The Politicization of the Cameroon Judicial System

Bonaventure F. Ndifor | 1 Regent J. Glob. Just. & Pub. Pol. 27 (2014)

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“[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

James Madison^[1]

ABSTRACT

Cameroon is a presidential republic with a peculiar twist to its political evolution and system of government. The Cameroon Constitution per Article 2(2) and Article 37(2) presents Cameroon to its citizens as a democratic nation with three distinct arms of government: the executive, the legislature, and the judiciary.^[2] Since attaining its independence on January 1, 1960, Cameroon has had two presidents: Ahmadou Ahidjo (1960–1982) and Paul Biya (1982–present).^[3] The office of the president is the highest executive office in the nation. The prime minister is the head of government and manages the government at the pleasure of the president who appoints him. This writer asserts that the Cameroon judicial system has been deeply entangled in the political affairs of government such that it has lost its independence and is currently being run as an extension of the executive branch. As such, the judiciary since independence has been unable to effectively exercise its basic functions as prescribed by Article 37(1) of the Constitution: “Justice shall be administered in the territory of the Republic [of Cameroon] in the name of the people of Cameroon” and not the government.^[4] The most noticeable shortcoming of the justice system in Cameroon lies in its inability to check the excesses of the other arms of government as prescribed by the Constitution. The President of Cameroon is the chief executive officer, head of the Judicial Council (contrary to Article 37(3) paragraph 2 of the Constitution),^[5] and the Chairman of the Central Committee of the ruling Cameroon People’s Democratic Movement (CPDM) party,^[6] which has a supermajority in both the Senate and the Lower House of Parliament.^[7] This has created a very powerful executive at the expense of the judiciary and legislature. This can be considered the center point of this paper as the writer seeks to peel back layer after layer of the executive entanglement in the judiciary, thereby rendering that arm of government mute to executive excesses. In conclusion, this paper examines pertinent socio-economic and political impacts of judicial dependence on the executive branch. The writer goes further by proposing important recommendations to bring about an era of mild balance of power, checks and balances, and judicial independence.

COUNTRY BACKGROUND: CAMEROON

Cameroon is located at the “armpit” of Africa. It is triangular in shape, stretching about 1,200 km to the north from a base 800 km wide, and covers an area of 475,440 km2.^[8] It is located at 6º north and 12º east.^[9] It is bordered to the south by Equatorial Guinea, Gabon, and the Republic of the Congo, to the east by the Central African Republic, to the northeast by Chad, to the west by Nigeria, and to the southwest by 402 km of Atlantic coastline.^[10] Cameroon is characterized by a great diversity of the natural environments found in different parts of Africa. This feature has earned it the sobriquet “Africa in miniature.” The Cameroonian people are comprised of over 281 ethnic groups (only two tribes are recognized as indigenous: the Mbororo-Fulani and the Mbaka Pygmies)^[11] divided into three cultural groups: the Bantu in the South, Littoral, Southwest, Centre, and Southeast regions; the Bantoid or semi-Bantu in the West and Northwest regions; and the Sudanese in the Adamaoua, North, and far North regions.^[12] “The Pygmy population, which is not included in these larger groups, lives in the South, East and Centre provinces.”^[13]

ORIGINS OF CAMEROON’S BIJURAL LEGAL SYSTEM

“Bijuralism is defined as the coexistence of two legal traditions within a single state.”^[14] Cameroon is said to be bijural because there exists both the common law and civil law systems in Cameroon. The history of Cameroon bijuralism is unique based on its history from 1884 to 1961. Over the years, prominent Cameroonian historians and researchers have written broadly and in-depth about the reunification between East and West Cameroon. East Cameroon is the portion of Cameroon that was administered by the French, while West Cameroon was the portion administered by the British as part of Nigeria.^[15] Several months after Nigeria became independent from Britain and due to reunification forces in the British West Cameroons, a U.N. plebiscite was held to determine whether British West Cameroon would join Nigeria or La République du Cameroun (already independent).^[16] The southern section of British West Cameroon joined La République du Cameroun, while the northern section chose to remain as a part of Nigeria.^[17]

This means the British administered a portion split in two as a result of the plebiscite. Britain established a common law legal system in West Cameroon embedded in the indirect rule system of administration through Southern Cameroon High Court Law of 1955.^[18] On the other hand, the French, through the policy of assimilation, established the civil law system as the basic structure of justice in East Cameroon.^[19] The unification of East and West Cameroons resulted in the birth of the Cameroon bijural legal system.^[20] Given that West Cameroon, a common law region, never gained its independence, it was unable to bargain from a position of strength at the Foumban Conference (the conference wherein the unification terms were discussed and agreed upon) as an equal partner against its independent French-speaking counterpart.

This unification resulted in the civil law system taking a predominant position over the common law system with both bodies of law coexisting in an unstable marriage. The President and Vice President properly reflected this predominance after the unification of the Cameroons; the President of the Federal Republic of Cameroon (1st Republic) was Ahmadou Babatoura Ahidjo, who is from the French-speaking part of Cameroon, and the Vice President was John Ngu Foncha, who represented the English-speaking part of Cameroon. The office of the president had and still has the power to appoint cabinet ministers, including the Minister of Justice. As such, Ahidjo appointed Jean-Claude Victor Kanga who was from the French region. This meant that the common law always came in second place and would not be recognized as a legal system in its own right, equal in stature to the civil law system. This situation persists to date; since independence, there has never been a president from the former British-administered West Cameroon to recalibrate the status quo, which could be done by giving the common law equal status to the civil law as stipulated by the Constitution. The protracted inequality of the two bodies of law has been one of the fundamental issues undermining the proper functioning of the judicial system. Even though customary laws and practices are still a recognized body of law in Cameroon, this body of law will not be discussed in this paper due to its relative undeveloped nature. It should be noted that customary laws and practices supplement national laws in matters concerning village level disputes on land tenure, property, and people.^[21]

In the English-speaking regions of Cameroon, customary law is recognized by virtue of Section 27 of Southern Cameroon’s High Court Law of 1955 . . . . In the French-speaking regions of Cameroon, customary courts were integrated into the judicial system in 1959 through Ordinance No. 59-86 of December, 1959 . . . . Article 46 of the 1961 Constitution of the Federal Republic of Cameroon, now Article 1(2) of Law No. 96-6 of 18 January 1996, maintains the observance of “native laws and customs” as a source of Cameroonian law.^[22]

CONSTITUTIONAL WEAKNESSES AND EMPOWERMENT OF THE EXECUTIVE BRANCH

Black’s Law Dictionary defines a constitution as “[t]he fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.”^[23] Constitution-making in the pre- and post-independence periods in Africa were elite-driven, top-down, and non-participatory. In the former French colonies, constitution-making degenerated into the adoption of the constitutional platform offered by the French controlled colonies. In the British colonies, constitution-making was carried out by urban-based elites, many of whom were actually chosen by the colonial government instead of the people.^[24] The outcome of such rule selection processes were institutional arrangements that failed to adequately constrain the state and did not provide a newly independent country’s diverse population groups with the mechanisms needed for peaceful coexistence. Specifically, the post-independence laws and institutions failed to protect the fundamental and human rights of the citizens, especially in the Francophone as opposed to their British-controlled counterparts who took human rights issues more seriously.^[25]

The first constitution of Cameroon was drawn on January 1, 1960. The 1960 Constitution was drawn under the stewardship of Ahidjo (then Prime Minister of French Cameroon) under tumultuous circumstances.

This political turmoil was the handiwork of French administrators who indulged themselves in the uphill task of exterminating anti-French Cameroonians. Prime Minister Ahidjo used the turmoil as a pretext to obtain emergency powers from parliament to design Cameroon’s [first] constitution. The constitution was adopted in a referendum while a state of emergency was in force, [and] the French army was protecting the Ahidjo government against its citizens.^[26]

In 1961, the second constitution, which was simply an upgrade of the 1960 Constitution, came into force. The third constitution is the 1972 Constitution, which has also been heavily amended. Cameroon has had at least three constitutions and numerous constitutional amendments. The most controversial issue with the Cameroon Constitution is the fact that there is great debate and uncertainty as to which constitution is officially and currently in force based on many amendments. This is mainly because courts and jurists have remained unsure, and most times are unable to determine with convincing clarity whether the 1996 constitutional amendment, increasing the number of articles from thirty-nine to sixty-nine, actually abrogated the 1972 Constitution. If the 1996 Amendment truly abrogated the 1972 Constitution, the amendment was a complete overhaul and created a new constitution. Per Professor Charles M. Fombad, “[t]he 1996 constitutional amendment is essentially negative, defensive and merely [a] protective obfuscation of the ‘status quo ante’. Shrouded in obscurity, it is a moribund arrangement in which autocratic practices and policies are deeply embedded, and is marked by presidential absolutism and a feeble legislature.”^[27]

In 1996, the 1972 Constitution was amended by increasing the number of articles from thirty-nine to sixty-nine. For purposes of this paper, the 1996 amendments will be considered an abrogation of the 1972 Constitution because of the far-reaching effects of the amendments and also because it is considered the official constitution by most tribunals in Cameroon. In March of 2008, six articles of the 1996 Constitution were amended, the most notable of which was the modification of Article 6(2), which removes the two-term limit for current and future presidents of the republic.^[28] “Article 2(1) [of the Constitution] vests national sovereignty in the people who exercise this [right] either through the President of the Republic and members of the Parliament or by way of referendum.”^[29] Removing the term limit by way of a parliamentary super majority and not by referendum empowers any government in power to continue staying in power.

Articles 26 and 27 of the Cameroon Constitution draw a distinct line between executive power and legislative power: the legislature’s most important power is to legislate (Le Pouvoir Legislative) and the executive’s power is to issue decrees and administrative ordinances (Le Pouvoir Reglementaire).^[30] These powers are further expanded in Article 28.^[31] Article 27 gives the government the authority to enact and pass laws on issues not within the jurisdiction of the legislature as defined by Article 26.^[32] The members of the executive empowered by Article 27 and enhanced by other articles include the President (Article 8(5)), the Prime Minister (Article 12 (3)), and other appointed government officials (including but not limited to the Governor and divisional officers).^[33] This article empowering the executive to make laws by decree is an important constitutional weakness, which will be further discussed in topic number five below.

The Cameroon Constitution guarantees judicial independence: “Judicial power shall be exercised by the Supreme Court, Courts of Appeal and Tribunals. The Judicial Power shall be independent of the executive and legislative powers.”^[34] After stating unequivocally on one hand how independent the various arms of government should be, the Constitution on the other hand takes away the same by stating that “[t]he President of the Republic shall guarantee the independence of judicial power. He shall appoint members of the bench and of the legal department.”^[35] This example points to an important contradiction in the Constitution that has created key weaknesses used by the executive to infringe on the independence of the judiciary by indirectly giving the executive power over the judiciary; the Constitution thereby takes away the power of judicial review of executive action.

By giving one branch of government the power to guarantee the independence of the other, the framers of the Cameroon Constitution could not have been thinking of a truly independent judiciary or separation of powers while drafting the Constitution, as posited by John Mukum Mbaku and supported by this research.^[36] This is explained by the fact that the Constitution was framed (by Ahidjo under the auspices of the French colonial power) to create a presidential state in which the President of the Republic will hold the supreme power to manage the judiciary as he sees fit. This position has been properly illustrated in the build up to this point of the research wherein the executive has the prerogative to oversee the inner workings of the judiciary.

This situation is made clearer by the fact that judges and magistrates see themselves as civil servants reporting to the executive branch, and not as part of an independent branch of government. As the main law of the land, the Constitution puts the responsibility of assuring the independence of the judiciary in the hands of the executive. Together with the format in which judges and magistrates are trained in Cameroon, this lends itself to the idea that judges and magistrates feel a false sense of justification in making politically sound but legally untenable decisions because of the fear of either losing their jobs or being sent to prison.

After reviewing the inherent weaknesses built into the Cameroon Constitution, there is no gainsaying the fact that a constitution’s integrity depends as much on its content as on its proper interpretation and execution.

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1. THE FEDERALIST NO. 51 (James Madison). ↩︎
2. CONSTITUTION OF THE REPUBLIC OF CAMEROON 1972, art. 2, § 2 & art. 37, § 2. Article 2(2) states: “The authorities responsible for the management of the state shall derive their powers from the people through election by direct or indirect universal suffrage, unless otherwise provided for in this Constitution.” Id. at art. 2, § 2. Article 37(2) states: “Judicial power shall be exercised by the Supreme Court, Courts of Appeal and Tribunals. The Judicial Power shall be independent of the executive and legislative powers. Magistrates of the bench shall, in the discharge of their duties, be governed only by the law and their conscience.” Id. at art. 37, § 2. ↩︎
3. Victor Julius Ngoh, CAMEROON 1884-1985 A HUNDRED YEARS OF HISTORY 139-40, 160 (2d ed. 1988) (“On January 1, 1960, with UN Secretary General Dag Hammarskjöld looking on, Ahidjo [then prime minister of French Cameroon] declared French Cameroonan independent state under the name of the Republic of Cameroon with a green-red-yellow flag.”). The Republic of Cameroon reunited with the British Southern Cameroons in 1961 with Ahmadou Ahidjo as the president of the Federal Republic of Cameroon and Charles Assale as the Prime Minister of East Cameroon. Id. at 215–41. ↩︎
4. CONSTITUTION OF THE REPUBLIC OF CAMEROON 1972, art. 37(1). ↩︎
5. Id. at § 3, ¶ 2 (“He [the President] shall be assisted in this task by the Higher Judicial Council which shall give him its opinion on all nominations for the bench and on disciplinary action against judicial and legal officers.”) ↩︎
6. Cameroon People’s Democratic Movement, Presentation of the Central Committee, RDPCPDM, http://www.rdpcpdm.cm/presentation/pr%C3%A9sentation-du-comit%C3%A9-central (last visited Oct. 28, 2014). ↩︎
7. The Fomunyoh Foundation, The State of Democracy in Cameroon, TFF, http://www.tffcam.org/foundation/democracy.htm (last visited Oct. 28, 2014). ↩︎
8. The World Factbook: Cameroon, CENT. INTELLIGENCE AGENCY, https://www.cia.gov/library/publications/the-world-factbook/geos/cm.html (last updated June 22, 2014). ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. United Nations, Office of the High Comm’r for Human Rights, Climbing Hills of Injustice in North-West Cameroon – Rahamatu the Mbororo-Fulani, UNITED NATIONS HUMAN RIGHTS (July 2007), http://www.ohchr.org/EN/NewsEvents/HFHR/Pages/StoryCameroon.aspx. ↩︎
12. U.N. Int’l Human Rights Instruments, Core Document Forming Part of the Reports of State Parties: Cameroon, HRI/CORE/1/Add.109 (June 19, 2000) [hereinafter Core Document]. ↩︎
13. Id. ↩︎
14. Marie-Claude Gervais & Maries-France Séguin, Some Thoughts on Bijuralism in Canada and the World, CANADA DEP’T OF JUST. 1, available at http://www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/hfl-hlf/b2-f2/bf2.pdf (last visited Oct. 3, 2014) [hereinafter Gervais]. ↩︎
15. Duane E. Sams, The Legal Aspects of Doing Business in Cameroon, 17 INT’L L. 489, 490 (1983). ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Joseph Nzalie Ebi, The Structure of Succession Law in Cameroon: Finding a Balance Between the Needs and Interests of Different Family Members 21, 22 (Oct. 2008) (unpublished Ph.D. thesis, University of Birmingham), available at http://etheses.bham.ac.uk/300/1/NzalieEbi09PhD_A1a.pdf. The Southern Cameroon High Court Law states: Subject to the provisions of any written law and in particular of this section . . . of this law; – a) the common law; b) the doctrines of equity; c) and the statutes of general application which were in force in England on the 1st day of January 1900, shall in so far as they relate to any matter with respect to which the legislature of the Southern Cameroons is for the time being competent to make laws, be in force within the jurisdiction of the court. Id. at 23. ↩︎
19. Id. at 25. ↩︎
20. Martha Simo Tumnde, Harmonization of Business Law in Cameroon: Issues, Challenges and Prospects, 25 T UL. EUR . & CIV . L.F. 119, 121–22 (2010). ↩︎
21. See Victor Emmanuel Bokalli, La Coutume, Source de Droit au Cameroon, 28 REV .
    GEN. 37, 44–48 (1997). ↩︎
22. Tumnde, supra note 20, at 122. ↩︎
23. BLACK’ S LAW DICTIONARY 353 (9th ed. 2009). ↩︎
24. See generally Victor T. LeVine, The Fall and Rise of Constitutionalism in West Africa, 35 J. M OD. AFR . STUD. 181 (1997) (noting the constitution-making history of multiple African nations). ↩︎
25. Id. at 190. ↩︎
26. Nicodemus Fru Awasom, Politics and Constitution-making in Francophone Cameroon, 1959-1960, 49 AFR . TODAY, Winter 2002, at 3, 3. ↩︎
27. Charles Manga Fombad, The New Cameroonian Constitutional Council In A Comparative Perspective: Progress or Retrogression?, 42 J. AFR. L. 172, 173 (1998). ↩︎
28. Charles M. Fombad, Researching Cameroonian Law, GLOBALEX (2011), http://www.nyulawglobal.org/globalex/cameroon1.htm (last visited Oct. 3, 2014). ↩︎
29. Id. ↩︎
30. Id. ↩︎
31. CONSTITUTION OF THE R EPUBLIC OF CAMEROON 1972 art. 28 (“Parliament may empower the President . . . to legislate by way of ordinances for a limited period and for given purposes . . . . They shall be of a statutory nature as long as they have not been ratified
    . . . . They shall remain in force as long as Parliament has not refused to ratify them.”). ↩︎
32. Id. at art. 27. ↩︎
33. Id. at art. 8(5) & art. 12(3). ↩︎
34. Id. at art. 37(2). ↩︎
35. Id. at art. 37(3). ↩︎
36. See generally John Mukum Mbaku, The Separation of Powers, Constitutionalism and Governance in Africa: The Case of Modern Cameroon (Mar. 2013) (unpublished manuscript), http://works.bepress.com/john_mbaku/7/ (discussing how the separation of powers doctrine is simply an abstract constitutional construct in the Cameroonian Constitution). ↩︎