THE SEPARATION OF POWERS

This chapter of the essay writing we shall focus on analyzing he different arms of the government structure which together gives a clear picture on how separation of powers work, its functions and if possible its sources.

The interaction shall take a mix form through discussing the arms in other states and linking it with political jurisdiction of Cameroon.

The function and powers of the state can be divided into three. It should be noted that though this organs help in defining state functions it is not without controversy no doubt some commentators have asked if it was really possible to separate this function definitively.

2.1 THE EXECUTIVE ARM OF GOVERNMENT

This is a facet of the principle of separation of power. The executive may be defined as that branch of the state which formulates policy and is responsible for its execution. In formal terms, the sovereign is the head of the executive. The Prime Minister, Cabinet and other ministers, for the most part, are elected Members of Parliament.

In addition, the Civil Service, local authorities, police and armed forces, constitute the executive in practical terms. The function is performed by the government or administration.

The executive carry out the functions contained in general legislative provisions. The executive is one of the most difficult to define that is why it is most often called the residuary class define only after the legislative and judiciary have been outlined and demarcated. The executive in general term executes the law as it carries and implements it and the term executive can mean the following in the United Kingdom

• Sovereign as the nominal head of the executive
• The majesty government comprising of prime ministers cabinet, junior governmental ministries
• The arm force and the police who carry out and implement the law on practical bases

From the point of view in Cameroon the executive is that organ which is solely responsible with the enforcement of the laws that have been passed by the legislative in the name of the parliament and applied by the judiciary constituting of the tribunal.

The executive arm of government is considered an overall most powerful of the other three arms. The executive rest with the president of the republic H E President Paul Biya who is heard of state, heard of government, chief in command of the arm forces, heard of the judicial council.

The heard of state has since occupied this position from 6 November 1982. He was voted into office for a seven years mandate renewable once upon it expiry he applied to run again as provided in article 6 paragraph 2 of the new constitution of 14 April . the government of Cameroon as part of the executive comprise of the prime minister Dion Ngute other ministers and officials such as governors, district heard, prefect and sub prefect all of whom are appointed and controlled by the president who heard the government.

Pursuant to the 1976 constitution as amended by the 1996 reform provides for a greater and dominant government dominated by the executive. The president of the republic has wide powers he has powers to appoint and dismiss cabinet members, ministers and members of government like governors, Generals and to declare a state of emergency.

He needs no formal address or permission from parliament to act when he feels that he is acting within his scope of duties and feels it is right thing to do. No doubt went the 2008 constitutional amendment was passed to abolish terms limits for the office of the president.

The executive arms of government has as function the following bulleted point bellow

• To ensure peace and order throughout the nation
• To enforce and execute the decisions of the legislative and judiciary arms of government
• To ensure general administration of the nation
• To negotiate and or to ratify international treaties
• To enact regulatory laws by virtue of of article 27 of the 1996 constitution

2.2 THE LEGISLATIVE ARM OF GOVERNMENT

This unique function is performed by the legislature and it involves the enactment of general laws. The queen in the U K parliament represents the law maker. Similarly in the republic of Ireland the Oireactas is the law maker [7]and is the law making body. The [8]judiciaries decide which laws are suitable for the nation. Pursuant to ‘article 14 of the 1996 constitution (law number 96/o6 f 18 January 1996)’ the legislative power rest with the parliament which consist of  the national assembly and the senate with the national assembly comprising of the parliament (lower house) comprising a total member of 180 voted for a five years mandate provided by article 15 of the above amended constitution while the senate (upper house) comprise of a total of 100 members 70% of whom are to be elected by the people and 30% percent to be appointed by precedential decree. The senate was the creation of the 1996 Constitution. Even though multi- party election have held since 1992, the Cameron people democratic movement CPDM has always retained the majority of seats at the national assembly hence it continues domination as most people like me are likely tempted to say that the assembly in essence operates as a mechanism to achieve Biya’s policies. The president of the national assembly is the ever CAVAYE YEGUIE DJIBRIL

     As mentioned before the senate is the creation of the 1996 constitution though  from then no election was held pertaining to that until in 2013. The senate’s represent the 10 regions of the country with the first senatorial elections conducted in April 14 2013 with the appointment taking place on two face with the electoral college of 9,887 councilors who elect 70% senators and 30% appointed by the president with five years term of office. Of note is that the first president of senate goes by the name Niat Njifenyi who was officially elected on the 17 June 2013. The executive organ has some roles highlighted bellow

• The role of legislation(law making) and control of government action
• Control of execution of state budget
• Execution of micro project
• Empowered to initiate impeachment proceedings against the head of state for the offense of treason

2.3 THE JUDICIAL ARM OF GOVERNMENT

‘In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and from the executive power’. This arm of government has the responsibility of applying the law which has been passed down by the legislative organ.

They make sure that the law is applied as it is and not as it ought to be. Judges of the judicial bench are appointed by the president upon the advice of the judicial council even though he seats tall as the heard of the judicial council and only assisted by it.

Article 37 of the 1996 constitution provides that the judiciary is very much independent from the legislative and the executive. The president is the guarantor of the independence of the judiciary. 

Article 37 of the 1996 constitution as amended by the 2008 laws provides that ‘justice shall be administered in the territory of the republic in the name of the people of Cameroon.’ 

The judge shall be guarded first by the law and then his conscience in so administering judgment. Cameroon before today still experience he professional and lay judicial adjudication with the latter constituting customary courts and labor courts while the former comprise of the supreme court located at the nation’s capital Yaoundé, the high court located at each region s of the country and the courts of first instance available at the sub regions of the country why not special courts like military tribunal to try military related offences. The judicial arm of government equally has some roles such as

• To interpret and apply the laws of the land
• To apply and make sure justice strict sensor is applied and
• To enhance equality throughout the nation.

However, countries incorporate the principle of separation of power in their constitution in an effort to meet several goals, the most important of which is to minimize government induce tyranny.

Specifically countries that make this principle part of their constitutional practice intern to limit public servants by national laws and institution by enhancing government accountability, minimize opportunist behaviors by civil servant and politicians, provide for checks and balance and generally improve government efficiency .

Cameroon like many other African countries that transition to democratic governance in the early 1990s incorporate the principle of separation of powers in it amended 1996 constitution.

However Cameroonians have not ripped any of the benefits associated with the practice of the doctrine. Part of the problem is that in Cameroon, this is not a prominent feature of constitutional doctrine.

It is simply an abstract constitutionally construct that has no practical application to the country.

To make this principle relevant to constitutional practice in Cameroon requires state reconstruction through democratic constitution making to provide institutional arrangement that allows for a true separation of power as well as mechanism that enhance it practice

                 Separation of power can be defined as ’Constitutional allocation of the  legislative, executive and judicial powers among three branches of government’ .each  which has specific power upon which neither of the powers an usurp.

This checks and balances are given large credit for the prevention of a tyrant ever ceasing power in this country.

In 1961 the republic of Cameroon ( the former UN trust territory of Cameroon under French administration which had gained independence in 1960) united with the former UN trust territory of Southern Cameroon under British administration to form the Federal Republic of Cameroon.

the constitution of the new Federation was slightly amended version of the constitution that brought French Cameroon to independence in 1960., the Foumban accord, as the 1961 constitution was called retained the Gaullist political system with an imperial presidency with virtually no limit on the exercise of government agency which had been establish by 1960 constitution.16 in 1972 a unitary constitution was adopted in Cameroon and the Federation effectively abolished and the name of the country changed from the Federal republic of Cameroon( Republique Federale du Cameroun)to united republic of Cameroon(Republique Unie du Cameroon) with the latter considered a unitary state.

In 1984 Paul Biya who had taken over from Ahidjo as president dropped the appellation ( United) from the countries name and hence today the elite driven non participatory process that brought forth the 1960 constitution.

Cameroon has not engaged in any form of robust constitutional discuss to produce laws and institution that guarantee the rule of law.

In fact the countries present constitution, the 2008 constitution is basically the 1972 constitution The amended Cameroon constitution provides for the separation of powers and specifically state that ‘judicial powers shall be independent of the Executive and Legislative powers’.

the reality in Cameroon as will be discussed in this work is that due to enormous powers granted the president of the republic under the constitution to ‘guarantee the independence of Judicial power’ as well as ‘appoint dismiss promote, transfer and discipline Judicial officers especially judges and prosecutors limit in a fairly significant way not only the independence of the judiciary but also the effectiveness of the separation of powers’ political economy in Cameroon, like that in many other African  countries has been marked by personal rule which has been made possible by the imperial presidency established by the 1960 constitution.

Since reunification in 1961, Cameroon has been led by two executives and essentially one political party the Cameroon National Union (CNU) whose name was changed to the Cameroon Peoples Democratic Movement(CPDM) after Paul Biya took control over the presidency.

The question to ask here is; is there a real effective practice of the separation of powers in Cameroons governance system or is it what is provided by Cameroons 1996 constitution

( as amended by law no 2008/001 of 14 April 2008) simply an abstract that does not relate to what actually happened In Cameroon today?

Never the less it should be noted that there are laws which are are put in place to help the smooth running of the principle of separation of power this laws range from the laws of the land that is the constitution, also the penal code has been of relative help and serve as part and parcel of the laws which governs the principle, equally not forgetting laws on Judicial organization relating to separation of powers in Cameroon.

As per the Cameroons constitution we have article 13 which reechoes the doctrine of separation of powers in Cameroon

Article 14 which talks about legislative power that looks at the parliament consisting of the National assembly and the Senate

Article 37 provided that the judiciary is very much independent from the Legislative and Executive

As per the penal code, This sections are sections 125, 126, and 127. According to section 125 of the penal code it stipulates ‘any public servant who’

1. Assumes the exercise of legislative power or
2. Refuses to enforce any provision of the law will be punished with detention of from 6 months to five years

Also according to section 126 of the penal code ‘whoever’

1. a) Being the representative of the executive authority issues orders or prohibition to any court or
2. b) Being a legal or judicial officer issuing any order or publication to any executive or administrative authority will be punished with detention of from more than 6 months to 5years

Not forgetting article 127 of same penal code ‘any judicial legal or administrative officer who goes contrary to any law conferring immunity, prosecution, and  arrest trail a member of the federal assembly shall be punished with imprisonment of  from 10 months to five years.

The sanction and the penal code was a typical struggle to apply the original French concept of separation of powers.