: 
Researching
Cameroonian Law
By Charles Manga Fombad
Charles Manga Fombad is a Professor of law in
the Department of Law, University of Botswana. He holds a Licence en Droit
(University of Yaounde), LL.M. and Ph. D. (University of London) and a Diploma
in Conflict Resolution (University of Uppsala). He was, from 2003-2006,
Professor Honorarius of the
Department of Jurisprudence, School of Law, University of South Africa.
Professor Fombad is the author of 4 books and has published more than 45
articles in international refereed journals, more than a dozen book chapters as
well as numerous other publications and conference papers. In 2003, Professor
Fombad received the Bobbert Association Prize for the best first article in the
Journal for Juridical Science. He was
also awarded the Wedderburn Prize in
2003 for a paper that appeared in the “Modern Law Review.” In two successive
years, 2004 and 2005, he received a special commendation from the University of
Botswana Research Awards Committee for research excellence. He has been a
member of the editorial board of several international journals. He is
presently the founding editor-in-Chief of the “University of Botswana Law Journal” and Consultant Editor of the “BIAC Journal of Business, Management
and Training.” Professor Fombad
teaches several courses at the undergraduate and postgraduate level. His
research interests are in legal history, torts, media law, constitutional law,
and international law.
Published June/July 2007
Table of Contents
Current Court System Structure
Legal research guides, legal
web sites directories, law lists, libraries’ and legal citation guides
Selected Bibliography of Cameroonian Secondary Law Books
Cameroon, with a total land area
of 475,440 square kilometers, is located in Western Africa, bordering the
Atlantic Ocean, Equatorial Guinea, Gabon and the Republic of Congo to the South,
Central African Republic and Chad to the east, Lake Chad to the north and
Nigeria to the west. The population of 17,340,702 million (2006), is made up of
an extraordinary diversity of about 250 tribes speaking at least 280 different
indigenous languages. To this complex mix is superimposed a bi-cultural
division between a minority Anglophone community from the former British trust
territory of Southern Cameroons, who make up about 20% of the population and
occupy two of the ten administrative provinces in the country, and a dominant
Francophone community from the former French Cameroun who make up 80% of the
population and occupy the rest of the eight administrative provinces. The
English and French languages are constitutionally recognized as the official
languages, though most official communications are usually in the dominant
French language. However, Pidgin English, a common lingua franca in English-speaking
West Africa, is widely spoken in the Anglophone provinces and in some of the
major towns in the Francophone provinces which have a substantial Anglophone
community.
The Portuguese are considered to
be the first Europeans who arrived on Cameroon's coast in the 1500s, but
malaria prevented any significant settlement and conquest of the interior until
the late 1870s. The country's name is derived from “Camaroes,” meaning shrimps,
so-called by the Portuguese explorer Fernando Po, who named the River Wouri “Rio
dos Camaroes" (Shrimp River), after the many shrimps. However, it was at
the Berlin Conference of 1884 that all what is now Cameroon and parts of
several of its neighbors became the German colony of “Kamerun.” Their presence
lasted until 1916 when, during the First World War, a combined British and
French expeditionary force defeated the Germans in Cameroon and proceeded to
divide the territory into two unequal parts. The British took control of two
disconnected portions which they labeled Northern and Southern Cameroon
respectively, whilst the French took the larger portion, constituting about
four-fifths of the territory. This
arbitrary division was later recognized by the League of Nations which
conferred mandates on there two powers to administer the territories on June
28, 1919. The mandates were later superseded by trusteeship agreements on the
creation of the United Nations in 1945. The British administered their portion
as part of their neighboring colony of Nigeria whilst the French made theirs
part of their colony of French Equatorial Africa. In a UN-conducted plebiscite
of February 11, 1961, Southern Cameroon voted in favor of gaining independence
by reuniting with the French Cameroun, which had already become independent on
January 1, 1960, whilst Northern Cameroon voted in favor of remaining as part
of Nigeria. On September 1, 1961, the Southern Cameroon and the newly
independent French Cameroun were formally reunited as the "Federal
Republic of Cameroon."
The legal system, like most in
Africa, is a relic of the colonial era. However, it is unique in that it consists of two distinct and often
conflicting legal systems, the English common law and the French civil law
operating in some sort of tenuous coexistence. This makes Cameroon one of the
few examples of such a dual legal system in the world.
Three major periods can best
explain the nature and evolution of the legal system namely, the pre-colonial,
the colonial and the post-independences periods.
In the pre-colonial Cameroonian
society, there existed diverse unwritten indigenous laws and usages which
applied in varying degrees to the different ethnic groups. The only exception
was in the north where the Foulbe tribes, who originally invaded the territory
from North Africa in the early nineteenth century, had introduced Islamic laws.
Despite the differences in the structures, content and institutions which
applied these indigenous and Islamic laws or traditional laws as they are
referred to today, there were many similarities. A German attempt to ascertain
and codify the different traditional laws was frustrated by the outbreak of the
First World War, but the results from the six tribes that were studied showed
that there were substantial similarities in basic concepts and practices. The
traditional system of justice was administered by a series of ad
hoc bodies ranging from the family head, quarter head, chief and the
chief’s council. Perhaps the most remarkable and controversial aspect of this
system of justice was the extensive use of trial by ordeal. The commonest
examples of this involved drinking poisonous concoctions, putting the hands in
boiling palm oil or water, or holding
a red-hot iron bar. If the accused came to no harm, then his innocence
was considered as proven.
During the German colonial period,
a rudimentary system of administration was established. Two parallel systems of
Courts, one exclusively for Europeans where German law was applied, and the
other exclusively for Cameroonians, where traditional law under the control and
supervision of the Germans was applied.
The League of Nations’ agreement
with the French and British conferred on these two powers, in Article 9, “full
powers of administration and legislation.” The two powers were authorized to
administer Cameroon in accordance with their laws and as an integral part of
their territory, subject to such modifications as may be required by the local
conditions. This was the basis for the almost wholesale exportation of the
English common law and the French civil law to Cameroon. There were significant
differences in the policies they pursued in introducing their respective
systems of justice. The British, like the Germans and French, also operated two
parallel systems of courts, but unlike them, this was not separated on racial
lines. One structure was for the traditional sector of the population, mainly Cameroonians,
and the other was for the modern sector, mainly Europeans or those Cameroonians
who opted for it. The applicable law was based on Section 11 of the Southern
Cameroons High Court Law (SCHCL), 1958, which provided for the application of
English common law, the doctrines of equity and statutes of general application
which were in force in England on January 1, 1900. On the basis of this, a
number of English statutes as well as Nigerian laws and Ordinances were made
applicable to Southern Cameroons. Through the system of “indirect rule,”
traditional institutions and laws were retained provided they were not
repugnant to natural justice, equity and good conscience or incompatible with
any existing laws. In French Cameroun, the French in line with their policy of
assimilation made a strict distinction between citizens, who were defined as
either French nationals or Cameroonians who had evolved and were honored with
that status (and there was hardly any), and the ordinary Cameroonians who were
derogatorily referred to as “sujet”(indigenous people). Based on this, two
systems of justice were administered; one for the Cameroonian population in
accordance with traditional laws, and another, for French nationals in
accordance with French law. French administrators presided over the traditional
courts and used the local chiefs and notables merely as assistants or
assessors.
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 the 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.”
The Cameroonian legal system can
therefore be described as bi-jural in which French law applies in the eight
French speaking provinces and English law substantially applies in the two
English speaking provinces, although most of the uniform laws that are now
being introduced are essentially based on French legal concepts.
The legal system as well as the sources of law
applicable in the country has been significantly shaped by the dual
English-French colonial legal heritage that has given rise to its dual legal
system in the country. The main sources of Cameroonian law are the
Constitution, legislation, judicial precedents and customary law.
Since independence and the
reunification of the former British Southern Cameroons and the French Cameroun,
the country can be said to have had at least three different Constitutions and
numerous constitutional amendments. What can be considered to be the first
Constitution was in reality the Constitution under which French Cameroun became
independent on 1 January 1960. The second Constitution was in reality simply an
amendment of the 1960 Constitution of the French Cameroun in 1961, when the
British and French administered parts of the country were reunited and was
styled as the Constitution of the Federal Republic of Cameroon, which ushered
in a highly centralized federal system. On 2 June 1972, after a referendum, a
new unitary Constitution was adopted and the name of the country was changed to
the United Republic of Cameroon. In 1984, the appellation “United Republic” was
replaced with “Republic.” What is currently in force is this 1972 Constitution
although it was substantially amended in a rather controversial manner in 1996
with a new text of 69 articles replacing the old text of 39 articles.
Although not explicitly so-stated,
the Cameroonian Constitution is treated as the supreme law of the land. Article
2(1) vests national sovereignty in the people who exercise this either through
the President of the Republic and members of Parliament or by way of
referendum.
The Cameroonian Constitution distinguishes between
parliamentary power to legislate (le pouvoir législatif) in Article 26
and the governmental power to issue rules and regulations (le pouvoir
réglementaire) in implementation of parliamentary legislation in Article
27.
Article 26 is the principal
provision in the Constitution that specifies in considerable details the scope
of the Cameroon Parliament’s legislative competence. This article, in broad
terms, identifies six areas that fall within the reserved legislative domain (domaine
de la loi).
The parliamentary power to
legislate has been complimented by governmental power to issue regulations in
implementation of such legislation. Express governmental intervention in the
legislative domain under the Cameroonian Constitution is provided for on two
different occasions. The first is provided for by Article 27, which states that
“matters not reserved to the legislative power shall come under the
jurisdiction of the authority empowered to issue rules and regulations.” This
has the effect of giving the Government the right to enact “laws” in its own
right by way of “rules and regulations” in all matters not reserved for
Parliament under Article 26. The President of the Republic (Article 8(5)), the
Prime Minister (Article 12(3), and a host of other government officials share
this general power to issue rules and regulations. The second major instance of
governmental intervention is provided for in Article 28 of the Constitution.
According to this provision, Parliament may, on matters falling within its
reserved legislative domain, “empower the President of the Republic to
legislate by way of ordinance for a limited period and for given purposes.” To
be valid, such ordinances must be tabled before the bureau of the National
Assembly and the Senate for purposes of ratification within the time limit laid
down by the enabling law.
Unlike legislation, the role of judicial precedent as
a source of law in Cameroon depends on whether one is in the English speaking
Anglophone or French speaking Francophone provinces of the country.
The English legal system on which
the law applied in the Anglophone provinces is based treats judicial precedent
differently from the way the French civil law on which the law applied in the
Francophone provinces is based. The English law doctrine of binding precedent
or stare decisis under which judicial precedent is a major source of law
was received in the Anglophone provinces as part of the general reception of
English law. Its actual operation to render judicial precedent an effective
source of Cameroonian law is however subject to the complexities of the
judicial organization of the courts in the country.
The courts within the country
operate within a unified but decentralized court structure at the summit of
which is a single Supreme Court for the whole country that operates more like
the French Cour de Cassation rather than an English Court of Appeal. The
highest court within each of the provinces is the Appeal Court. For the two
Anglophone provinces, the doctrine of binding precedent operates in the sense
that the precedents laid down within each province constitute binding authority
within that province. However, judicial precedent as a binding source of law in
the English provinces plays but a rather limited role because of the “provincialized”
system. Although appeals may be taken from the Court of Appeal to the Supreme
Court, these are not usually handled as appeals in the strict sense of the word
and the decisions taken by the Supreme Court are at best only of persuasive
authority. To this extent, whilst judicial precedents remain important source
of law in the Anglophone provinces, because of the way the courts are
structured and actually operate, it may not be as significant as it should have
been.
Generally, the attitude towards
judicial precedent in Francophone Cameroon is different. Judiciary precedent is
not regarded as a primary source of law. However, precedents, especially of the
superior courts, although not strictly binding, are of highly persuasive value in
the Francophone courts.
As
pointed out earlier, in pre-colonial Cameroon, there existed a wide variety of
what is today known simply as traditional or customary law. In this regard, the
Moslem law that was in place in large areas of the northern part of the country
was also treated as part of customary law. Both the British and the French recognized
and enforced customary law. However, not every custom or usage was recognized
and enforced as customary law. For example, in Anglophone Cameroon, section
27(1) of the Southern Cameroons High Court Law, 1955, provided for the
recognition and enforcement of only customary law which is not repugnant to
natural justice, equity and good conscience or incompatible either directly or
by implication, with any existing law. Generally, today in Cameroon, customary
law has very limited application. It only applies to certain persons and
governs only a few matters. It applies only to persons traditionally subject to
it, effectively meaning the rural population and even then, only if they desire
that this law should regulate their relationship. The only exception to this is
in the northern part of the country, where sharia law and sharia courts still
play a large part in regulating the lives of rural people.
Whilst laws
enacted by Parliament and some subsidiary legislation are published in the
Official Gazette of the Republic of Cameroon, which is printed by the National
Printing Press, there is no regular and efficient system of law reporting in
Cameroon. Since the 1960s, a number of short-lived but commendable efforts in
this direction have been started but quietly abandoned.
The Bulletin des Arrêts de la Cour Suprème,
begun in 1960, appeared only sporadically. François-Xavier
Mbouyom’s collection of administrative cases from 1962 to 1975 was essentially
a private venture that was not very authoritative. The series, “West Cameroon
Law Reports,” ceased publication after just three volumes; 1962-1964,
1965-1967, and 1968. Despite its stated objective to continue from where these
stopped, “The University of Yaoundé Law Reports,” appeared only once, in 1985
and covered cases decided between 1968-1970 and 1971-1973. The most recent
attempt, the “Cameroon Common Law Report,” that started in 1997 appears only
sporadically. A number of decided cases were reported in two journals that
appeared in the 1990s, viz the Lex Lata,
and the Revue de Legislation et de
Jurisprudence Camerounaise.
The courts in the country can be
divided into two main categories viz, courts with ordinary jurisdiction and courts
with special jurisdiction. The former, have powers to hear all matters, such as,
civil, criminal and labor disputes. Safe for the Supreme Court which has
jurisdiction over the whole national territory, the ordinary courts are highly
decentralized. Within this category there are two types. The first are courts
which have original jurisdiction in the sense that they have the power to hear
matters at first instance. These consist of:
·
Traditional Law Courts, which operate at village or
tribal level
·
Magistrates' Courts, which operate at sub-divisional
level, although they usually cover several subdivisions, and
·
High Courts, which operate at divisional level, but
they also often cover several divisions
The second consists of courts with
appellate jurisdiction. While the High Court has limited appellate
jurisdiction, the main appellate courts are the Court of Appeals which are
located in the headquarters of each of the ten provinces. The Supreme Court
sometimes operates as an “appellate” court, in the sense that it can quash, on
an application to it, a judicial decision which it considers to have mistakenly
interpreted the law. It does not decide the matter itself, but usually
instructs a lower court of similar standing to the one from which the matter
came to do so. Nevertheless, the Supreme Court has exclusive jurisdiction over
all administrative, institutional and constitutional disputes in the country.
Since it is usually saddled with a heavy backlog of administrative and
institutional disputes, and has generally been slow and inefficient, a party
who “appeals” a matter from the provincial Courts to it usually does so more to
delay and frustrate the other party than to achieve anything else.
Courts with special jurisdiction
deal with either specified matters provided for by law, or a particular class
of persons. Besides the Constitutional Council, the amended Constitution also
provided for the creation of a set of Administrative and Audit Courts decentralized
along the lines of the ordinary courts. With the perennial problem of shortage
of qualified personnel, it is not surprising that no steps have been taken to
create any of these courts. Perhaps, the most that can be expected is that,
administrative and audit matters could be added to the list of matters which
the ordinary courts handle. However, three Courts with special jurisdiction
operate. First is the Court of Impeachment, which has powers to try the
President for treason, and ministers as well as some senior pubic officials for
conspiracy against the security of the state. Second, there is the Military
Court located in Yaoundé. Its jurisdiction is defined in such broad and vague
terms that civilians have been brought and convicted by it in circumstances
where their cases would have been dismissed by the ordinary criminal courts.
Finally, there is a State Security Court that has exclusive jurisdiction to try
felonies and misdemeanors against the internal and external security of the
state and related offences.
The Ministry of Justice directs,
coordinates and supervises Government policy with regard to the administration
of justice as well as oversees and supervises its key actors. The latter are
made up of persons who dispense or demand justice, such as judges of the bench
and prosecuting judges and the auxiliaries of justice who ensure the smooth
operation of the administration of justice by either assisting the judge, for
instance Court Registrars and judicial police officers, or assisting the
parties such as, advocates and notaries.
The judges who preside over
Traditional Law Courts are usually appointed by the Minister of Justice from
notables and other persons knowledgeable in the customs and traditions of the
area to be served. Other judges are appointed from persons with at least a
Master's degree in law who have undergone a two- year training at the National
School of Administration and Magistracy (ENAM) in Yaoundé. Entry into the
school is by competitive examination, and on graduation, the intending judge
may be appointed either to the bench or to the prosecution department. As a
career profession, a judge’s progress depends on seniority and the ability to
impress senior judges, although increasingly, political loyalty and reliability
is beginning to count.
An intending advocate must be a
Cameroonian with a law degree who has obtained a certificate of proficiency to practice.
This certificate is issued only after two years of pupilage followed by passing
a qualifying examination. All advocates are members of the Cameroon Bar
Association which amongst other things maintains discipline amongst members of
the profession.
As regards the auxiliaries of
justice, Court Registrars who are appointed after studies in ENAM, assist
judges by authenticating their acts as well as keeping a minute’s book in which
they record all incidents which take place during judicial hearings. Judicial
police officers, who may be either police or gendarme officers, help the judge
in carrying out criminal investigations .Besides advocates, other auxiliaries
of justice who are primarily there to assist the parties in legal proceedings,
include; notaries who draft legal documents which are then regarded as
authentic and enforceable; process-servers who are responsible for judicial and
non-judicial notifications, and; auctioneers who appraise and value property
for sale.
Since
1972, Cameroon has had a strong centralized system of government dominated by
the President. This was reinforced in the 1996 amendment to the 1972
Constitution.
The
President of the Republic is head of state and although the Prime Minister is
described by the Constitution as the head of government, he is actually
appointed and serves at the pleasure of the President of the Republic and is
responsible for implementing policies laid down by the former. Since 1996, the
president is elected to serve a term of 7 year, renewable once. He is empowered
to name and dismiss cabinet members, judges, generals, provincial governors,
prefects, sub-prefects, and heads of Cameroon's parastatal (about 100
state-controlled) firms, obligate or disburse expenditures, approve or veto
regulations, declare states of emergency, and appropriate and spend profits of
parastatal firms. Although the
amended Constitution also provided for a certain degree of decentralization of
powers, these as well as many other provisions have remained a dead letter.
Administratively, the country is divided into 10 provinces, 58 divisions and
349 sub divisions, the heads of which are appointed by the President.
The
amended Constitution provides for a bicameral Parliament made up of the
National Assembly and the Senate. So far, only the National Assembly, made up
of 180 members, elected for a term of five years has been established. It meets
briefly three times each year – in March, June and November. Since 1990
when political opposition was legalized, the parliament now has representatives
from some of the more than 168 opposition parties that exist in the country. However,
the former one party, the Cameroon People’s Democratic Movement (CPDM)
virtually dominates parliament. Although parliament is the main legislative
authority, because of the dominance of the executive, it merely rubber-stamps
legislation put before it by the executive.
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 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.