CHAPTER ONE

INTRODUCTION.

This chapter comprises the background to the study, statement of the problem, purpose of the study, objective of the study, significance of the study, research question, limitation of the study, delimitation of the study, basics assumptions of the study, definition of significant terms and organization of the study.

1.1 Background to the study

In simple words, we can say a Constitution is the background and mother law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organization and functions of the government of state. The Government can use only those powers which the Constitution grants to it. Due to the division of the powers to make laws in Cameroon; the Executive, Legislative and Judiciary, there is the need for controlling and ensuring that the laws made by these authorities conform to the constitution. The application of the principle of separation of powers is not a strict one. The application of this principle is flexible that is to say there is a sphere of sharing powers and competences. The ability for one of these powers to excellently perform its functions depends on the other to an extent.

The legislative vote’s laws, the Executive promulgates them and the Judiciary interprets and implements them. Furthermore, other high authorities of the Executive such as the president of the republic and the Prime minister can create laws, statutes decrees and ordinances. Hence, disputes regarding the constitutionality of laws are inevitable. Certain mechanisms are been put in place by many countries and states to ensure the control of constitutionality of laws.

One way of guarding and demarcating the boundary is through creating an institution that controls the constitutionality of laws either by way of constitutional or judicial review.

Controlling constitutionality of laws by way of ‘constitutional’ or ‘judicial’ review and subordinating statutory law and state action to higher principle may take different forms.

1.2 Justification of the study

The reasons could be outline as follows:

1. The loopholes found in the Cameroonian constitution requires a study so as to bring to light the short comings of the Cameroonian legislator in the elaboration of the constitution.
2. The nature of the application of the principle of separation of powers in the state warrants a study to reveal how independent the mechanism of the judiciary is functioning.
3. The nature of the crisis(the Bakassi peninsula crises, Boko Haram crises, the Anglophone crises, accidents and other predicaments) that has in recent years befallen the some parts of the national territory giving rise to periods where administrators do exercise their rights to create regulations and decrees. The study becomes inevitable because such regulations need to be checked for constitutionality and consistency with higher statutes.
4. The increasing growth of technology and Globalisation is another important reason of the study because it is important to understand if the implementation of Constitutionality in present day still represents the will of the people of a nation or if globalisation and the harmonisation of laws have taken protected sovereign constitutional and cultural values.
5. Another reason for this study is to see the extent to which theory ties with practice and if yes how effective is the Control of Constitutionality of Laws.

1.3 Definition of significant terms

The following definitions are provided to ensure uniformity and understanding of the terms throughout the study.

1.3.1 The Constitution:

Gilchrist states the Constitution of a state is that body of rules or laws, written or unwritten which determine the organization of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.

1.3.2 Constitutionality of laws:

Constitutionality of law is a condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act’s accordance with the laws or guidelines set forth in the applicable constitution. When one of these (laws, procedures or acts) directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise.

1.3.3 Control of constitutionality of laws:

This is the ability to proclaim and rule over what is constitutional or unconstitutional even when it goes contrary to what has been stated in the applicable constitution at the time been.

1.3.4 Separation of powers:

This is a system of governance where the government is divided into three branches called the Executive, Legislative and the Judiciary where each of them operate independently yet lies a scope of interference.

1.3.5 Judicial Review:

The power of the court to review the acts of other branches of the government, usually to determine that the law is properly applied; review by the Supreme court of acts of legislature, as established in the case of Marbury v. Madison. Review of trial court’s decision by an appellate court

1.3.6 Constitutional Court:

A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional i.e whether they conflict with constitutionally established rules, rights and freedoms.

1.4 Statement of the problem.

The Constitution is the supreme law of each State which lays down rules regarding the organization, powers and functions of government as well as defines the basic features of the and the relation between the citizens and the State. By the above the constitution is a central or key point in the functioning of the state. Its definition of institutions, their authorities, the guarantee it accords to every citizen viz their fundamental human rights and liberties, its implementation is not as perfect as written because there are issues that constantly arise regarding conflicts of other national law rules with those of the constitution and international treaties. The nature of the separation of powers exercised by many countries in the world today (the flexible separation of powers) warrants the control of constitutionality of laws as is the case of Cameroon. The character which the organ in charge of controlling the constitutionality of laws in Cameroon takes also becomes a weakness which warrants a study of the concept. Furthermore, the blend of theory and practice also brings forth another great problem. Actual practice does not really tie with theory because some of the constitutional provisions thus undermine the need for ensuring constitutionality of laws is a task to be handled by fully competent legal persons who do not only dwell in the law but also understand the techniques used in elaborating such a constitution so as to avoid vagueness in interpretation and application.

Controlling constitutionality is like resting on the peak of laws in the state and as such needs to be done by a body which cannot be influenced in rendering their judgment. The guarantee awarded by the constitution to the judiciary in relation to the organ incharge of constitutionality being a judicial body by nature, brings an issue of looking to see if this organ is independent and impartial in their rulings. However, from the above analyses, the control of constitutionality of laws in Cameroon is worth looking into.

1.5 Research Hypothesis

Ho1    Constitutionality is essential in the application of the Constitution.

Ho2    Constitutionality is not essential in the application of the Constitution.

Ho1    The reason for constitutional control is as a result of the nature and form of

            governance ensured by the constitution.

Ho2     The reason for constitutional control is as a result of the nature and form of

            governance ensured by the constitution.

Ho1     The organ that has the power to rule over Constitutionality and ensure the constitution is

             kept supreme.

Ho2     The organ that does not have the power to rule over Constitutionality and ensure the

            constitution is kept supreme.

Ho1     The mechanism is effective in Constitutional control.

Ho2     The mechanism is not effective in constitutional control.

1.6 Research questions

1. Is constitutionality relevant in the application of the constitution?
2. Why the control of constitutionality of laws in Cameroon?
3. Which organ is responsible for constitutionality in Cameroon?
4. How effective is the constitutional mechanism in the control of constitutionality of

            laws   in Cameroon?

1.7  General Objectives of the study

The purpose of this study is to reveal the nature of the control of the constitutionality of laws in Cameroon. The theory and to an extent, practice of the concept of the concept, the character it takes, the independence and impartiality of the mechanism. The Constitution stands as the law of the land and must be kept superior to all other laws.

1.8 Specific of the study

The objective of this study is to examine the assurance of the supremacy of the constitution over other legal norms and who has the power to rule over conflicts involving constitutional norms and other national laws or statutes.

The study seeks to examine a concept in constitutional law whose scope and application has a public character highly associated with general interest of the will of the people of a state.

This study seeks to;

1. Examine the concept of constitutionality of laws and its control.
2. Examine the reasons for constitutional control.
3. The organ that has the power to rule over such conflicts and ensure the constitution is

             kept supreme.

1. The effectiveness of the mechanism.