Criminal

The New Criminal Code: The new Togolese criminal Code was instituted by Law No. 2015-010 of November 24, 2015. It was amended by Law No. 2016-027 of October 11, 2016. The new Togolese criminal Code deals with different categories of offenses, criminal liability, alternatives to criminal prosecution, penalties and security measures.

The Code of Criminal Procedure: The criminal procedure is organized by the law n ° 83-1 of March 2, 1983. It defines the exercise of the public action, the rules governing a criminal trial, the authorities in charge of the public action and the application of penalties.

1.2.3. Contracts and Investments

The Public Procurement Code: There are various texts applicable to public procurement including:

The Investment Code: The promotion and protection of investment in Togo are ensured by the provisions of Law No. 2019-005 of June 17, 2019 on the Investment Code in the Togolese Republic. This Code deals with guarantees and dispute settlements, the body in charge of the administration of the investment code and the industrial free zone, the conditions of eligibility for incentive measures for the development of investments, the investment approval, the nature and benefits granted and the obligations and sanctions of the companies. This new law repealed that No. 2012-001 of January 20, 2012 on the Investment Code.

The Law Establishing the Status of the Industrial Free Zone: The Togolese Free Trade Zone was created by Law No. 89-14 of September 18, 1989. It provides a favorable framework for export-oriented activities. This is the case for agricultural, industrial and service activities using local labor. It also offers a liberal framework guaranteeing the best competitive conditions and simplifying formalities for investors.

The Société d'Administration de la Zone Franche (SAZOF), was created in 1994 to manage the activities of the free zone. The Togolese Free Zone is governed since 2011 by a new law, Law No. 2011-018 of June 24, 2011, on the status of an industrial free zone. The new law is more attractive and offers exporting companies the best conditions for doing business in West Africa. The Togo Free Zone currently has 71 active companies and 25 companies in the process of being set up, spread over various sectors: food, agro-food, plastic, pharmaceutical, metal, horticulture, clothing and synthetic hair, cosmetics and services.

1.2.4. Land

The Land Code: The land ownership system in Togo is provided for by the land decree of July 24, 1906 and modified by decree n ° 66-186 of October 29, 1966. Also applicable are Law n ° 60-26 of August 5, 1960 relating to the protection of the land ownership of Togolese citizens (completed by law n ° 61-2 of January 11, 1961) as well as ordinance n ° 12 of February 6, 1974 (amended by ordinance n ° 77-25 of August 16 1977). In 2018, a new Land Code was created. It is the result of Law No. 2018-005 of June 14, 2018 on the Land and State Code.

In terms of residential leases, it should be noted that on January 5, 2022, Decree No. 2022-001 was issued to regulate the deposit, the rental guarantee and the residential lease. The purpose of this decree is to regulate in Togo the setting of the amount of the deposit and the guarantee of rent and to set the procedures relating to the housing lease.

The Urban Planning Code: An urban planning Code is in the process of being considered.

1.2.5. Social

The Labor Code: The Labor Code organizes the texts applicable to labor law. Thus, labor relations are governed by the provisions of Law No. 2021-012 of June 18, 2021 on the Labor Code in the Togolese Republic. This text organizes the protection of employees’ rights and freedoms, individual labor relations, working conditions, social protection and labor disputes among others.

The Social Security Code: Law No. 2011-006 of February 21, 2011 on the social security code in Togo, defines the provisions governing the general compulsory social security system in Togo. The general social security system includes branches of family and maternity benefits, pensions, occupational risks and all other branches that may be created subsequently by law.

Interprofessional Collective Agreement of Togo: This agreement regulates labor relationship between employers and workers, in all companies operating throughout the territory of the Togolese Republic. The collective agreement organizes the work contract, working conditions, health and safety at work and the settlement of labor disputes, among others.

Sectoral Collective Agreements: These agreements apply to companies in different activities. This is the case of the collective trade agreement, the collective transport agreement, the collective agreement for banks and financial institutions, the mining agreement, the collective agreement for the free zone, the collective agreement for the Togo's oil industry.

1.2.6. Health, Environment and Industry

Public Health Code: Law No. 2009-007 of May 15, 2009 on the Public Health Code of the Togolese Republic, defines the rights and duties inherent in the protection and promotion of the health of people. It organizes the prevention and control of major endemic diseases, the fight against certain social scourges and defines specific health measures.

The Mining Code: In the area of mining, law n ° 2003-012 of October 14, 2003 modified and supplemented the provisions of law n ° 96-004 of February 26, 1996 on the mining code. To date, there is a new draft Mining Code which has not yet been adopted.

The Environmental Code: The general legal framework for environmental management is set in Togo by Law No. 2008-005 of May 30, 2008 which establishes a framework law on the environment. Law n ° 2009-001 on the prevention of biotechnological risks is also applicable. This law defines the fundamental principles of environmental law, organizes the national environmental policy, sets out the environmental management and protection measures, defines the environmental protection measures and provides some provisions in the event of violation of the terms of the law.

The Forestry Code: Law No. 2008-009 of June 19, 2008 relating to the forestry code in Togo, aims to define and harmonize the rules for the management of forest resources for the purposes of a balance of ecosystems and the sustainability of the forest resources. The Forestry Code defines the forest regime, the wildlife regime, participation in the development of forest resources and provides some provisions on the organization and repression of infringements.

The Water Code: It is Law No. 2010-004 of June 14, 2010 on the Water Code sets the general legal framework and the basic principles of integrated water resources management in Togo. It determines the fundamental principles and rules applicable to the allocation, protection and management of water resources. The Water Code organizes the legal regime of water, water work and hydraulic structures, the regime for the protection of water, the various uses of water, the harmful effects of water, defines the institutional framework for planning and cooperation, the financing system and organizes the water police, research and recording of offenses.

1.2.7. Taxation and Customs

The General Tax Code: The General Tax Code of Togo stems from law n ° 83-22 of December 30, 1983, amended and supplemented each year by the finance law. In 2018, Law No. 2018-024 of November 20, 2018 on the General Tax Code and Law No. 2018-025 of November 20, 2018 relating to the book of tax procedures were adopted.

The Customs Code: A new customs code is instituted in the Togolese Republic by Law No. 2018-007 of June 25, 2018. The new Customs Code recalls the general principles, defines the organization and functioning of the customs administration, the conduct, the presentation and placing of goods under customs control, customs clearance operations, suspensive customs regimes temporary export-pre-export, customs deposit, privileged operations, movement and detention of goods within the customs territory, navigation, the various taxes collected by the customs administration, organizes litigation, the right of appeal and settlement of customs disputes as well as the repression of offenses against foreign exchange legislation.

1.2.8. Road, Sea and Air

The Highway Code: The law on the Highway Code was adopted on June 4, 2013. It organizes the recording of offenses, the conditions of use of the roads open to traffic, the behavior of the driver and provides for various provisions.

The Merchant Marine Code: The Merchant Marine Code is derived from Law No. 2016-028 of October 11, 2016 and replaces the provisions of Ordinance No. 29 of August 12, 1971 on the Merchant Marine Code. It provides for the organization of maritime administration, maritime navigation, maritime areas under national jurisdiction, the status of the ship, navigation and security titles, organizes maritime privileges and mortgages, seizure of ships, maritime navigation, classification societies, accidents and incidents at sea, organization of the situation of seafarers, social security for seafarers, seafarers' medicine, crew delegates and union leaders, maritime transport and the auxiliary professions, the commercial operation of the ship, as well as the rules organizing the prevention of pollution, the special provisions applicable to seaports, controls and civil liability and obligation of insurance of the shipowner for damage due pollution by oil transported as cargo.

The Civil Aviation Code: In Togo, civil aviation is governed by the provisions of Law No. 2007-007 of January 22, 2007 on the Civil Aviation Code. This text governs the registration, nationality and ownership of aircraft, movement of aircraft, damages and liabilities as well as criminal provisions, protection of aerodromes, air transport and work companies, civil aviation workers contracts, flight workers among others.

1.2.9. Communication, Telecommunications and Intellectual Property

The Press Code: The exercise of the right of communication, the status of the journalist and the ethics of journalism are governed by law n ° 2004-015 of August 27, 2004, amending law n ° 98-004 of February 11, 1998 relating to the press and the communication, which was itself amended by law n ° 2000-06 of February 23, 2000 and by law n ° 2002-026 of September 25, 2002.

Electronic Communications Act: The provisions of law n ° 2012-018 of December 17, 2012, on electronic communications, some of whose provisions were amended by law n ° 2013-003 of February 19, 2013, as well as by law n ° 2017-007 of 22 / 06/2017 relating to electronic transactions, are applicable. This law applies to electronic transactions and electronic services, including:

Personal Data Protection Law: In Togo, the collection, processing, transmission, storage, use and protection of personal data are organized by Law No. 2019-014 of October 29, 2019, on the protection of personal data. It guarantees that any processing of personal data does not infringe the fundamental rights and freedoms of individuals.

Law on the Protection of Copyright, Folklore and Related Rights: In addition to the revised Bangui Agreement, Law No. 91-12 of June 10, 1991, on the protection of copyright, folklore and related rights applies literary and artistic property matters.

2. The Judicial Organization

This is an overview of the main jurisdictions that contribute to the law enforcement, as well as the mechanisms for its dissemination and publication.

2.1. The Code of Judicial Organization

The judicial organization is governed in Togo by Law No. 2019-015 of October 30, 2019, on the Code of judicial organization. In addition to recalling the general principles of a fair trial, the new law organizes the courts and their functioning. Thus, a distinction is made between ordinary courts and specialized ones.

2.1.1. Common Law Courts

The ordinary courts are the Supreme Court, the Courts of Appeal and the Criminal Appeal Courts as well as the High courts and the Criminal Courts. The highest court of the Republic is the Supreme Court. Its attributions, its organization and its functioning are defined by the organic law N ° 97-05 of March 6, 1997, on the organization and functioning of the Supreme Court. It hears, among other things, cassation appeals against decisions rendered in the last resort by civil, commercial, criminal and administrative courts. It includes a judicial chamber and an administrative chamber. There is only one Supreme Court in Togo.

Courts of appeal are substantive courts. They hear appeals against judgments rendered by the Courts. They include several chambers, in particular a civil chamber, one or more commercial chambers, one or more social chambers, one or more pre-trial chambers, one or more administrative chambers, one or more correctional chambers, a special chamber for minors, an investigating chamber, a chamber for the enforcement of sentences and summary proceedings. As regards the criminal courts of appeal, they are formed on the occasion of appeals against judgments rendered by criminal courts.

As regards the Courts, they are ordinary judges in criminal, civil and administrative matters. There are now with the advent of the new law on the organization of the judiciary, high courts, criminal courts, district courts with correctional and civil jurisdiction and courts with civil jurisdiction. The High Courts include, depending on the requirements of the service, one or more civil chambers, one or more correctional chambers, a penalty enforcement chamber and one or more administrative chambers. The Criminal Courts are permanent units of the High court and have jurisdiction over all offenses classified as crimes within the meaning of the criminal Code. Regarding the Magistrates' Courts with correctional and civil jurisdiction, they include within them a correctional chamber and a civil chamber. The Court with civil jurisdiction is the common law judge in civil matters.

2.1.2. Specialized Courts

The specialized courts are the Labor Courts, Commercial Courts, Juvenile courts, the Military Court and the Military Court of Appeal. Currently in Togo, with regard to the labor court, only the Lomé Labor Court is operational.

2.2. The Law Establishing Commercial Courts in the Togolese Republic

Commercial courts were created by Law No. 2018-028 of December 10, 2018, establishing commercial courts in the Togolese Republic. These commercial courts were originally made up of the commercial chambers of courts and courts of appeal. Later in 2019, the Commercial Courts of Lomé and Kara were created by decree No. 2019-020 / PR of 06 February 2019 creating the Commercial Courts of Lomé and Kara. In 2020, the law establishing commercial courts was amended by Law N ° 2020-002 of January 07, 2020, amending Law N ° 2018-028 of December 10, 2018 establishing commercial courts in the Togolese Republic.

3. Publications

Among the publications, we can mention the Official Journal and the various legal journals. We can add legal information websites as well as publishing houses.

3.1. The Journal Officiel de la Republique Togolaise

The Journal Officiel de la République Togolaise publishes in its official part the acts of the Government, namely laws, ordinances, decrees, orders, decisions and in its unofficial part the receipts of declarations of associations, announcements, communications and opinions. The Journal Officiel de la République Togolaise appears on the 1st and 16th of each month and is published by Imprimerie EDITOGO.

La Revue Togolaise des Sciences Juridiques: La Revue Togolaise des Sciences Juridiques (RTSJ) is a biannual journal published by the Faculty of Law of the University of Lomé (TOGO).

Les Mercuriales Infos: Les Mercuriales Infos, a Togolese business law and arbitration journal, is published quarterly by the Law Firm MARTIAL AKAKPO & ASSOCIES.

La Revue Africaine de Droit, d’Economie et de Développement: La Revue Africaine de Droit, d’Economie et de Développement is an insurance, banking and stock exchange, transport and development review of the CIMA-OHADA area and is initiated by a Togolese individual.

Reflets du Palais: Reflets du Palais is a monthly newsletter of the Court of Appeal of Lomé.

Bulletin des arrêts de la Cour Suprême du Togo: This review is devoted to the judgments of the judicial chamber of the Supreme Court.

Recuil de Droit Fiscal du Togo: The Recueil de Droit Fiscal du Togo 2013 edition is published by the Nouvelles Editions Numériques Africaines (NENA). This collection is a CD-ROM comprising the General Tax Code and its application texts, tax treaties as well as WAEMU directives and regulations on tax matters.

Recueil Fiscal: Recueil Fiscal is a collection of the General Tax Code, conventions and application texts published by the Cabinet INTER CONSEIL SERVICES.

Information and Legal Notices Websites: For online searches of legal texts and for announcements and legal and administrative information, refer to the following vernacular language sites:

3.3. Publishing Houses and Bookstores

Among the publishing houses available in Togo, we can mention a few:

EDITOGO Printing Press: It was legally created by Law No. 61-36 of 23 November 1961 in the form of a public industrial and commercial establishment. It will later be transformed into a State Company within the framework of the economic liberalization policy of the 1990s by Law N ° 90-26 of December 4, 1990 establishing a new legal and institutional framework for public enterprises and its implementing decree N ° 91-086 / PRMT of October 23, 1991.

Graines de Pensées Editions: This publishing house was created in 2005 and is a member of the International Alliance of Independent Publishers. It specializes in general literature and national languages.

AGO MEDIA Editions: It is an emanation of cartoonists and writers from Togo working for the youth and in comics.

AWOUDY Editions: It is created in January 2009 and is specialized in general literature and in school and extracurricular works.

CONTINENTS Editions: The publishing house was officially created on April 18, 2016, by a journalist-writer and aims to promote Togolese, African and other literature.

AGAU Editions: It is a publishing house officially declared in 2017. It publishes books on general literature, sentimental literature, suspense, mysteries / investigations, collections of short stories.

With regard to bookstores, reference may be made, among others, to: