Répression ou protection déguisée ? Le paradoxe du nouveau projet sur l’article 319 (Par Abdourahmane MAÏGA)
Strengthening the new provisions of Article 319 of the Penal Code by including prosecutions for slanderous denunciation — punishable by imprisonment of one to three years — might, at first glance, appear as a strengthening of repression.
But on closer inspection, might it not be more accurately described as an indirect mechanism for protecting people prosecuted for homosexuality?
Indeed, by explicitly providing for prosecution against anyone who denounces an individual without being able to provide proof, the initiator of the project establishes a veritable sword of Damocles over any potential whistleblower.
However, everyone knows that proving an intimate relationship is a particularly delicate, even practically impossible, exercise, like adultery, which is recognized as a legal cause for divorce but notoriously difficult to establish in our positive law.
The former Article 319 made no provision whatsoever for specifically sanctioning those who denounced acts deemed "unnatural." Prosecution for slanderous denunciation fell under common law and generally required a complaint from the person who felt wronged.
Why then explicitly introduce this charge in the new draft?
This insertion is not neutral. It profoundly alters the balance of the criminal justice system. From now on, the absence of evidence could be enough to expose the whistleblower to criminal prosecution (1 to 3 years in prison), without even requiring a prior complaint from the person targeted.
In other words, the legal risk shifts:
It is no longer just the accused person who faces punishment, but also the accuser.
Maintaining the criminal nature of the act: a significant choice
Another revealing element: the continued classification of homosexuality as a misdemeanor but not a felony.
But the distinction is not insignificant.
In matters of tort:
The public prosecutor retains discretionary power regarding the appropriateness of prosecution.
REFERRAL TO AN INVESTIGATING JUDGE IS NOT MANDATORY.
When the investigating judge is seized of the matter, he is bound by relatively strict investigation deadlines.
In criminal matters, however:
INSTRUCTION IS MANDATORY.
The competent jurisdictions and the procedural regime are more RESTRICTIVE.
The judge is not subject to the same time limitations.
If the real objective was to "strengthen" the repression, the logic would have been the outright criminalization of the offence, like rape, drug trafficking, cattle rustling or murder, offences for which the investigation is mandatory and the procedural regime is much more rigorous.
The choice to maintain the offence at the level of a misdemeanor, while inserting increased criminal protection against denunciations, therefore raises questions about the coherence of the announced repressive architecture.
A shift in criminal risk
Ultimately, the new bill seems to establish a paradoxical mechanism:
The accused persons remain punishable;
But those who make rash accusations or are unable to provide evidence now risk up to three years in prison, regardless of whether a complaint has been filed beforehand.
Whereas the old law only exposed whistleblowers to the common law of slanderous denunciation — generally triggered by the alleged victim — the new system introduces a potential automaticity of prosecution.
Therefore, one question remains:
Is this really a hardening of the repression of homosexuality?
ABDOURAHMANE MAÏGA ,
lawyer, member of the inner circle of the Republic of Values
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