Law No. 2015-11 06 May 2015

Original Language Title: Loi n° 2015-11 du 06 mai 2015

Read the untranslated law here: http://www.jo.gouv.sn/spip.php?article10444

Act Act No. 2015-11 06 may 2015 Act No. 2015-11 06 may 2015 on waqf statement of reasons the Waqf, according to Muslim law is a property whose enjoyment is given either to a public recipient (public waqf) be specific the Coordinator family members or third parties (family waqf), either to the two categories of beneficiaries (mixed waqf). The constitution of waqf, whose enjoyment may be granted to various charitable, has a direct impact on economic development, the well-being of the beneficiary populations in the areas of health, education, employment and agriculture, as it is verified in many countries which have long provided legal and economic their waqf property protection.

Aware of the effectiveness of such an instrument of solidarity, the Government committed to a social policy of reducing inequalities, improvement of access to basic social services, income redistribution, social welfare groups ones and national solidarity organization, wants to promote and facilitate the implementation of projects waqf by setting up an appropriate legal framework.

To this end, the present Bill has been developed and is designed to ensure the protection of the goods object of waqf, preserve the wishes of constituents, ensure perpetual or temporary of the waqf, constitute a receptacle to accommodate existing waqf and other waqf initiatives to create.

This legal framework considers that public waqf consists of goods and public and/or private resources, managed by an entity public and put at the disposal of the large number for acts of charity, charity and solidarity.

Taking into account the specificity of this type of waqf that requires the safeguarding of its assets with a view to allow its role of vector of development and social advancement, the Bill grants privileges for the recovery of claims while framing the procedures for assignment of the object of waqf property.

Bill devotes an original category of waqf called waqf of public interest which is formed by property and private resources managed by a private person or entity that may benefit from the recognition of public utility. This concept takes into account the Senegalese context characterized by the existence of waqf that their constituents were works of charity and charity, so pursuing an aim of public interest this type of waqf is managed privately or is entrusted to a public utility Foundation.

The Bill confers on the State, a power control and supervision over private endowments or family.

Organizationally, it is envisaged the establishment of a high administrative authority which will support public management of the waqf and the supervision of other types of waqf.

From the point of view of its architecture, Bill revolves around a (01) preliminary basis which establishes the scope of application and definitions and four (4) other securities relating respectively to: - the provisions common to the waqf (first title), - the specific arrangements to the waqf public (title II), - the specific arrangements to the waqf of public interest (title III) - transitional and final provisions (title IV).

 

The National Assembly adopted in its session of Friday, April 24, 2015, the President of the Republic enacts the law whose content follows: preliminary title. -DEFINITIONS AND SCOPE SECTION ONE. -DEFINITIONS Article 1. -For the purposes of this Act, is meant by:-Waqf: any property whose ownership is immobilized in perpetuity or in time and whose enjoyment is assigned to a work of charity and benevolent public or private.

The waqf is public, mixed, family or public interest.

-Public Waqf: well formed waqf managed by a person public and whose enjoyment is affected first or last to works of charity and charities as well as to the realization of a work of general interest.

-Waqf of family or waqf private: everything nicely formed waqf for the benefit of some members of the family or the progeny of the grantor or of a third person or entity.

-Mixed Waqf: well formed waqf for a party in favour of a public work, and the other part of that item, for the benefit of a person or of its progeny or for the exclusive benefit of the designated person. It may be composed of a waqf family and a public waqf or a waqf of public interest.

In the case of a mixed waqf with a waqf component public, management of the waqf is public waqf.

-Waqf of public interest: all waqf with an aim of public interest managed by a private person or entity.

-Component: any natural or legal person which constitutes his waqf property.

-Beneficiary: any natural or legal person capable of receiving the usufruct of the waqf property.

SECTION II – Scope art. 2 - rules relating to the constitution, the effects and the extinction of the waqf, laid down by the provisions of this Act, apply to all types of waqf, when they are not in contradiction with the provisions governing them.

The waqf of public interest and public waqf are governed, within their respective areas of responsibility, by special provisions.

TITLE FIRST. -CHAPTER I: COMMON PROVISIONS. -NATURE AND LEGAL SECTION FIRST WAQF REGIME. -NATURE JURIDIQUE DU WAQF first paragraph. -General art. 3 - the waqf public, defined in article first, can be formed by one or several goods and resources whether they are public or private origin.

When a private component a waqf property for the benefit of a work of charity or charities with a private type management, this waqf can be of public utility under the conditions provided by this Act. It is called according to the definition given in article 2 "waqf in the public interest."

Private or family waqf can be beneficiary, members of the family of the grantor, a third person or entity.

The part of the joint waqf incorporated family waqf is subject to the legal regime that applies to one - ci.

That part comprised waqf of public interest obeys the rules and procedures laid down in articles 63 and 65 of the Act.

S. 4 - the waqf can consist of immovable and movable property, and financial or monetary assets.

However, monetary assets must be invested in accordance with the conditions stated in the deed of incorporation.

Constituted property public waqf are unattachable and indefeasible.

Paragraph 2. -Constitution of the waqf s. 5. - the grantor of waqf, whether natural or legal person having a lawful object must be owner of the property and not be disqualified from an inability to have gratuitous under penalty of nullity of the waqf.

When the collateral to waqf is loads, the grantor must obtain special approval of registered creditors who expressly waive any claim on said well.

The rules of common law, including family law, governing the capacity to contract, representation or mandate as well as the prohibition and the protection of the forbidden, are applicable to the grantor.

S. 6 - the waqf consists of constituent Express offer expressed in writing. If the offer is made by the settlor during his last illness, it is assimilated to the will in accordance with the provisions of the Family Code and cannot exceed one-third of its assets, except with the consent of the heirs.

S. 7. - acceptance of the offer by the beneficiary designated by the settlor must be given in writing within the time limit set by the latter. Failing to have fixed one, acceptance must take place within a reasonable time; whether express or implied, it must not be ambiguous.

The acceptance of the offer by the beneficiary shall be deemed tacit or written response thereof within three months following the date on which his appointment was notified or served.

However, the constitution of the waqf is perfect from the offer unless it was submitted to a suspensive condition which only can hone the waqf.

When the grantor has not designated a beneficiary, or if the offer did not meet the acceptance of the beneficiary designated by the settlor, the property is made public waqf.

S. 8 - the constitution of the waqf property is done by notarial deed or by private deed filed in the rank of the minutes of a notary with recognition of Scriptures and signatures.

The constitution of the real estate in waqf, his withdrawal in time or in perpetuity subject to registration in the land register.

For endowments created by the State or its dismemberments, the appointment is done by Decree without prejudice to applicable pension laws on assignment of the property of the State.

S. 9 - the notary shall forward a copy of the Constitution to the head of the high authority of the Waqf laid down in article 27, no later than 30 days from the receipt of the Act.

The constitution of the waqf, when it is made by testament is subject to the same conditions of authenticity and communication of the copy of the deed to the aforementioned Authority.

Subsection 3. -Entry into possession of the well formed waqf s. 10 - the grantor authorizes the waqf Constitution enters into possession of the property by the recipient if required acceptance of the said recipient is given in its preparation.


If the acceptance is not concomitant with the incorporation deed, the grantor resets to the beneficiary a notarized statement of entry into possession after express or tacit acceptance by within three (03) months following the date on which his appointment was notified or served.

When the notarized statement can be produced, for various reasons the coming into possession of the property may be established by the inscription of the property waqf on the land title or by any act done by the recipient on the property with the consent of the grantor.

SECTION II - Legal REGIME of the WAQF first paragraph. -Validity s. 11. - the conditions specified by the settlor must, on pain of nullity, be respected and applied if they are lawful and enforceable.

When the constitution of the waqf is subject to an unlawful condition or whose execution is impossible, the waqf remains valid. Only incur the nullity. In this case, the grantor is required to formulate a legal condition, otherwise, the high authority of Waqf there proceeds.

S. 12.-. Proof that the waqf established by the State or its dismemberments results of the decree establishing. The constitution of other endowments is established by notarial act or deed under private seal filed to the rank of the minutes of a notary with recognition of Scriptures and signatures. The character authentic act constituting such waqf extends to entries in the register provided for in article 27.

Paragraph 2. -Causes of nullity art. 13 - the constitution of the waqf is zero for the following reasons: the purpose of the grantor is manifestly unlawful.

 the grantor is in a State of incapacity under the rules on the capacity and the prohibition resulting from the laws and regulations;

  the rules on their representation by attorneys or by the authorities empowered to designate their representative have not been complied with;

  the property was waqf for the component itself;

  the grantor dies before the beneficiary takes valid possession of the waqf, unless of the grantor living, said profit had already claimed possession of the property.

Subsection 3. -End of Waqf s. 14 - the waqf is terminated in the following cases: at the expiration of the duration of the waqf consists in time;

  the irreversible deterioration of the property, especially, by the fact of a fortuitous or force majeure.

However, if the property constituted waqf disappears by a third party, it is required to replace it and the right of the beneficiary exerted on the well supplied as a replacement for a portion of the property destroyed, the waqf continues to produce its effects on the intact part and which may result in the replacement of the damaged part.

CHAPTER II. -THE LEGAL EFFECTS OF THE CONSTITUTION OF THE WAQF SECTION FIRST PROPERTY. -THE RIGHTS AND OBLIGATIONS OF THE GRANTOR.

S. 15. - the grantor of a private Waqfs or family must designate the beneficiary or work should benefit from the enjoyment of the waqf property.

When he heard not designate a beneficiary, the property is made public waqf of right.

S. 16 - the grantor should be well formed waqf at the disposal of the beneficiary. To do this, it is required to establish by notarial deed, sous-seing private or by decree that the property was formed waqf for the beneficiary.

S. 17 - the constitution regularly made of the waqf property is final. The grantor can retract of the constitution of the Waqfs only in the following cases:-when it States in the Act this possibility in the event of depletion;
-When the condition of the existence of a future beneficiary is not fulfilled.

S. 18 - the grantor is not limited to the warranty of eviction from the well formed waqf or to the guarantee of its latent defects vis-à-vis of the beneficiary.

However, it is held responsible for any intentional act or gross negligence that he commits and causing damage to the well formed waqf.

Division II - rights and OBLIGATIONS of the recipient s. 19 - the recipient may be determined by the person or by its quality at the time of the constitution of the waqf. It can be also determined after the incorporation of the waqf.

The designated beneficiary must express his express or tacit acceptance in the conditions laid down for the entry into possession, by this Act.
The rules of representation and mandate laid down by the common law apply to the recipient.

S. 20. - the recipient is entitled to use well established waqf and operate according to the stipulation of the grantor and in a manner consistent with the purposes of the waqf.

It can also enjoy him - even well established waqf or assign the right of use to third parties, unless the right to the waqf is exclusive to his person.

S. 21 - if the waqf concerns immovable property, the beneficiary may enjoy all rights assigned to the building and all accessory that is United and is incorporated.

When the waqf is land, the enjoyment of the beneficiary extends on the ground and all the buildings and plantations which are there, except stipulation or otherwise use.

The beneficiary may, subject to the provisions of this Act, affect the building of real rights that provide added value. In this case these rights are considered to be Waqfs in the same way as the building.

S. 22 - if the recipient or a third party performs on his own money, constructions, installations or plantations on the building without prior permission of the high authority of the waqf, the latter can either keep them or compel him to remove them at his own expense and to restore the building in the State.

S. 23. - the recipient is required to ensure conservation well formed waqf with the same care he brings to the preservation of its own property. It is responsible for damage to the property caused by its fault, negligence or imprudence. He is held responsible for breaches of the obligations of the guard.

S. 24 - the right of the beneficiary to the property constituted waqf shall lapse in the following cases:-death or termination of activities;
-absence or disappearance of the beneficiary when the enjoyment it is exclusive;
-loss of quality which conferred the right on waqf;
-express waiver of his right to the enjoyment of the waqf property.

S. 25. - If the right of the beneficiary turns off, according to one of the above cases, law on the waqf property returns to one of his guardian if there is and if the constituent of the Wakf Act.

The extinction of the guardian, he returned to the grantor or his heirs.

SECTION III. -ADMINISTRATION of WAQF s. 26 - it is created an independent administrative authority responsible for the administration and supervision of the waqf, called high authority of the waqf. Rules of organisation and operation of the said structure are fixed by Decree.

Art 27. -The high authority of Waqf has for missions including:-to receive the notary acts of waqf and documents referred in Article 9 above - on;
-to administer public endowments;
-to promote the development of the waqf including public;
-to monitor and supervise family waqf, mixed endowments and endowments of public interest;
-to ensure the use of the waqf according to wishes of the settlor;
-to keep a register in which are recorded the waqf property to effectively ensure its missions;
-to ensure the registration in the land register of any immovable property consisting in waqf;
– to ensure the protection and preservation of the heritage of the waqf.

Title II. -PROVISIONS SPECIFIC TO THE PUBLIC CHAPTER I WAQF. -LEGAL NATURE AND SCOPE OF THE WAQF PUBLIC SECTION FIRST. -LEGAL NATURE of the WAQF PUBLIC arts. 28. - the General provisions of the waqf which are not contrary to those of the present provisions shall continue to apply to public waqf.

S. 29 - the high authority, the waqf manages and enhances the property constituting the public waqf in accordance with the rules laid down by this Act and the regulations for its implementation. As such, all legal acts aimed to preserve the goods and increase their incomes must be made taking into account of their nature and their proven interest.

S. 30 - the high authority of the Waqf is represented in the acts of civil life and justice by his Manager.

S. 31 - because of the importance or the particularity of the aim pursued, the high authority of the Waqf can delegate the management of one of the property constituting the public waqf.

Management and operation of this type of waqf modalities are fixed by Decree.

SECTION II. -LEGAL REGIME of the WAQF PUBLIC arts. 32 - made goods public waqf are be transferable only in accordance with the provisions of this Act.

They may be subject to Exchange cash or in nature, following derogatory assignment procedures laid down in chapter II of this title.

S. 33 - all well formed waqf in perpetuity for the benefit of private work returns to the grantor or his heirs, interrupted.

The waqf is deemed to be interrupted in case of extinction of the work to the benefit of which it was formed or when it ceases to exist or in case of death of the beneficiary, where it is designated.

S. 34 - receivables owed to the public waqf are deemed to be imprescriptible privileged claims of the same rank as those classified 3rd ranked by the provisions of article 107 of the Uniform Act organizing securities of OHADA.


CHAPTER II. -ASSIGNMENT OF THE WAQF PUBLIC PROCEDURES: THE EXCHANGE, SALE, RENTAL OF THE PROPERTY OF THE WAQF PUBLIC.

SECTION FIRST. -PROVISIONS Commons article 35. - the waqf may, exceptionally, be the subject of Exchange in cash or in kind for:-preserve its perpetual character;
-carry out the necessary maintenance work;
-Replace with another well able to perform the same functions of waqf in the case of inevitable loss.

S. 36. - trade and lease constituted property waqf, and sales of products belonging to the waqf public, are subject to the principles of competition between bidders and to the rules of transparency and prior in effect advertising.

S. 37 - exchanges or leases for the waqf buildings intended for facilities or public facilities, trade securities, as well as sales of deterioration-prone crop, can be operated through the direct by duly reasoned decision agreement.

SECTION II. -EXCHANGING art. 38 - made goods public waqf can be exchanged in cash or in kind at the initiative of the high authority of the Waqf, or at the written request of any interested person. First paragraph. -exchanging cash s. 39. - an order of the Minister in charge of finance lays down a system of assessment of the value of goods to be exchanged and specifies the authorities empowered to sign and approve trade according to thresholds of competence.

The public exchange of waqf property funds should be allocated to the acquisition of a replacement property or must be invested in order to preserve the interests of the waqf and to improve its revenues, in accordance with the provisions of Article 40.

Paragraph 2. -nature art exchanges 40 - well to be exchanged in kind against a well formed public waqf must have an estimated value equal to or greater than that of the property constituted public waqf established by appropriate expertise.

Immovable property received in Exchange by the waqf must be registered in the land register.

S. 41 - the conditions for Exchange are determined by order of the Minister of finance.

The contract of Exchange in kind must be established by notarial deed.

SECTION III. -FROM the sale of products belonging to the WAQF PUBLIC first paragraph. -offer for sale art. 42 - products belonging to the waqf public such as timber, logs or other, as well as products careers excerpts made public or manufactured products waqf land are offered for sale in accordance with the specifications laid down by the high authority of Waqf.

Paragraph 2. -conditions for payment of the price article 43 - the terms of payment of the price are fixed by order of the Minister of finance.

SECTION IV. -OF the lease of the wAQF PUBLIC first paragraph. -provisions Commons article 44 - the well established public waqf is being rented by a handler on authorization of the high authority of the Waqf. It cannot be given in rent at a rent lower than that of the similar goods.

S. 45 - the rental is made by tendering or bidding procedure approved by the high authority of the Waqf.

S. 46 - rental contracts are subject to the legal provisions and regulations relating to tenancies tenancies and commercial.

S. 47 - the tenant is liable for all taxes and fees to which he is legally subject.

S. 48 - the judicial decisions handed down in disputes involving a well formed public waqf are made in first and last instance.

Paragraph 2. -Special provisions to the rental of the waqf nonfarm s. good 49 - the non-agricultural waqf property is given in rent for a period not exceeding three years.

However, the duration may be renewable at the request of the lessee three months prior to its expiry, subject to the approval of the high authority of Waqf.

The high authority of the Waqf has the right to put an end to the lease of the non agricultural if she needs of:-resume the thing leased to create a religious, scientific, social or administrative institution;
-rebuild the leased thing or make substantial changes.

In the first case, the policyholder is entitled to an indemnity equal to the amount of the rent for the last three months, and the preference for the rental of the reconstructed thing in the second case.

Subsection 3. -Special provisions for rental of good agricultural waqf s. 50. - an order of the Minister responsible for fixed finance special provisions relating to the rental of the agricultural waqf property.

SECTION V. - the investment of the assets of the PUBLIC Arts WAQF 51 - property, funds, revenues of waqf are invested in accordance with the principles of Islamic finance.

Investment income are assigned priority to the maintenance of property waqf, the object of the waqf and the basic social sectors.

The Manager of the waqf may entrust a specialized investment of the assets of the waqf in their entirety or partially.

CHAPTER III. -ORGANIZATION OF THE FINANCES OF THE WAQF PUBLIC AND CONTROL SECTION FIRST. -PRINCIPLES of the financial organization and the PUBLIC Arts WAQF accountant 52 - public waqf heritage includes the public all of waqf property and their products so that all property assigned to his benefit.

S. 53. - a separate annual budget of the general budget of the State and of the high authority of the Waqf, is assigned to the public waqf. It is based on the financial balance between revenue and expenditure. This budget includes revenue and expenditure subdivided into two tracks, of which one is devoted to the functioning and other investment.

The recipes are:-products of rentals.
-commodity exchanges;
-the income of sales of products of the trees, crops and careers products made waqf public and others;
-products for subscriptions to the securities issued;
-subsidies of the State and other agencies;
-donations and bequests;
-loans in accordance with the principles of Islamic Finance;
-income from Islamic financing;
-other income.

Expenditures include:-repair and maintenance of property expenses made public waqf;
-expenditure on the beneficiary designated works, according to the stipulation of the grantor;
-the operating expenses of the property public waqf;
-expenditure on works social and religious;
-construction and equipment of the waqf institutions public expenses;
-investment spending;
-grants to meet the needs of the public waqf;
-miscellaneous expenses.

The annual budget of the waqf public revenues are divided in two forms: assigned revenue to cover the operating expenditures of the waqf and assigned revenue to finance investment operations relating to the creation of public waqf projects and the increase in the income from the property constituted public waqf. On the proposal of the head of the high authority of Waqf, the Minister of finance determines by order the distribution of revenue allocated to operating and capital expenditures.

S. 54 - when surplus revenue allocated to operating expenses, after covering such expenses, the excess must be postponed to capital expenditure to increase the income of the waqf public.

However, investment earnings can be used to cover operating expenses. Similarly, expenditures can be incurred, sequenced or paid only to the extent of the revenue assigned to them.

In all cases, the provisions of article 39 above relating to the allocation of revenues from trade must be observed.

S. 55 - the high authority of the Waqf is responsible for the draft annual budget of the public waqf and run it after the approval of the Minister of finance.

S. 56 - the head of the high authority of the Waqf is the authorising officer of the revenue and expenditure of the budget of the public waqf.

S. 57 - the high authority of the Waqf may, ex officio, and without prior permission, to appeal to public generosity for the benefit of the public waqf through the collection of donations in cash or in kind.

It can also, issue securities to the value determined whose product is assigned to the public waqf religious, scientific or social projects.

S. 58 - the financial management of the public waqf and the keeping of his accounts are subject to a financial organization and a manual of procedures approved by order of the Minister responsible for finance, took on a proposal from the head of the high authority of the Waqf.

S. 59. - contracts of works, supplies and services concluded by the high authority of the Waqf, for the benefit of the public waqf, are subject to the regulations and procedures for the award of public contracts.

S. 60 - A the close of each fiscal year, the high authority of the Waqf is developing a management account reports of the execution of the annual budget of public waqf, which is subject to the control of the Court of Auditors.

S. 61 - the tax treatment of the public waqf is that provided for by the provisions of the general tax Code.

Imports of materials and equipment for the realization of the waqf recognized of public utility may be exempted from customs duties.

SECTION II - OF THE WAQF PUBLIC FINANCE CONTROL


S. 62 - the high authority of the Waqf is subject to the control of the bodies of State control and an external control of compliance with the principles that govern the waqf.

TITLE III. -WAQF of interest PUBLIC arts. 63 - the waqf of public interest, at the request of the grantor, in his lifetime or, otherwise, on request made by the administrator of the Waqf to the high authority of the Waqf, may be the subject of recognition of utilities by Decree.

Of recognition of public utility fixes the administrative and control requirements to qualify for the benefits of the tax system and privileges granted by the laws and regulations in a recognized activity of public utility.

General terms and conditions for recognition of a waqf for public purposes are clarified by Decree.

S. 64 - property of the waqf recognized of public utility are alienable only under the conditions stipulated by the present law for public endowments.

S. 65 - the annual report on management, the budget and the financial statements of the waqf of public interest must be transmitted to the high authority of the waqf in six (06) months following the end of the fiscal year.

TITLE IV. -TRANSITIONAL provisions and final arts. 66 - waqfs in the public interest and the foundations of public utility assimilated, may, upon request of the grantor, his lifetime or, otherwise, upon request by the administrator to the high authority of the waqf, turn into public waqf.

S. 67 - has as of the entry into force of this Act, made previously, waqf has a period of one (01) year to comply with the provisions sus referred or abandon said appellation.

S. 68 - the constituent who wishes to enjoy his good is waqf, permanently, of the present legal regime is to pour it into public waqf.

S. 69. - this Act shall be published in the Official Journal.

This Act will be enforced as law of the State.

Made in Dakar, 06 may 2015.


Macky SALL by the President of the Republic: Prime Minister Mahammed Boun Abdallah DIONNE