Under the impetus of recently adopted legislative texts, the law on the fight against corruption in Benin from
2011 is now stripped of one of the innovations that made its strength until now: the severity of its
repressive regime. This is one of the major findings of a study carried out in September as part of the Project
strengthening of CSOs in the detection and denunciation of corruption (2D Corruption) implemented
by ALCRER in association with FONAC thanks to the support of the RePaSOC program (11th EDF).
In the penal code adopted in 2018, generally milder penalties were enacted against the
corruption and other related offences. Admittedly, the code does not modify the prison sentences for the
active and passive corruption but it reduces the amount of the minimum fine which is now 200
000 FCFA against 1 million in the 2011 law. On the other hand, the maximum prison sentence for
conflict of interest is reduced to 2 years from 5 years previously. Similarly, influence peddling, an offense
related to corruption, is now punishable by a minimum prison term of 2 years whereas it was
5 years in the law on the fight against corruption. Illicit enrichment, i.e. the situation of an agent
public which cannot justify the lawful origin of its heritage by its income legitimately received in
the exercise of his functions, is punishable by the code from one to 5 years against 5 to 10 years by the law of 2011.
The study cited about fifteen cases where the legislator was lenient in reducing imprisonment or
the fine. This "legislative variation" is not only observable between the new penal code and
the law of 2011. The same is true between the latter and the law on money laundering adopted in 2018:
imprisonment for money laundering which was 10 to 20 years in the 2011 law is reduced
in the range of 3 to 7 years.
Similarly, the penal code was expected to confirm the imprescriptibility of the crimes of corruption affirmed in
Article 21 of the law on the fight against corruption. Law No. 2019-1l of February 25, 2019 strengthening
legal and judicial of public governance which remains the first national legislative text to characterize
economic crime, has not recalled this major principle at the heart, until now, of the policy
anti-corruption criminal law of Benin.
Special laws derogate from general laws
The authors of the study point out that the "leniency" resulting from this "last will of the legislator"
is all the more formal since the new penal code, in its articles 1000 and 1008, has repealed all
previous provisions to the contrary. In practice, judges will naturally tend to apply the
the mildest sentences, i.e. to make more use of the penal code than of the law of 2011
clearly threatened with disuse.
Faced with this situation of divergence between the texts in the repression of corruption and the facts
assimilated, what should be done? The study proposes two simple and obvious alternatives: or amend the law
n°2011-20 to comply with the penalties of the new penal code, or groom the latter to return to the
quanta of 2011. A third alternative is mentioned by the study to allow the law of 2011 to
retain one's "citizenship" despite the provisions of the new penal code: recourse to the Latin rule
''specialia generalibus derogant'' (special laws derogate from general laws). Under this rule,
“when two legal frameworks can apply to a situation (here corruption), one specific (law of
2011) and the other general (penal code of 2018), it is the specific framework that must be applied”. But in fact,
in a context where part of the public considers that the penalties of the 2011 law were too high and
concretely inapplicable, it is unlikely that judges will remember this rule.
The civil society organizations that met on September 3, 2019 to validate the report of
the study, denounced the new penalties as a "defeatist step backwards" by the legislator and called for the penalties provided for in the 2011 law to be maintained as part of the review process of the said law
envisaged by the National Anti-Corruption Authority and the Ministry responsible for justice.
Apart from the contradictions between the penal code, the law on money laundering and the law on corruption, other
shortcomings were identified by the study. The declaration of assets and the declaration of interests are
weakly framed. For example, the delay in the declaration of assets is not punishable for
all subject persons. The 2011 law itself leaves inconsistencies in terms of
sanction, giving the impression that there are second or lesser corruption offenses
nuisance: for example, embezzlement is punished less (1 to 5 years) than active or passive corruption (5 to
10 years). The law also includes references to legislative texts that have already been repealed (or are in the process of being repealed).
The study proposes that these references be “refreshed or even corrected”.
The choice of an anti-corruption code
Based on the findings, recommendations were made to improve the legal framework for combating
against corruption. In addition to correcting the contradictions noted between the texts, the study called for the
consecration, in the new frame of the law on the fight against corruption, of certain concepts or
principles such as: the notion of economic offense or offense of an economic nature; the concept of fault
management as a corruption-related offence; the obligation to prosecute acts of corruption and the
right for anti-corruption associations to take legal action and bring civil proceedings in
corruption trials.
Criticizing the scattering, among more than fifteen texts, of the provisions which frame the fight against
corruption, the study suggested the codification technique consisting of "grouping all the scattered texts into
a single code on the fight against corruption and other related offences”. According to the authors of
the study, "this option has the advantage of better erasing the internal contradictions of the current normative framework
scattered in several texts and to offer a more harmonious and easier to read regulation for the judge and the
justiciable”.
These various recommendations were discussed by the CSOs who adopted them. In
joint declaration which was given to the Minister in charge of justice and to the representative of the President of
the National Assembly on November 22, they called for "the establishment of a criminal policy
national where corruption will be subject to specific treatment commensurate with its particular harmfulness to
the future of the nation”.
The establishment of a specific law on the fight against corruption is a recommendation of the
main international and regional conventions (UN and AU) to which Benin is a party. That
adopted in 2011 has the merit of having put in place a comprehensive regime comprising both
prevention, detection, prosecution and assessment of corruption.