There are moments in the history of every nation when, claiming their freedom, the men and women who make up the heart of that nation unite in order to find a state, protect their rights, and make the rule of law sacred. Those brave people put down on paper their values, their sacred principles, and state their fundamental rights, which guarantee their freedom. This founding text is the Constitution of their State.
The first constitution of Cape Verde was adopted on 5 September 1980 and then revised several times. It is a text of emancipation, freedom, and courage. On 7 September 2021, however, 41 years later this sacred document of the Cape Verde people was been ripped to shreds as if it were just a common piece of paper, by the pen of the very people entrusted with its protection - the judges of the Constitutional Court of Cape Verde. The latter dismissed the appeal of Venezuelan diplomat Alex Saab against his extradition requested by the United States, in a long, indigestible and legally disputable ruling notified on September 7, 2021.
This ruling is a major moment in the constitutional history of this tiny African state because it symbolizes the sacrificial death of the rule of law so dearly acquired by Cape Verdeans, in the service of purely political interests according to an agenda dictated by Washington. This is constitutional suicide!
Extremely poorly written, poorly argued and legally incoherent, this judgment would make a law student blush. The instrumentalization of the law for political purposes requires a certain talent that seems to be lacking in Cape Verdean judges. In the absence of substantive arguments that could convince the reader otherwise, the judgment is presented in a confused and hermetic form and language. The result is legally deplorable.
The consequence of this ruling is to validate the purely arbitrary arrest of a foreign diplomat, deprived of all rights and guarantees, at the hands of Cape Verdean police officers. The details of the ruling will leave any reasonable jurist speechless as he or she sees, throughout this decision, human rights, judicial guarantees, the rights of the defence, the principle of diplomatic immunity, the principle of good faith in international law, and international law as a whole, deconstructed and annihilated by those who are obviously serving a political purpose.
The content of the judgment can be summarized in one word: "No"!
The Constitutional Court wanted to say "No" to all of Alex Saab's petitions. "No" to the arguments of unconstitutionality, "No" to Alex Saab's quest for justice, "No" to the ECOWAS Court of Justice which has since March 15, 2021, affirmed that the detention was arbitrary and ordered immediate release,
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“No” to the United Nations Human Rights Committee calling for the suspension of the extradition, “No” to diplomatic calls emanating from all sides and inviting Cape Verde to dialogue and respect international law. In other words, the Constitutional Court wanted to say “No” to human rights, to international law, to common sense, to the legal conscience, and to the values of justice and the rule of law.
This "No" is not legally founded and does not convince. No doubt the Constitutional Court will have played the political role that was required of it, but this political move required the sacrifice of the constitution.
In wanting to say "No" to Alex Saab, the Constitutional Court says "No" to the Constitution and buries it. “Worse than the sound of marching boots: the silence of slippers” wrote Max Frisch.
Finally, in ruling against Alex Saab the Constitutional Court also ruled against the Constitution of Cape Verde, against the Revised Treaty of the Economic Community of West African States and against International Law. Thus, the ruling has completely alienated Cape Verde from the community of civilised Nations.
FEMI FALANA, SAN, FCI Arb.