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Cablegate: Subject: Senegal: Lenient Sentence for Ruling Party Arsonist

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RR RUEHMA RUEHPA
DE RUEHDK #0224 0421756
ZNR UUUUU ZZH
R 111755Z FEB 10
FM AMEMBASSY DAKAR
TO RUEHC/SECSTATE WASHDC 0069
INFO ECOWAS COLLECTIVE

UNCLAS DAKAR 000224

SENSITIVE
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E.O. 12958: N/A
TAGS: PGOV PREL KDEM PINR SG
SUBJECT: SUBJECT: Senegal: lenient sentence for ruling party arsonist

1. SUMMARY: On February 3, the Regional Court of Thies condemned
Mouhamadou Lamine Massaly, a ruling party youth leader, to
six-month in prison. Massaly had confessed to a journalist and a
Police chief in Thies that he was the instigator of arson during a
Socialist Party (PS) rally on January 17, 2010. The PS, knowing
that ruling party leaders generally enjoy immunity in cases of
political violence, tried to have him indicted for arson, a felony,
but the prosecutor chose a charge of destruction of private
property which carries a much more a lenient sentence. This time,
however, effective communication by the media forced the government
to prosecute the case to avoid the appearance of official
involvement in or approval of Massaly's actions. End Summary.

Twisting the prosecutor's arm

-----------------------------

2. Mouhamadou Lamine Massaly is leader of the "Jeunesse Wadist"
(young supporters of President Abdoulaye Wade) in the city of
Thies. To show his loyalty to President Wade he tried to derail
the PS's rally in Thies on January 17 by setting fire to the PS's
tent. To make sure that he got credit for what he thought would be
a bold action, he called both the local police chief and a
journalist to claim that he was the instigator of the arson. When
the information was made public the police interrogated him but he
was set free; a clear indication to many that the PDS was not
planning to have him face justice. The PS then filed a complaint
directly with the Investigative Judge of Thies ("Juge
d'Instruction") asking him to open a case into the arson. Knowing
that the judge, by law, has to open an investigation, the
Government bypassed him by ordering the Prosecutor of Thies to
carry out a swift prosecution to stymie the extensive power of an
Investigative Judge who is independent from the Executive branch.
By moving first the Prosecutor, who receives his instructions from
the Minister of Justice, was in a position to decide which charges
to bring and which sentence to seek before the Court. The effect
of moving faster than the Investigative Judge was also to
neutralize the latter, since the same crime can only be prosecuted
by one criminal jurisdiction.

Orchestrated court case

-----------------------

3. If Massaly had been prosecuted for arson, he could have been
sentenced to life imprisonment (Article 406 of the Criminal Code).
But the head of the Thies Court, made a narrow interpretation of
criminal law finding that since only the fabric covering the stand
where people were sitting was burnt that the conditions for an
arson as enumerated in Article 406 had not been met as Article 406
refers specifically to the burning of homes, aircraft, cars, ships,
shops and construction sites. Consequently, he was charged with
destruction of property, an act punishable under Article 98 of the
Criminal Code with a sentence of one to five years imprisonment.
The prosecutor then requested a sentence of one year imprisonment,
six months suspended. The Court finally sentenced Massaly to two
year imprisonment, but he will only remain in jail for six months
as the remaining one and half year of his sentence was suspended.
Massaly's attorneys said that while they were satisfied that their
client had not been charged with a felony they would still appeal
as they maintain that no clear evidence was ever shown that he was,
in fact, the instigator of the attack.

4. COMMENT: Senegal has a long history of political violence both
against the opposition and internally within a ruling party. It is
widely believed that as a result of this history of impunity for
political acts of violence in support of the ruling party Massaly
felt he risked little by attacking the PS rally. Therefore,
Massaly's imprisonment, albeit with the lukewarm consent of the
government, as well as the call by religious leaders for
non-violence are encouraging signs. That being said the potential
for violence in the run up to the 2012 presidential election
remains high as the ruling elite knows that they have much to lose
in the event that Wade does not win the election. END COMMENT.
BERNICAT

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