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
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.