Ismaïla Madior Fall trial: heated exchanges over electronic tagging before the substantive hearing; defense obtains postponement

Former Justice Minister Ismaïla Madior Fall, facing charges of alleged corruption, appeared before the High Court of Justice on Tuesday, July 21. The hearing was presided over by Judge Mouhamadou Mansour Mbaye.

At the opening of the session, the President of the Court noted the absence of one of the full members of the court, Member of Parliament Alioune Ndao. In accordance with procedure, he drew lots to select a replacement from among the alternate members whose names had been placed in a ballot box. The list included, among others, Samba Dank, Oulimata Sidibé, El Hadji Ababacar Tambédou, Fatou Binetou Cissé, Mouramani Kaba Diakité, Marie Hélène Ndoffène Diouf, Mayabé Mbaye, and Fatou Sow. Following the drawing of lots, Fatou Binetou Cissé was chosen to serve on the Court. The merits of the case have not yet been debated.

The president was about to read the committal order when the defense asked to speak, raising what it called the "arbitrary detention" of its client. The lawyers requested the immediate removal of the electronic bracelet imposed on the former minister as part of his judicial supervision.

Speaking on behalf of the court, Mr. Ciré Clédor Ly argued that his client should appear in court as a free man. "He is appearing in court while detained. This is arbitrary detention," he declared, citing in particular Article 7-3 of the Constitution concerning the principle of liberty, as well as Article 138-4 on house arrest with electronic monitoring. According to him, this measure cannot exceed one year, and that period has now been exceeded. "The principles of liberty have not been respected by the investigating judges. There is a clear illegality. I demand that the bracelet be removed immediately," Mr. Clédor Ly pleaded.

His colleague, Mr. Mbaye Guèye, for his part, contested the status of the individuals called to testify. According to him, Cheikh Guèye and Mouhamed El Anas Wone, who are to be heard by the Court, cannot be considered mere witnesses since they are themselves the subject of proceedings before the Pikine-Guédiawaye court. "They have implicated Mr. Ismaïla Madior Fall. They are not witnesses," he argued.

For his part, lawyer El Hadji Amadou Sall also denounced a violation of the rules governing deprivation of liberty. According to him, maintaining the electronic bracelet disregards applicable legal and constitutional provisions.

The prosecution's response and heated tensions in the courtroom

The public prosecutor's office is represented by Attorney General Jean-Louis Paul Toupane, assisted by First Advocate General Samba Faye and Advocate General Ciré Aly Ndiaye.

Responding to the arguments raised by the defense, Jean-Louis Paul Toupane considered these questions premature. "The Court has not yet read the document. I think the defense should have waited before raising this," he stated.

In turn, Ciré Aly Ndiaye relied on Article 21 of the law establishing the High Court of Justice. He pointed out that the contested decision did not originate solely from the chairman of the investigating committee, but from all of its members. Regarding Article 138-4 invoked by the defense, he acknowledged that house arrest with an electronic tag is limited to one year in correctional matters, but specified that the investigating committee had issued its ruling before the expiration of this period. "In reality, these arguments don't hold water," he asserted.

First Advocate General Samba Faye added that this issue had already been brought before the summary proceedings court. According to him, the applicable provisions regarding electronic tagging are those of Article 138, while the rules relating to pretrial detention fall under a different legal framework.

Taking the floor again, Jean-Louis Paul Toupane reacted sharply to the defense's arguments. "The texts are clear. Let's not waste time. To say that your client is being arbitrarily detained is an insult to those who conducted the investigation. It's cowardly," he declared.

This statement sparked a heated exchange in court between the prosecution and the defense attorneys. Attorney Mbaye Guèye immediately protested, exclaiming, "Don't call us cowards!" Attorney Ciré Clédor Ly added, "That's an insult to the defense lawyers." Faced with the escalating tension, the presiding judge decided to suspend the session. When proceedings resumed, the atmosphere calmed. Attorney Mbaye Guèye apologized to the Attorney General, and the court accepted his apology. Jean-Louis Paul Toupane commended the Bar Association president's stance while also apologizing for having raised his voice. This gesture was also welcomed by Attorney Moustapha Mbaye.

Battle over the request to postpone the trial

Speaking next, Mr. Cheikh Amadou Ndiaye paid tribute to the Attorney General, recalling that it was he who had entrusted him with his first case as a lawyer in Saint-Louis in 1996. Returning to the case, he specified that the defense had not yet raised any procedural objections, but wished to draw the Court's attention to what it considered an anomaly concerning the duration of the electronic bracelet. He indicated that the defense had appealed to the Constitutional Council, whose request had been rejected, and then to the Supreme Court in summary proceedings, with the same result. According to him, the legal duration of wearing the electronic bracelet expired on May 22nd.

Attorney Clédor Ly countered by pointing out that, before the Supreme Court, the public prosecutor's office had not opposed the removal of the electronic bracelet. Jean-Louis Paul Toupane reminded the court that the decision adopted by all members of the investigating committee was included in the case file. "The law applies to everyone," he declared. Attorney Amadou Sall, for his part, raised the issue of his client's situation again: "The law states that one cannot wear an electronic bracelet for more than a year," he maintained.

President Mbaye then stated that the Court had met to rule on the entire case, thus deciding to join the procedural incident to the merits.

Spontaneously, Mr. Ciré Clédor Ly requested a postponement of the trial from the bar. “We are asking for a reasonable amount of time to prepare the defense. We are not asking for a postponement to some distant date. A week is enough for us to argue the case,” he stated. Mr. Mbaye Guèye supported this request: “You are not judging a criminal. You are judging one of the most eminent law professors, who drafted the Constitution of Senegal. You are judging someone who doesn't know what is happening to him. We need to prepare our client psychologically. I therefore insist that the trial of Ismaïla Madior Fall not be rushed. Especially since some of the defense lawyers are not present,” the president of the bar association argued.

Attorney Moustapha Mbaye stated, “We received the case file three days ago. To ensure a balanced hearing, we are requesting a postponement.” Attorney El Hadji Amadou Sall emphasized that this was the first time the High Court of Justice had convened. Attorney Abdoul Hamid Ndiaye argued that the case deserved more thorough attention, as it is a trial with significant international follow-up.

The intervention of Ismaïla Madior Fall and the opposition of the Public Prosecutor's Office

The president of the court then gave the floor to former minister Ismaïla Madior Fall. "After Mamadou Dia, I have the privilege of being tried for the first time before the High Court of Justice. I accept it. It is destiny. But I support the request of my lawyers so that we can familiarize ourselves with this jurisdiction," he declared.

Making his observations on the request for adjournment, Attorney General Jean-Louis Paul Toupane expressed his initial surprise at the defendant's lawyers' approach. "We all know that a request for adjournment must be made before submitting observations. Secondly, I want to set the record straight. I have no comments to make on the Assembly's resolution. As you can see, we have not yet filed a final indictment," he said. The Attorney General continued: "The defense claims it is unaware of the case file. Yet, you have filed three briefs. And if you say you are not sufficiently prepared, we are on equal footing. I have received no advantage. I retrieved the file on Saturday, here at the police station, around noon," he revealed before concluding: "The text clearly states that the adjournment decision must be served on you eight days before the trial. So don't tell us there is some illegality between the parties." The request for adjournment was made following a request to remove the electronic bracelet, which was added to the case file. I find this request to be belated. I would point out that the judicial recess begins in a week.

Attorney Mbaye Guèye responded: “We have no complaints against the prosecution. But Ismaïla’s life is at stake. Since Mamadou Dia’s conviction, the court has not convened. You are a privileged party. You are not defending anyone but society. The Code of Criminal Procedure allows us to request three adjournments. A request for adjournment can be made at any time.” Attorney Cheikh Amadou Ndiaye, in turn, supported the request for adjournment, which he considers justified on two grounds. “We requested an adjournment for eight days to better defend our client. Requesting an adjournment is a matter of judicial courtesy.”

“If we had requested a postponement before raising the issue of the electronic bracelet, Mr. Ismaïla Madior Fall would have left this hearing in the same situation. That is why we raised the issue of the electronic bracelet first. I reiterate the request for a postponement,” stated Mr. Cheikh Amadou Ndiaye.

Attorney Clédor Ly requested that the referral motion be put to a vote. Prosecutor General Jean-Louis Paul Toupane then spoke again: “On September 25, 2025, the defense filed its observations. Since then, the only action taken has been the referral to the trial court. This is a matter of judicial administration. A vote cannot be held,” he argued.

Finally granting the defense's request, the Court ordered the trial to be adjourned until July 28.