The independence of the Judiciary in Cameroon: myth or reality
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This study looks at the independence of the Judiciary in Cameroon. The Cameroon judicial system has undergone a lot of changes from 1961 till date, Cameroon is bi-jural with the English Common law operating in the two Anglophone regions of Northwest and Southwest while the French Civil law, operating in the eight Francophone regions.
The purpose of this research paper is to investigate the concept of judicial independence and to look at the problems faced by the Cameroon judiciary.
Cameroon has good laws such as the penal code, the criminal procedure code, the constitution and other good legislations that reflect its bilingual nature but the issue of judicial independence in Cameroon is always under attack.
In order to come out with a good analysis, the researcher adopted a qualitative research method. Absence of any efficiency control, qualitative and quantitatively account for judicial activities is one of the major problem faced by the judiciary in Cameroon.
Repeal of article 37 of the 1996 constitution According to article 37 in its sub (3), it states the president shall ensure the independence of the judiciary.
He shall appoint members of the bench and that of the legal department. Now we see the irony behind this provision as to the effect that “you cannot bite the fingers that feed you”.
Since the president of the Republic is vested with the powers to appoint members of the bench consequently he has powers to dismiss, suspend at will thus in a real sense, no one will risk his job to go contrary to the wish of the president of the republic since it will be seen as risking your life and your position. The researcher, therefore, propose that article 37 of the constitution should be repealed
1.1 Background of the Study
Cameroon is bilingual and of course bi-jural with the English Common law operating in the two Anglophone regions of Northwest and Southwest while the French Civil law, operating in the eight Francophone regions of Adamawa, Far North, Littoral, North, West, Central, East and South.
These systems of law expanded to Cameroon through conquest. After the plebiscite in Southern Cameroons, its leaders, led by the then Prime Minister, Dr John Ngu Foncha, had tried to negotiate a new constitutional arrangement with the then President of the Republic of Cameroon, Ahmadou Ahidjo, based on a relatively loose and decentralised federation.
However, since they were now fully committed to reunification with the an already independent Republic of Cameroon, the negotiating position of the Southern Cameroons representatives was quite weak.
Ahidjo was under no pressure to make anything more than token concessions and only felt obliged to amend the 1960 Constitution by an annexure called ‘transitional and special dispositions’.
What became the Federal Constitution of the Federal Republic of Cameroon was nothing more than a law revising the Republic of Cameroon’s Constitution of 4 March 1960.
This Constitution brought within the same borders, for the first time, the two people who had lived apart since 1916 and who had gone through two separate colonial experiences, with marked contrasts not only in language, law, administration, and education but also in political culture and attitudes.
The federal system that came into existence in 1961 was based on a two-state federation consisting of West Cameroon, made up of the former Southern Cameroons, and East Cameroon made up of former French Cameroun.
Until the country became the “United Republic of Cameroon” in 1972 when a unitary system of government was introduced, the two federated states had each retained their inherited colonial system of justice although this was under the control of a Federal Ministry of Justice.
However, the early history of the independent and reunified Cameroon was marked by strides towards complete political and legal unification. By 1964, two Federal Law Reform Commissions had been created to draw up a Penal Code, a Criminal Procedure Code and several other Codes.
Its only achievement was the 1967 Penal Code which remains the only reasonably successful legislation that reflects the country’s dual legal culture, although it was substantially based on the French Penal Code.
Based on the unitary Constitution of 1972, Ordinance no.72/4 of August 26, 1972, which has since been amended several times, created a civilian- style unitary system of Courts to replace the different court structures that had operated in the two states.
Nevertheless, article 38 of the Constitution provided for the continuous application of the different laws that were in force in the two legal districts provided these were not inconsistent with any new laws.
As a result of this, despite the unified court structure, the two pre-independence legal systems continued to operate.
The 1972 Constitution has been amended on several occasions, though the most significant and substantial was in 1996 in response to pro-democracy nation-wide strikes and demonstrations that had started in the early 1990s.
Since the reunification of the two portions of Cameroon, successive Constitutions have indirectly sanctioned the co-existence of the English and French legal systems in the country.
With respect to this, the 1996 amendment states in Article 68:“The legislation applicable in the Federal State of Cameroon and in the Federated States on the date of entry into force of this Constitution shall remain in force insofar as it is not repugnant to this Constitution, and as long as it is not amended by subsequent laws and regulations.
Although this Constitution reflected an uneasy compromise between the centralizing policies of President Ahidjo and the desire of Dr Foncha and other Southern Cameroons politicians to retain as much political identity as possible, the federation turned out to be more symbolic than real.
The unitary and highly centralised features of the 1960 French Cameroun Constitution were carried over wholesale into the new federation. On the crucial issue of the distribution of powers between the federal government and the two federated states of West and East Cameroon, the former was totally dominant.
In the final analysis, the federated states were only allowed to act in matters upon which the federal government did not wish to act.
Although Article 4 of the Constitution defined the federal authority as inhering in the President and the Federal National Assembly, as the President was given wide-ranging powers that enabled him to control and dominate all national institutions, this effectively made the federal structure a sham.
The new Constitution formally eliminated the already largely nominal positions of prime ministers in the two federated states as well as the state legislatures.
The powers of the President under the new Constitution were considerably enhanced. When, in 1984, the President by Law No 84/001 abolished the appellation ‘United Republic of Cameroon’ and replaced it with ‘Republic of Cameroon’, this was seen by many as removing one of the last symbolic vestiges of the 1961 reunification.
What is currently in force today in Cameroon is supposedly only an amendment to the Constitution of 2 June 1972 and is officially referred to as ‘Law No 06 of 18 January 1996 to amend the Constitution of 2 June 1972’. The background to this constitutional amendment is important, because it may help to explain the content of the Constitution as well as its underlying philosophy.
The immediate process that led to the amendment started in November 1991 and ended with the promulgation of the law amending the Constitution on 18 January 1996. It started with the convening of what became known as the Tripartite Conference in October–November 1991, as a compromise by the government to calls by the opposition parties, backed by nationwide strikes and demonstrations, for the convening of a sovereign national conference.
In its final declarations, the Conference on 17 November 1991 established a Technical Committee on Constitutional Matters (TCCM), composed of 7 Francophone’s and 4 Anglophones, with a mandate to formulate the outlines of a ‘new’ constitution.
This ultimately led to what is now labelled an ‘amendment to the 1972 Constitution’. Fundamental Principles of the Constitution Cameroon followed the post–1990 wave of constitutional renewals on the African continent by revising its 1972 Constitution.
The expectation was that it would provide a solid foundation for promoting constitutionalism by enhancing democracy, good governance, and respect for human rights.
Most comparative studies that have tried to analyse and compare the Cameroon Constitution to other recently adopted new or revised constitutions clearly indicate that it has done nothing more than reinforcing many of the underlying principles and the philosophy of the original 1972 constitution.
The amended Constitution also appears to provide for a separation of powers marked by what it refers to as “Judicial power.”
The concept of judicial independence is apparently stated in Article 37(2) of the constitution, which provides that “the judicial power shall be independent of the executive and legislative powers.”
In reality, the enormous powers are given to the President of the Republic under the Constitution to appoint, dismiss, promote, transfer and discipline judicial officers, especially judges and prosecutors limits in a fairly significant way not only the independence of the judiciary but also the effectiveness of the separation of powers.
From the above struggle to set up a constitution for the Cameroon judiciary, the translocation of the Common law to Cameroon earlier last century has created differences between the legal tradition of England and France when they originated and that of the Cameroon environment.
Moreover, it is also a novel blend of local and imported laws and international treaties, harmonized and integrated together.
In other words, we are witnessing the emergence of a new species of common plus civil law, as specifically Cameroonian common/civil law defined, fortified and elaborated by local legislation and decisions of Cameroon courts.
1.2 The statement of the problem
Several legal scholars and civil society activist have questioned the independence of the judiciary in Cameroon, the problem here is the dependence of the judiciary of Cameroon.
- Research question
- How and what constitute the judiciary of Cameroon?
- To what extent is the judiciary of Cameroon dependent?
- What are the various problems faced by the Cameroon judiciary and what moves have been taken to tackle the problem?
This study is base on the following hypothesis
The Cameroon judiciary is independent
The Cameroon judiciary has no independence
- Research objectives
The objectives of this research are of two-fold i.e.
1.5.0 General and specific
In the general point of views, this project seeks to critically examine the Cameroon judiciary and compare with other judiciaries in the world
1.5.1 Specific objectives
- The specific objective of this research has to do with the manner in which the Cameroon judiciary is organized and carry out.
- The research seeks to look at judicial independence in Cameroon
- The last objective is to critically examine the problems faced by the Cameroon judiciary