Exceptions to the rule (2/2) January 27, 2026

The presumption of innocence is a bedrock of the judicial system, but there are cases where it is not applicable. It is the reversal of the burden of proof which is required as well as within the framework of customs law.

A fundamental principle of criminal law, the presumption of innocence contains exceptions. Among these, there is the reversal of the burden of proof. Here, it will be up to the person accused to provide proof of their innocence.

Indeed, in customs matters, the principle of the presumption of innocence is widely called into question. The applicable legal regime is, in practice, based more on a presumption of guilt. This situation is explained by certain provisions of the Customs Code which reverse the burden of proof. Indeed, the perpetrators of offenses can be identified even before they are committed in order to speed up procedures and limit the time it takes for customs agents to find those responsible.

The observation is that, unlike the presumption of innocence which protects individuals against arbitrariness and judicial errors, customs law establishes a logic of presumption of guilt. For example, article 268 of the old law n°87-47 of December 28, 1987 relating to the Customs Code of Senegal, entitled “Proof of non-infringement”, provided: “In any action for the repression of a customs offense resulting either from a report or from a seizure, proof of non-infringement is the responsibility of the accused”. This provision infringed the principle of presumption of innocence by requiring the defendant, prosecuted for a customs offense, to provide proof of his innocence.

Read also: Presumption of innocence: A principle of law in question (1/2)

The 2014 Customs Code, in its article 350, uses a similar logic by providing: “In any action to suppress a customs offense resulting from a seizure, proof of non-infringement is the responsibility of the seized person”. This reversal of the burden of proof constitutes a direct attack on the principle of presumption of innocence. It requires the person accused to demonstrate their innocence, which often proves difficult, if not impossible, due to procedural constraints and the limited resources available to them with the customs administration.

Thus, it clearly appears that the Senegalese Customs Code, despite the advances introduced by the 2014 reform, remains inadequate with the principle of the presumption of innocence.

Also, in matters of misappropriation of public funds or illicit enrichment, it is up to the person accused to prove the lawful origin of their assets. Likewise, a person accused of pimping must prove that he is not pimping.

Another exception to the presumption of innocence: defamation. Which is defined as the allegation of a specific fact which undermines the honor or consideration of a person. Thus, when someone is sued for defamation, they have ten days, from notification, to provide proof of their not guilty. He must prove that the information is true and that he did not intend to harm the person.

Because contrary to what many think, one of the constituent elements of defamation is not the veracity of the facts reported. Information can be true and defamatory. It is the way it is disseminated that can be defamatory.

By Aliou DIOUF