A recent decision of the Constitutional Court, decision DCC 20-457 of 14 May 2020, recalls the prohibition of any acquisition of property belonging to the public domain by members of the executive branch.

Receipt of a request dated in Cotonou on 19 February 2020 registered at its secretariat on 20 February 2020 under number 0525/269/REC-20, by which Mr Victorien KOUGBLENOU, in his capacity as Director General of the Agence nationale du Domaine et du Foncier, filed an appeal for the unconstitutionality of real estate sales for the benefit of Mrs Chantal de SOUZA, wife of IDOHOU; and after deliberation, the Constitutional Court of Benin presided by Professor Joseph DJOGBENOU recalled in its decision DCC 20-457 of 14 May 2020, the clauses of withdrawal that relate to property belonging to the public domain.

The facts
On reading the facts submitted to the sovereign judgment of the constitutional court, Mrs Chantal de SOUZA, wife of IDOHOU, who was in charge of the financial and economic affairs of the President of the Republic, obtained from the Ministry of Finance and the Economy, sales by direct agreement for two (02) land situated in Cotonou and each with an area of one (01) hectare, whereas the land was the property of the Beninese State and endowed with land title no. 6402. In spite of this, the then Minister of Economy and Finance had ordered the fragmentation, then proceeded to the transfer of the land to Mrs.Chantal de SOUZA wife IDOHOU who was in charge of mission and responsible for the financial and economic affairs of the President of the Republic.

Indeed, it has been reported that, from the moment of her appointment, Mrs Chantal de SOUZA, wife of IDOHOU, asked the Minister of Finance and Economy, on 02 April 2004, to grant a plot of two (02) hectares with land title No. 6402 of Cotonou, which were sold and then resulted in the creation of two separate land titles numbers 7174 and 7177, no longer on behalf of the African Union Women’s Association for which the land was intended, but of L. Chantal de SOUZA wife IDOHOU and Laure J. de SOUZA respectively, who designate the one and the same person.

The Constitutional Judge’s Recall and Decision
The constitutional judge recalled several provisions relating to the preservation of the public heritage of the State.

A violation of Article 52 paragraph 1 of the Constitution
The Court recalls the first paragraph of Article 52 of the Constitution which provides that “During their term of office, the President of the Republic and the members of the Government may not buy or lease anything belonging to the domain of the State by themselves or through an intermediary, without the prior authorization of the Constitutional Court…”. The Court explains that, for the purposes of this provision, the term «members of the Government» must not be understood only by the ministers of the Republic but also by any person who closely participates in the exercise of the executive function of the State. It can therefore be considered that advisers, members of cabinets and other senior officials working with the Government are also concerned by this provision.

Violation of Article 35 of the Constitution
The Court also recalls Article 35 of the Constitution which provides that: “Citizens entrusted with a public service or elected to a political office have a duty to carry it out with conscience, competence, probity, dedication and loyalty in the interest and respect of the common good”. It notes that Mrs Chantal L. de SOUZA, the wife of IDOHOU, failed to fulfil the duties prescribed by this provision and violated the Constitution by taking advantage of her position at the top of the State to solicit and obtain on her behalf, the allocation of parcels within the private domain of the State, on the pretext that this domain should be used for the construction of the headquarters of an international public interest association.

Violation of Article 37 of the Constitution
Public goods are sacred and inviolable. Every citizen of Benin must respect them scrupulously and protect them. Any act of sabotage, vandalism, corruption, misappropriation, dilapidation or illicit enrichment shall be punished under the conditions provided by law.” This provision is repeated by the constitutional judge to note the obvious misappropriation that emerges from the case. But the constitutional judge will take care to raise the inadmissibility of the application to declare formally as reprehensible the acts which threaten the inviolability of public property, since no court of the judicial order has yet concluded to this end.