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À Monsieur le premier Président de la Cour Suprême
Il y’a seulement quelques semaines, vous êtes intervenu par communiqué de presse pour déplorer le fait qu’il était, de façon répétée, porté atteinte au crédit de la justice.
Pour montrer que de tels agissements étaient mal fondés, vous avez rappelé que dans l’exercice de son métier, le magistrat porte en bandoulière le serment qui lui fait obligation de toujours agir dans le cadre de la Constitution et de la loi.
En appui à vos propos, vous avez cité Montesquieu, disant que « les magistrats incarnent la puissance de juger ». La référence à une telle citation montre la haute conception que vous avez de la profession.
Et ceci avait fait naître l’espoir d’un retour à « une bonne justice », surtout qu’il ne fait point de doute, qu’en l’espèce, Montesquieu, auteur de « L’esprit des rois », ne parle pas de cette puissance mécanique instinctive, antinomique à l’idée de justice, mais plutôt, de la puissance décrite dans la philosophie d’Aristote, qui se manifeste par des vertus cardinales telles la tempérance, la force d’âme, la sagesse, la justice etc.
Mais, voilà que survient une affaire dans laquelle un autre leader représentatif de l’opposition est mis en cause.
Or, les emprisonnements de Karim Wade et de Khalifa Sall auxquels se sont ajoutées la suppression des mairies de villes qui aura pour conséquence immédiate d’empêcher aux maires concernés de disposer d’un budget pouvant leur permettre d’acquérir un certain poids politique grâce aux aides et à l’assistance qu’ils apportent aux populations (c’est le syndrome Khalifa Sall), l’instauration du parrainage, l’annihilation du calendrier républicain, avaient fini d’installer dans l’opinion l’idée, vraie ou fausse, selon laquelle le régime en place chercherait à transformer la démocratie sénégalaise qui avait permis la survenue de deux alternances dans l’enthousiasme, en un régime politique sans perspective d’alternance démocratique.
Par ailleurs, sont venus se greffer à tout cela, le cas des 94 milliards que même un juge français aurait considéré comme la dénonciation d’une atteinte grave à l’intérêt vital de la nation; et le cas du député APR qui a publiquement et à plusieurs reprises appelé les membres de son groupe ethnique à commettre des actes constitutifs de crime contre l’humanité, dont les effets auraient provoqué la dislocation de la nation et la disparition de l’état.
Cette situation qui est considérée par les uns comme une injustice, par les autres comme une forme de tyrannie et pour d’autres encore comme un manichéisme d’état, a provoqué l’amoncellement de stimuli de troubles graves.
Toutefois, il n’empêche qu’en tant que citoyens, Ousmane Sonko et Adji Sarr doivent pouvoir jouir de tous leurs droits.
Cependant, pour éviter que cette affaire devienne « un élément déclencheur », il faudra que le principe de légalité, les droits de la défense et la présomption d’innocence qui sont d’ordre constitutionnel et universel soient respectés à l’égard de chacun d’eux.
L’article 320 du code pénal définit le viol comme étant « tout acte de pénétration sexuelle, de quelque nature qu’il soit, commis sur la personne d’autrui par violence, contrainte, menace ou surprise ».
Dès lors, il est établi que selon la loi, l’élément matériel du crime de viol n’est caractérisé que si l’auteur réalise l’acte de pénétration sexuelle sur la personne de la victime par violence, contrainte, menace, surprise. L’on ne peut donc pas fonder la culpabilité d’un mis en cause sur la base d’une présomption de faits ou d’une suspicion. Par ailleurs, la présence de sperme prouvant qu’il y’a eu pénétration sexuelle ne caractérise nullement le crime de viol, étant entendu que le fait ne constitue pas en soi une infraction. De plus, une jurisprudence constante estime qu’une simple déclaration même venant d’une personne crédible, ne suffit pas pour caractériser le crime de viol.
S’agissant de l’affaire qui nous préoccupe, il serait équitable de l’examiner à un double niveau : au niveau des éléments susceptibles de permettre la levée de l’immunité parlementaire de Sonko, et au niveau des éléments accusatoires.
Concernant la levée de l’immunité parlementaire, Mr Seybani Sougou, en a éloquemment montré le caractère illégal dans un article publié sur la toile. Il faudrait simplement ajouter que si le Procureur de la République a demandé au juge d’instruire contre X, c’est parce qu’il s’est conformé aux dispositions du code de procédure pénale. Car, pour enclencher une procédure pénale, il faut impérativement qu’il y ait un ou des faits préalablement caractérisés par rapport à la loi pénale, en d’autres termes, il faut qu’il y ait un fait délictuel ou criminel.
Or, dans l’affaire Sonko, les officiers de police judiciaire de la section de recherche n’ont constaté aucun fait délictuel ou criminel dont l’effectivité est irréfutable, ce qui leur a fait écrire dans leurs conclusions qu’il y avait trop de contradictions dans cette affaire. Il reste à affirmer que si le Ministre de la Justice a modifié le réquisitoire introductif du procureur, par une soustraction ou un rajout, il aura outrepassé ses attributions pour tomber dans l’illégalité.
Quand à la teneur des procès-verbaux d’enquête publiés par les médias, il est noté une atteinte grave aux droits de la défense, dans la mesure où jusque là, la procédure privilégie ostensiblement la piste du viol en se fondant seulement sur les déclarations faites par la plaignante et par Sidy Ahmed Mbaye soupçonné par la défense d’être l’un des commanditaires. Pendant ce temps, il existe un faisceau d’indices graves et concordants qui affectent d’un fort quotient la probabilité d’une machination. Pour corroborer cette assertion, il suffirait d’en citer quelques exemples comme le fait pour Sonko d’avoir demandé d’être masser par deux personnes, ce qui veut dire qu’en allant à ce salon de massage, il n’était animé d’aucune intention criminelle parce qu’il avait le loisir de se faire masser par une seule personne, en l’occurrence Adji Sarr. Ensuite, il y a l’agitation de Adji Sarr décrite par ses employeurs en ces termes : « ces derniers jours nous avons remarqué une certaine agitation de Adji qui n’arrêtait pas de demander où se trouvait Ousmane Sonko et de dire qu’il fallait l’appeler parce qu’il se faisait rare ». De plus, il y a que Adji Sarr a tenté de suborner la deuxième masseuse pour qu’elle ne témoigne pas; le fait est constitutif d’un délit.
Il est donc souhaitable que l’enquête soit équilibrée pour être équitable, parce qu’en l’espèce, il relève des droits d’Ousmane Sonko de demander d’entreprendre des investigations plus larges aux fins, par exemple, de retrouver le véhicule noir, d’identifier et d’entendre tous les occupants, de rechercher et d’auditionner l’avocat qui aurait mis en rapport Adji Sarr et le médecin qu’il faudrait lui même entendre.
Dans la mesure où l’existence d’un complot ferait tomber la thèse du viol, le fait de ne pas faire mener une enquête approfondie dans ce sens constituerait une atteinte aux droits de la défense, surtout qu’il existe à ce propos un faisceau d’indices graves et concordants.
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