THE EROSION OF CAMEROON’S JUDICIARY

BY AYAH Paul ABINE
In 1993, Cameroonian civil servants (including members of the Judiciary) suffered two major salary cuts; and the franc was devalued by fifty per cent. Strikes by poverty-stricken civil servants ensued. The Minister of Justice then was a certain Douala Moutome, said to be a lawyer. Either from ignorance or from crude violation of the law, he purported to suspend members of the Judiciary with contemptuous disregard for their legal right to be heard. He additionally threatened to recruit “law graduates” to replace the striking members of the Judiciary if the latter did not return to work expeditiously. That the Constitution of Cameroon provided that the Judiciary was independent meant little to the powerful Lord Minister.

Few persons familiar with the Cameroonian Judiciary would dispute that the Executive has since embarked on the systematic weakening of the Judiciary that was already more of a decorative appendage to the Executive. Examples are legion. The few mentioned hereunder are merely selected to illustrate that assertion. What beats the imagination is that the very persons preaching peace would be oblivious that there can be no genuine peace without proper and efficient dispensing of justice.

A salient example of the blatant undermining of the Judiciary the Moutome way is the 2004 presidential decree which empowered the President of the Republic to appoint, inter alia, university lecturers, “category-A civil servants, bailiffs and notaries public” as members of the Judiciary. Any euphemistic colouring of the ulterior motive is like hiding bush meat in a net. For every nursery-school pupil in Cameroon knows that a good many university lecturers do wear party uniforms and march in their threadbare academic apparel in support of political party leaders. Nor are there many who are unaware that the Public Service is wholly politicized, so much so that civil servants are party resource persons and campaign managers.

Aside from jesting, what else can be considered as watering down the legal profession more than raising such partisan lopsided laymen to the Bench reserved for learned friends? It surely does not require much thinking to come to the conclusion that the intention of the Executive in preparing the ground for such unorthodox replacement of members of the learned profession was to put on their enquiry any members of the Judiciary contemplating ever again taking independent positions vis-à-vis the Executive.

Prior to that decree even, registrars-in-chief, arrogating to themselves legislative powers, had enacted a law that a litigant must deposit five per cent of his claim as a condition precedent to his filing a claim in court. Apart from protecting public authorities against claims for abuse of office, that illegal condition transformed the courts into lawless institutions with registrars-in-chief at the helm, regulating the filing of civil cases in courts of law nominally headed by professionals as per the law. Even as the Minister of Justice is well aware that this is a monumental illegality, his ministry strictly observes, and enforces the strict observance of the illegality. After all, as long as money is perpetually available for the grabbing by the bold, dogs can keep barking but the train goes on.

As a taste of the forbidden ripples greater transgressions, the Executive has now proceeded to fuse High Courts and Courts of First Instance together. They certainly do not doubt that this is totally inconsistent with the law. And that surely explains why, to dissipate alarm, they have maintained the structures of those courts for the time being while their composition is being eroded. The fusion started selectively with the professional corps. But the recent appointment of registrars-in-chief to those tribunals is conclusive evidence that the fusion is near completion.

For a better understanding of how the fusion is unlawful, it is instructive to traverse briefly the three kinds of jurisdiction of the two tribunals. To start with jurisdiction ratione loci, every High Court corresponds to the surface area of a Division on the political map of Cameroon. But there is a proviso that, for want of manpower, one High Court could cover more Divisions than one. A Court of First Instance, formerly called Magistrates’ Court in West Cameroon, on the other hand, corresponds to the surface area of a Subdivision, with a similar proviso mutatis mutandis.

As for jurisdiction ratione materiae, a High Court entertains felonies in criminal proceedings; and hears civil cases whenever the claim exceeds 10.000.000 francs. A Court of First Instance similarly hears simple offences and misdemeanours; and entertains civil suits each time the claim does not exceed 10.000.000 francs.

In respect of jurisdiction ratione personae, the law on Judicial Organization clearly provides that each of those courts has a distinct composition with a president as the head of the Bench, and a registrar-in-chief as the head of the registry. Their competences are circumscribed by jurisdiction ratione loci and ratione materiae.

But what obtains in those tribunals today is that, in appointing the personnel, the President of the Republic fuses the composition of the two tribunals together as if the two were one and equal. For instance, judges appointed to the High Courts are simultaneously appointed to the Courts of First Instance. This is definitely not within the law. It would be absurd to hold that Parliament took all the time to legislate for tribunals at two levels following a Bill tabled by the President of the Republic, and that that Parliament and the very President intended in fact that the tribunals be indistinguishable in their composition. Nor would anyone seriously contend that the law intended an absurdity here when it is common knowledge that the law does not intend an absurdity.

If the argument is that the Constitution of Cameroon provides that “Judicial power shall be exercised by the Supreme Court, Courts of Appeal and Tribunals”, without distinguishing between High Courts and Courts of First Instance, the only avenue open to the President of the Republic is to refer the matter to the Constitutional Council for the determination of the constitutionality of the relevant law. There is no constitutional provision permitting him to ignore a law duly enacted by Parliament, or to conduct himself as the Constitutional Council.

Again, the said Constitution provides that the “composition” of those courts “shall be laid down by law”. It was therefore in the pursuance of the Constitution that the law laid down the composition of the tribunals. Even if the argument were that, in the event of any conflict, the direct constitutional provision would prevail over the law, the body having exclusive jurisdiction to determine the matter is the Constitutional Council.

It is abundantly clear to every real legal mind, therefore, that the law is unambiguous that the two tribunals are distinct from each other. If the Legislature intended that their composition be fused under certain circumstances, it would have so stipulated by a proviso as it did with respect to jurisdiction ratione loci.

Such provision would not have been anything new. In West Cameroon, justices of appeal had jurisdiction to hear and determine cases in the High Court. But that was in accordance with an express provision of the law. It cannot be by presumption; much less can a presumption be invoked to defeat an express provision of the law. It would be useful to add that the law on jurisdiction is strictly construed. That is why in the Magistrates’ Courts of old, magistrates were classified in grades, and their jurisdiction ratione materiae was strictly restricted even within the same court.

We cannot think our system so crude that it would permit green heads from school to sit in High Courts and toy with the lives of citizens by hearing and determining capital offences. Nor can it be a valid point that we so lack judges that there is real need to appoint partisan lopsided laymen to interpret the law they have not learnt. No reasonable man with elementary legal knowledge would advance a proposition that the classification of offences in the penal code, and the enactment of the law by the Legislature providing for two distinct tribunals were meant for jest.