Senegal

Published in 2024

Legal sources

Executive summary

Although Senegal has ratified the United Nations Convention and the African Union Convention against Corruption, which provide tools to combat this phenomenon, including in favor of whistleblowers, the country has not yet adopted a specific law to protect them.

Furthermore, despite several legislative provisions and control bodies to combat corruption, their effectiveness seems limited regarding the few investigations, prosecutions, and convictions related to this offense.

Finally, regarding freedom of expression, press freedom, and media rights, Senegal, once considered a model in West Africa, has experienced some setbacks in recent years. Thus, Senegal is faced with the challenge of restoring its exemplary position by implementing all necessary measures to ensure the safety of journalists and facilitate the exercise of their profession.

Laws and measures related to whistleblowers

➢ Absence of specific provisions regarding whistleblower protection in domestic law

Senegal ratified the United Nations Convention against Corruption on December 14, 2005, which underscores the need to establish effective protection against retaliation, intimidation, and threats to witnesses, victims, or experts. The country also ratified the African Union Convention on Preventing and Combating Corruption on February 15, 2007. Under these treaties, Senegal should adopt legislative measures to protect whistleblowers against retaliation, but the country currently lacks any specific legislation in this regard.

More generally, and before the adoption of a specific law on whistleblower protection, provisions in the criminal procedure code could effectively contribute to the protection of key witnesses, allowing for their deposition/testimony in anonymity, etc. These provisions are contemplated within a draft law prepared by the Ministry of Justice and transmitted to the head of Government. Furthermore, Senegal is also considering a draft law on whistleblowers that is currently being developed at OFNAC with the support of PPLAAF.

At this stage, in the absence of specific provisions adopted in Senegal, provisions regarding professional secrecy apply: secrecy is protected but not opposable to judicial authorities, thus allowing employees or key witnesses to testify before the authorities (see below).

The Preamble of the Senegalese Constitution affirms the attachment of the “Sovereign People of Senegal (…) to transparency in the conduct and management of public affairs as well as to the principle of good governance,” yet this does not translate into concrete measures for whistleblowers in domestic law. Thus, Law No. 65-60 of July 21, 1965, establishing the Penal Code, contains no provisions for protecting these actors but condemns “the revelation of secrets.” In this regard, Article 363 stipulates that healthcare personnel and “any other persons entrusted, by status, profession, or temporary or permanent functions, with secrets entrusted to them, who, except where the law obliges or authorizes them to act as whistleblowers, have disclosed these secrets, shall be punished by imprisonment for one to six months and a fine of 50,000 to 300,000 francs CFA (…).”

Article 363 further specifies that “professional secrecy is never opposable to the judge for the needs of investigations (…), to judicial police officers and to agents of the General Directorate of Taxes and Domains acting within the framework of preliminary investigations conducted on written instructions from the Special Prosecutor at the Court of Repression of Illicit Enrichment (…).” The same code sanctions perjury under Articles 355 to 359 and slanderous accusation under Article 362.

According to the same approach, Law No. 97-17 of December 1, 1997, establishing the Labor Code, in its Article L.56 specifies that “dismissals made without legitimate reasons, as well as dismissals motivated by the opinions of the worker, their trade union activity, their membership or non-membership in a specific union, in particular, are abusive.” This provision indirectly protects any whistleblower, like any employee, from abusive dismissal sanctions that would be in response to the disclosure of information.

➢ Law No. 2012-30 of December 28, 2012, establishing the National Office for the Fight against Fraud and Corruption (OFNAC)

Law No. 2012-30 of December 28, 2012, established the National Office for the Fight against Fraud and Corruption (OFNAC). It is an independent administrative authority with the objectives of preventing and combating fraud, corruption, related practices, and associated offenses in order to promote integrity and probity in the management of public affairs (Article 2). OFNAC’s mission includes “collecting, analyzing, and making available to the judicial authorities responsible for prosecutions information relating to the detection and repression of acts of corruption, fraud, and related practices committed by any person exercising a public or private function” as well as “receiving complaints from individuals or legal entities relating to acts of corruption, related practices, or connected offenses” (Article 3). OFNAC may, for the performance of its missions: “hear any person presumed to have taken part in the commission of one of the acts provided for by law” and “collect any testimony, information, or document useful, without professional secrecy being able to be opposed to it.”

In its 2021 activity report, the Complaints Office of OFNAC reported receiving a total of 100 complaints and denunciations, bringing the total number of complaints recorded since the creation of OFNAC to 1750. In 2021, 90 orders to open investigations were signed by the President and notified to the Investigation Department for execution. Anonymous complaints accounted for 35% of complaints in 2021, which is 5 points higher than the previous year (30.23%).

➢ Law No. 2012-22 of December 27, 2012, establishing the Code of Transparency in Public Finances Management

In accordance with Law No. 2012-22 of December 27, 2012, establishing the Code of Transparency in Public Financial Management, public offcials are required to report violations of the law to the judicial authorities. Article 7.3 of this law specifies that sanctions, in accordance with the principles of the rule of law, are provided against any person, whether elected or public official, who violates the rules regarding the use of public funds, and that “failure to report to the justice system any violation of these rules by a public official who has become aware of it is criminally sanctioned.” However, there is currently no legal mechanism in place to protect public officials against potential workplace reprisals or civil and/or criminal proceedings in response to such potential disclosures.

Knowledge, support and action centers

The Platform to Protect Whistleblowers in Africa (PPLAAF) has a representative office in Dakar, Senegal called « Maison de l’Alerte ».It is a central hub and a privileged space for African whistleblowers, as well as for individuals and organizations involved in raising awareness about whistleblowing. Maison de l’Alerte also serves as a platform for discussions on democratic issues, the fight against corruption, and money laundering. It is also a meeting place for a wide variety of stakeholders who can act as a citizen shield for whistleblowers.

In Senegal, PPLAAF has identified a significant deficit in the understanding of the concept of whistleblowing among the population and professionals. This was evidenced by a recent awareness training session on the concept of whistleblowing conducted by PPLAAF and Expertise France as part of the OCWAR-M project, funded by the European Union, and intended for the Senegalese Bar Association. During a training session for lawyers in this country, held in February 2022, PPLAAF realized that even for these professionals, the concept of whistleblowing remains poorly understood. Therefore, urgent action is needed in this regard.

Contact:

Jimmy KANDE, West Africa and Francophone Director

Phone: +221 76 565 92 18

Email: jimmy@pplaaf.org

Address: Building located at No. 102 Cité Téranga 2 Mermoz-Pyrotechnie or Cité Keur Gorgui (2nd floor), Dakar, Senegal

Forum Civil is the Senegalese section of Transparency International. This NGO aims to contribute to the improvement of the legal, regulatory, and institutional framework for fighting corruption. It works with populations to strengthen their capacities, cooperates with the state and its bodies, particularly on proposed laws, and organizes awareness-raising and advocacy activities for the improvement of public governance.

The 3D NGO is an organization that works for the promotion of human rights, local development, democracy, and good governance. Regarding the democracy and good governance component, the NGO has the following missions:

To promote open governance at the national and local levels,
To contribute to equitable and rational management of natural and financial resources,
And to contribute to the quantitative and qualitative participation of citizens in elections and to better management of electoral processes.

The Afrikajom Center was founded in 2018 by Alioune Tine. It is a regional center for training, research, and a think tank that envisions the construction of a fairer and more equitable world. The Afrikajom Center places the promotion of good governance and the challenges of peace and security at the center of its actions.

Publiez ce que vous payez (PCQVP) is a coalition of civil society organizations whose objective is to make the extractive sector more transparent and accountable, so that the revenues from the oil, gas, and mining industries contribute to improving the living conditions of populations in resource-rich countries.