UPDATE: Researching Cameroonian Law
By Charles Manga Fombad
Charles Manga Fombad is a Professor of law and Head of the Comparative African Constitutional Law, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria. He holds a Licence en Droit (University of Yaoundé), 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 8 books and has published more than 80 articles in international refereed journals, more than two 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.” For three years, 2004, 2005 and 2007, Professor Fombad received the special commendation award from the University of Botswana Research Awards Committee as runner up on each occasion to the University Researcher of the Year. He is a member of the editorial board of several international journals. He was the founding Editor-in-Chief of the “University of Botswana Law Journal” (2005-2009) and Consultant Editor of the “BIAC Journal of Business, Management and Training.” Professor Fombad’s research interests are in legal history, torts, media law, comparative constitutional law, and international law.
Table of Contents
4.1. The Constitution
4.3. Judicial Precedent
4.4. Customary Law
4.5. Law Reporting
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 23,109,871 (January 2015 estimates), is made up of an extraordinary diversity of about 250 tribes which spoke least 285 different indigenous languages (280 of which are living and 5 extinct). 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 regions 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 regions. 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 regions and in some of the major towns in the Francophone regions, 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 the 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 an 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.
Four major periods can best explain the nature and evolution of the legal system namely, the pre-colonial, the colonial, the post-independence period until 1996 and the post-1996 period.
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 regions and English law substantially applies in the two English-speaking regions, although most of the uniform laws that are now being introduced are essentially based on French legal concepts.
The fourth period in the development of Cameroon’s legal system can be said to have started on 1 September 1996 when the OHADA treaty (OHADA is the acronym for the Organisation pour l’Harmonisation en Afrique du Droit des Affaires, or in English, the Organisation for the Harmonization of Business Law in Africa) signed in 1993 by fourteen African countries, including Cameroon, came into force. Whilst from a constitutional perspective, the Cameroonian legal system remains bi-jural in the sense that the two distinct legal districts continue to co-exist, the coming into effect of the OHADA system seems to mark the beginning of a terminal decline of the common law legal culture in Cameroon. It has brought about at least three significant changes to the nature of the legal system. First, until the OHADA treaty came into force, the principles of English commercial law applied to all business and commercial matters in the Anglophone legal district whilst the French Commercial Code applied in the Francophone legal district. Since 1996, all business and commercial law matters are governed by the new regime set up under this treaty. According to article 10 of the OHADA treaty, the Uniform Acts automatically and directly repeal all existing legislation and supersede any future legislation on the same subject. Under this new regime, there are eight Uniform Acts that deal with commercial matters in Cameroon viz., general commercial law, commercial companies and economic interest groups, securities, simplified recovery procedures and enforcement measures, collective insolvency proceedings, arbitration, accounting law and carriage of goods by road. Secondly, since these Uniform Acts are substantially based on French civil law, it means in practical terms that the English commercial law principles, which previously applied in the Anglophone legal district, have now been replaced by French inspired commercial law principles. Finally, in spite of the article 31(2) of the Constitution stating that French and English are the official languages and the practice that laws take effect only when published in both languages, the OHADA Treaty and Uniform Acts were until recently only published in French and in fact, article 42 of the treaty stated that the working language was French. The introduction of the OHADA system, which ignores the bilingual and bi-jural nature of the country, has been viewed with considerable suspicion by the minority Anglophone speaking population who see this as part of a broader assimilationist and “Francophonization” agenda designed to eliminate all aspects of their inherited English culture. Some have not only questioned its constitutionality but even at some stage, some judges have controversially refused to recognize or apply some of the Uniform Acts until they were threatened with dismissal by the Minister of Justice. Be that as it may, it is clear that the future of the English common law in Cameroon’s mixed system as a result of these developments is uncertain.
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. In March 2008, 6 articles of the 1996 Constitution were amended. The most significant of these amendments is article 6(2) which removes the two-term limit and for which more than 100 people died in clashes with the security forces when they protested against this amendment.
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 the 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.
Generally, all laws are conceived and enacted in French and based on civil law concepts and techniques and then subsequently translated into English. The English translations are often poor and inaccurate and this difficulty is often compounded by a litany of contradictions in the translated text.
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 regions of the country.
The English legal system on which the law applied in the Anglophone regions is based on treats judicial precedent differently from the way the French civil law on which the law applied in the Francophone regions 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 regions 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. However, section 35(i) of Law No 2006/016 of 2006 provides amongst the grounds for appealing a decision to the Supreme Court, the non-compliance with the jurisprudence of the Supreme Court when ruling in a “panel of joint divisions of a bench or of joint benches.” This indicates that the decisions rendered by the Supreme Court are only binding on lower courts when this was taken by a joint division of a bench or joint benches.
The highest court within each of the regions is the Appeal Court. For the two Anglophone regions, the doctrine of binding precedent operates in the sense that the precedents laid down within each region constitute binding authority within that region. However, judicial precedent as a binding source of law in the Anglophone regions plays but a rather limited role because of the “regionalized” 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, subject to section 35(i) of the 2006 Law referred to above, are at best only of persuasive authority. To this extent, whilst judicial precedents remain an important source of law in the Anglophone regions, 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. Subject to the modifications introduced by section 35(i) of the 2006 Law, 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 Muslim 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. Since independence, the evolution of customary law in the two legal districts of the country has been slightly different.
In the Anglophone regions, the recognition and enforcement of customary law is subject to a repugnancy test laid down in a pre-independence statute, section 27(1) of the Southern Cameroons High Court Law, 1955, which provides 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. There are also Alkali Courts for Muslims which apply Sharia law. These Customary Courts are trial courts specialized in matters which are reserved for customary law such as, decisions on who is next-of-kin, some matters of status of persons, and customary divorce (Law No 89/017 of 28 July 1989). Appeals from the decisions of these Customary Courts go directly to the Court of Appeal. Although they are independent and not under other lower courts, the President of the Court of First Instance of the place where the court is located ensures the administrative functioning of the court as well as the provision of materials for running the court. The judges and elders versed in the traditions of each tribe (for the Customary Courts) and Islam (for the Alkali Courts) are appointed by the Minister of Justice upon the recommendation of the President of the Court of First Instance and the Senior Divisional Officer. Today in the two Anglophone regions, customary law has very limited application. 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 major difference between Customary Courts in the Francophone Regions and those in the Anglophone regions is that the Courts in the latter are made up of two types. There is first, the Tribunal de Première Degré which was created in 1959 in the then Republic of Cameroon (before reunification of the two parts). The president of this court is a Magistrate sitting with community elders who are experts in the customs and traditions of the place where the court is sitting and act as assessors. This court has jurisdiction in matters which fall within the competence of the Court of First Instance and the High Court (generally issues of civil status except those dealing with adoption, divorce, recognition and succession). Decisions of this court go to the Attorney-General (Procureur Général) of the region in which the court is located for formal validation before the decision can be executed or appealed against. The second type is the Tribunal Coutumier which is presided over by the Divisional Officer of the seat of the court and is assisted by two elders from the community acting as assessors. The court has jurisdiction over matters relating to property and commercial transactions. The decisions of the court can only be enforced or appealed against after they have been confirmed by the Attorney-General (Procureur Général). Generally, the presence of career magistrates and professional lawyers in customary courts in Francophone Cameroon has become so rampant that these courts mostly apply modern law rather than customary law. Because of their jurisdiction to deal with many civil matters such as actions for recovery of civil and commercial debts and other contractual and tortuous claims, these courts have become the preferred means of resolving civil disputes. It is now clear that the distinction between customary courts and modern courts in this part of the country has become increasingly blurred. 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 Reports,” 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.
At present, cases from the Anglophone courts are only reported in the “Cameroon Common Law Reports, which is essentially a private initiative of a private law firm. In the Francophone region, cases are reported in “Juridis Périodique: Revue de droit et Science Politique,” which is also a private initiative. On the whole, the reporting of judgments in Cameroon is erratic and poor. Even access to judgments is sometimes a challenge because they are sometimes handwritten and the records in the archives are poorly kept.
The current court structure was adopted in 1972 and amended by Law No 2006/015 of 26 December 2006 and most recently Law No 211/027 of 14 December 2011. Before then, the structure of courts had remained largely the same as they had been during the British and French rule. In other words, the English Common law as well as English-style legal institutions continued to operate in the Anglophone legal district whilst the French Civil law and French-style legal institutions continued to operate in Francophone legal district.
Nevertheless, the impulse for unifying and harmonising the legal system in the whole country had already manifested itself very strongly shortly after the reunification of the two parts of the country in 1961. As early as February 1964, two federal law reform commissions had already been set up – the Federal Commission for Penal Legislation and the Federal Commission for Civil and Customary Legislation. There were also attempts to unify the system of administration of justice in both legal districts of the country. The first such attempt was made in 1969 with the reform project known as l’avant projet Comte-Quinn. The change to a unitary system of government, a few years later, in 1972, made it much easier for the political objective of unifying the two systems of justice to be achieved. The first step in this process was article 42 of the original 1972 Constitution that empowered the President of the Republic for a period of one year to set up the new institutions of the country by way of Ordinances or other statutory measures. It was on the basis of this that Ordinance No.72/4 of 26 August 1972 on judicial organisation or Judicial Organisation Ordinance for short, was made. This Ordinance for the first time unified the system of administration of justice by adopting the civilian court structure, with some slight modifications, that was in existence in former East Cameroon. The effect of the 1972 Judicial Organisation Ordinance, which has since been amended on several occasions, is that English Common and French Civil law continue to co-exist, however uneasily, in both parts of Cameroon, but are now applied within an essentially civilian-style court structure. It is this court structure that operates in both legal districts of the country.
At the apex of the Cameroonian judicial pyramid is the Supreme Court, which is the only court specifically mentioned in detail in the Cameroonian Constitution. The organisation, functioning, composition and duties of all the other courts mentioned in Part V of the constitution are left to be determined by subsequent legislation. The structure and organisation of courts today is based on a number of recent texts: Law No. 2006/017 of 29 December 2006, to lay down the organisation, duties and functioning of regional audit courts; Law no. 2006/016 of 29 December 2006 to lay down the organization and functioning of the Supreme Court, Law no. 2003/005 of 21 April 2003 to lay down the jurisdiction, organization and function of the audit bench of the Supreme Court; Law no 2004/004 of 21 April 2004, to lay down the organization and functioning of the Constitutional Council; Law no 2004/2005 of 21 April 2004 to lay down the rules and regulations concerning membership of the Constitutional Council; Law no 2006/015 of 29 December 2006 on judicial organisation; and Law no 211/027 of 14 December (to amend and supplement Law no 2006/015 of 26 December 2006). On the basis of these Ordinances, laws and the constitution, the courts in the country fall into three main categories viz., courts with original jurisdiction otherwise known as courts of first instance or trial courts, appellate courts and courts with special jurisdiction.
The courts with original jurisdiction are:
i) Customary Courts (which consist of the Customary Courts and Alkali Courts in the Anglophone Region and the Tribunal de Premier Degré and Tribunal Coutumier in the Francophone Regions).
ii) Court of First Instance (which have jurisdiction over divisions but most of them cumulate as High Courts).
iii) High Court (which have jurisdiction over divisions but most of them cumulate as Courts of First Instance).
iv) Military Courts (which have jurisdiction over regions).
v) Lower Audit Court (which are yet to be set up but should have regional competence).
vi) Special Criminal Court (which is supposed to have regional competence but only one has been set up in Yaoundé with national competence).
vii) Administrative Court (which has regional competence).
The appellate courts consist of the following:
i) At the first level is the Court of Appeal. There is one for every region, hence ten in the whole country. They entertain appeals from the Customary Courts, the Courts of First Instance, the High Courts and the Military Courts.
ii) At the second level is the Supreme Court. There is just one single Supreme Court that is located in the capital city, Yaoundé. It entertains appeals from the 10 Courts of Appeal. Appeals from the Special Criminal Court go directly to the Criminal Bench of the Supreme Court. Appeals from the regional Administrative Courts also go directly to the Administrative Bench of the Supreme Court.
Finally, the courts with special jurisdiction deal either with specific matters specially provided for by law or a particular class of persons. The main ones are, the Court of Impeachment, Military Tribunals, the State Security Court, and in some respects, the Constitutional Council.
The Court of Impeachment is referred to in Part VIII of the constitution. In spite of the fact that it appears in a separate part and not as one of the courts under the so-called judicial power, it is very much a court of law. According to article 53(1) of the Constitution, the Court of Impeachment has jurisdiction to try the President of the Republic for high treason and the Prime Minister, members of Government and persons of that rank to whom powers have been delegated under articles 10 and 12 of the Constitution, for conspiracy against the security of the state, with respect to any acts committed by them in the discharge of their functions.
The Military Tribunal is regulated by the Judicial Organisation Ordinance 1972 as amended by Law No. 90-48 of 19 December 1990. Although there is only one Military Tribunal for the entire country with its seat in Yaoundé, the President of the Republic or by special delegation, the Minister Delegate at the Presidency in charge of Defence may authorise that hearings be conducted in any locality.
The State Security Court was set up by Law No.90-60 of 19 December 1990 with its seat in Yaoundé but with jurisdiction over the entire national territory. However, the court may by decision of the President of the Republic or by delegation, the Minister of Justice, conduct its hearings in any other locality. It has exclusive jurisdiction to try felonies and misdemeanours against the internal and external security of the state and related offences.
Two points needed to be noted. First, as pointed out above, the Supreme Court is in principle, the highest court at the apex of the judicial pyramid in the Cameroonian legal system. Besides its traditional role as an appellate court that ensures the proper application of the law by reviewing judgments and rulings of lower courts, the Supreme Court contributes to the transparent management of the state’s finances and that of the decentralized public and local authorities through the auditing of accounts. The Supreme Court also sits as the Constitutional Council, pending the setting up of this institution in accordance with the provisions of the 1996 constitution.
The organization and functioning of the Supreme Court is laid down in Law No.2006/016 of 29 December 2006. It consists of; the judicial bench, the Administrative bench, the Audit bench, the Panel of Joint benches and the Full Bench. Each bench is divided into divisions. Judges are assigned to the different benches by the Chief Justice after consultations with the bureau of the Supreme Court. The bench presidents assign judges to the different divisions. Secondly, since the entry into force of the OHADA treaty, the Supreme Court now shares jurisdiction in commercial matters with the Common Court of Justice and Arbitration (CCJA) in Abidjan. In fact, since article 15 of this treaty allows final appeals to be submitted directly by a party to the proceedings to the CCJA or on referral by the Supreme Court, the former is now the final court of appeal in such matters. A number of cases from the two Anglophone regions have been referred directly to the CCJA; bypassing the Supreme Court. With no common law trained judges in Abidjan coupled with the fact that all the official OHADA documents were until fairly recently only available in French, this has been perceived amongst many Anglophone jurists as one of the most invidious threats to the continuity of English law in Cameroon’s uncertain mixed system.
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.
As pointed out earlier, those who preside over Customary Law Courts are usually appointed by the Minister of Justice from community elders 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 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 the decisive factor.
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 years, once and a two term limit was repealed in 2008 allowing the president to run for as many terms as he wants to. He is empowered to name and dismiss cabinet members, judges, generals, regional 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. The decentralization that was provided for in the amended Constitution only became a reality 12 years later, when in 2008, the existing provinces were converted into regions. Administratively, the country is divided into 10 regions, 58 divisions, 569 sub divisions and 53 districts, 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. The National Assembly is made up of 180 members, elected for a term of five years. It meets briefly three times each year – in March, June and November. Since 1990 when political opposition was legalized, the parliament has representatives from some of the more than 168 opposition parties that exist in the country. The Senate, which was provided for in the 1996 Constitution was only formally established after elections on 14 April 2013. The former unique party in the one-party era, the Cameroon People’s Democratic Movement (CPDM) virtually dominates both houses of parliament. Although the parliament is the main legislative authority, because of the dominance of the executive, it merely rubber-stamps legislation put before it by the executive.
A key innovation in the 1996 constitution was the purported elevation of the judiciary to the status of a “judicial power,” on the same par as the other two branches of government, namely the executive and the legislature. This bold attempt to break with the inherited French tradition, which relegates the judiciary to a mere department of government under the supervision of the Minister of Justice, is compromised by other provisions, which make the President the guarantor of the independence of the judiciary. There is unlimited scope for political interference and manipulation because the President of the Republic under the Constitution has the powers to appoint, dismiss, promote, transfer and discipline judicial officers, especially judges and prosecutors. This therefore limits in a fairly significant way not only the independence of the judiciary but also the effectiveness of the separation of powers. Judicial independence in the country is further undermined by the indiscriminate transfers of judicial personnel from the bench to the prosecutor’s office and vice versa. On 23 May, the All Cameroon Common Law Lawyers’ Conference, in their inaugural conference held in Bamenda, in the North West Region, passed a resolution in which they condemned the absence of judicial independence and frequent interferences in the judiciary by the Government. They called on the Government to respect the independence of the judiciary.
Although Article 68 of the amended constitution follows the pattern of previous constitutions in recognizing the bi-jural legal system, there remain serious problems in identifying the law as applicable in many areas. It is a problem that has not been diminished by the increasing adoption of so-called “uniform laws” applicable in the two legal districts such as the Penal Code, the Labor Code, Insurance Code, maritime law, banking law, arbitration, general commercial law and company law. In most cases, these laws are simply copied from French codes with some few finishing sprinkling of English common law notions here and there to give a semblance of harmonization. Over the years, the approach towards law reform that has steadily seen the introduction of “uniform laws” based essentially on French civil law replacing English common law in many areas in the Anglophone regions had given rise to discontent amongst the Anglophone jurists who saw this as a sinister attempt to ultimately replace the common law in the English speaking regions with the civil law. Matters came to a head with the promulgation into law of the OHADA treaty in September 1996. The enactment of the OHADA law marked a turning point in the hitherto bi-jural nature of the country. It led to the replacement of common law based principles of substantive law in such areas as contract, land law, insurance law and family law. Since the adoption of a new supposedly harmonized Criminal Procedure Code in 2006, more steps have been taken to replace common law based principles of procedural law in the areas of criminal procedure, civil procedure and evidence by civil law inspired principles. The progressive whittling away of the common law in the English-speaking North West and South West Regions has been compounded by appointment of civil-law trained judicial personnel who are neither versed in the common law nor able to conduct judicial proceedings in English, to these two Regions. In fact, in the last two years, about 40% of magistrates appointed to work in the two Anglophone regions are Francophone civil law trained jurists. It was thus no surprise that in their 23 May 2015 resolution, the All Cameroon Common Law Lawyers’ Conference called on the Government to immediately take steps to stop the present reforms which are designed to replace the common law with the civil law in the Anglophone regions and threatened to “seek further redress from international dispute resolution for a.” The fiction of a bi-jural system based on so-called harmonized laws poses a serious problem for the rule of law and legal certainty in the Anglophone Regions. There is no consistency in the interpretation and application of such laws because Anglophone and Francophone judges adopt sometimes diametrically opposed techniques of statutory interpretation. For instance, Anglophone judges rely heavily on judicial precedents whereas this is either disregarded or treated as of minor importance in the decision-making process adopted by Francophone judges. There are no settled, clear and predictable rules to govern conflicts, which often arise between the laws in the two legal districts. The uncertainty over the legal rules in certain areas of the law has encouraged some form of “forum shopping” with litigants resorting to the legal district, which will better serve their interest. The transfer of civil law trained jurists to the Anglophone Regions will not only aggravate the issue of legal uncertainty but create tensions within the legal system.
8. Legal Research Guides, Legal Web Sites Directories, Law Lists, Libraries’ and Legal Citation Guides
- Droit Francophone – A collection of links to Cameroon’s legal websites including Governmental sites, organizations, law faculties and journal Websites. Access to legislation, the Constitution and background to the history and legal system of Cameroon are also provided. This page forms part of the Droit Francophone gateway a site made freely available by the Agence Intergouvernementale de la Francophonie, which offers links to legal web resources throughout the French-speaking world. The site is available only in French.
- UNPAN – This site contains the full-text of the constitution of the state of Cameroon as agreed with revisions on 18th January 1996. The document sets out the nature and structure of government in the Cameroon, including the roles of the presidency, executive and judiciary. It also documents the rights of the individual. At present, the text is offered in French only. The site is hosted through UNPAN – United Nations Online Network in Public Administration and Finance.
- Laws of the Republic of Cameroon – This site contains full text laws of the Republic of Cameroon made freely available on the Prime Minister's Office Website. Legislation is listed in reverse chronological order and can be browsed or searched by keyword, date, ministry or type of law (ordnance, decree, order or decision). The site can be viewed in French and English but some of the laws are available only in French.
- President of the Republic of Cameroon – This is the official website of the President of the Republic of Cameroon. It provides access to a biography of the current incumbent and details of his/her recent activities. The latter includes news of official engagements, press releases and communiqués, which cover current economic, social, political, and foreign policy. Also accessible are recent issues of Le Magasin du Palais which describe recent political events. However, most of the information is currently offered only in French.
- Prime Minister – This is the official website of the Prime Minister of Cameroon. It provides details on the current incumbent and his activities. This includes access to recent press releases and speeches covering all aspects of political, economic, social and foreign policy. The site also provides links to details of ongoing political programmes of the government and recent legislative acts. The information is available in both English and French.
- WorldLII – This section of WorldLII's World Law service covers the Republic of Cameroon. A range of browse and search features are available on the site. Browse sections highlight links relating to Government, legislation, Parliament, other Web portals and subject areas including cyberspace, telecommunications and taxation, revenue and customs. A stored search will automatically search for materials relating to Cameroon on all of World Law. This section of WorldLII was developed from work initiated by the Australasian Legal Information Institute (AustLII).
- Constitution Finder: Cameroon (University of Richmond T.C. Williams School of Law) in English and French.
- La Constitution de Cameroun (Agence Intergouvernementale de la Francophonie) in French.
- NATLEX: Cameroon (International Labor Organization) database of national laws on labor, social security and related human rights.
- Multinational Collections Database: Cameroon (Law Library of Congress) provides bibliographic information on materials in our reference collection.
- OHADA – Le portail du droit des affaires en Afrique: This site contains information on OHADA.
- Sources of Online Legal Information for African Countries (Jane Williams, via GlobaLex).
- World Directory of Parliamentary Libraries: Cameroon (Germany Bundestag).
- World Legal Information Institute: Cameroon (WorldLII).
- World Legal Materials from Africa: Cameroon (Cornell Legal Information).
- Portals to the World: Cameroon (Library of Congress).
- U.S. Relations with Cameroon- Factsheet (U.S. Dept. of State).
- Chiefs of State and Cabinet Members of Foreign Governments: Cameroon (U.S. Central Intelligence Agency).
- Travel Country Information: Cameroon (U.S. Dept. of State).
- Country Information: Cameroon (U.S. Dept. of State).
- Country Reports on Human Rights Practices: Cameroon (U.S. Dept. of State).
- Governments on the WWW: Cameroon (Gunnar Anzinger).
- Human Rights in Cameroon (Amnesty International).
- International Religious Freedom Annual Reports: Cameroon (U.S. Dept. of State – annual reports. Browse to Cameroon for a particular year.)
- World Factbook: Cameroon (U.S. Central Intelligence Agency).
- Anyangwe, C. The Cameroonian Judicial System Yaoundé: CEPER, 1987.
- Anoukaha, F., Cissé-Niang, A., Messanvi F. J & Issa-Sayeph, Sûretés (OHADA), Bruxelles: Bruylant, 2002.
- Azevedo, M. (ed.), Cameroon and its National Character. Mississippi: EUGA, 1984.
- Bokalli, V.E., and Sossa, D. E., Droit des Transports de Marchandises par Route. Bruxelles: Bruylant, 2007.
- Djuidje, B., Pluralisme Légslatif Camerounais et Droit International Prive. Paris: L'Harmattan, 2000.
- Enonchong, H.N.A. Cameroon Constitutional Law: Federalism in a Mixed Common-Law and Civil Law System. Yaoundé: Centre d'Edition et de Production de Manuels et Auxiliaires de L'Enseignement, 1967.
- Etoundi, F.O., Biumla, J.M.M. Cinq Ans de Jurisprudence Commentée de la Cour Commune de Justice et d’Arbitrage de l’OHADA (CCJA) (1999-2004. Yaoundé: Presse de l’Ama, 2005.
- Fombad, C.M. Cameroon: Constitutional Law (in Blanpain, International Encyclopaedia of Laws – Constitutional Law). The Hague, Wolters Kluwer Law and Business, 2012.
- Fombad, C.M. Cameroon: Text of Constitution (in Blanpain, International Encyclopaedia of Laws – Constitutional Law). The Hague, Wolters Kluwer Law and Business, 2012.
- Johnson, W. The Cameroon Federation: Political Integration in a Fragmentary Society. Princeton: Princeton University Press, 1970.
- Kofele-Kale, N. An Experiment in Nation Building: The Bilingual Cameroon Republic since Reunification. Boulder: Westview Press, 1980.
- Le Vine, The Cameroons from Mandate to Independence. Los Angeles: University of California Press, 1964.
- Le Vine, The Cameroon Federal Republic. Ithaca: Cornell University Press, 1971.
- Mbah-Ndam, J., Practice and Procedure in Civil and Commercial Litigation, Yaoundé: Presses Universitaires d’Afrique, 2003.
- Monie, J.N. The Development of the Law and Constitution of Cameroon. Ph.D. Thesis, London University, 1970.
- Ndoko, N-C., La Culpabilité en Droit Pénal Camerounais. Paris: LGDJ, 1998.
- Ngoh, J.N. Constitutional Developments in Southern Cameroons, 1946-1961: From Trusteeship to Independence. Yaoundé: CEPER, 1990.
- Ngono, S., Le Procès Pénal Camerounais au Regard des Exigences de la Charte Africaine Des Droits De L'homme Et Des Peuples. Paris: Editions L'Harmattan, 2002.
- Ntila, E., Le Respect Des Droits de la Personne au Cours De L'instruction Préparatoire en Droit Camerounais. Yaoundé: Anrt -Atelier National, 2004.
- Nzie, S. N., Le Système Camerounais de Prévention et de Règlement des Litiges de L'administration. Yaoundé: Anrt -Atelier National, 2004.
- Owona, J., Droit Administratif Spécial de la République du Cameroun. Paris: Mame, 1985.
- Pougoue, P-G, Anoukaha, F., Cisse, A., Diouf N., Toukam N., and Sam M., Sociétés Commerciales et G.I.E, Bruxelles, Bruylant, 2002.
- Prouzet, M. Le Cameroun. Paris: Librairie Générale de Droit et de Jurisprudence, 1974.
- Rudin, N. Cameroun: An African Federation. London: Pall Mall Press, 1971.