Saturday, August 4, 2012

Cameroon Judicial Power: A tool in the hands of Executive Power!

By Tazoacha Asonganyi,Yaounde.
Justice emanates from the people, and is administered in the name of the people by the judicial power. The Cameroon constitution states that the judicial power shall be exercised by the Supreme Court, Courts of Appeal and Tribunals; the judicial power shall be independent of the executive and legislative powers; magistrates of the bench shall, in the discharge of their duties be governed only by the law and their conscience. It further states that the president of the Republic shall guarantee the independence of the judicial power; he shall appoint members to the bench and legal department; he shall be assisted in the task by the Higher Judicial Council which shall give him its opinion on all nominations for the bench and on disciplinary action against judicial and legal offices.
Magistrates of the bench exercise their role through the courts. The role of the law and the courts is to better the lot of mankind. Most constitutions state that the judicial power is independent of the executive and the legislative powers, thus referring to the separation of power with attendant checks and balances meant to ensure that no power can call the shots alone or become the master of the people it is supposed to serve. Such constitutional frameworks and judicial protections are necessary for democratic politics to function properly. An independent judiciary is vital to enforcing the law and ensuring accountability in all areas of government.  In the process, history is made by those who resist influences intended to buy their consciences, not by those who for cheap and transient considerations, usually struggle to please the powers that be.
The Ghanaian constitution defines “the law of Ghana” on which the judicial power bases its actions  to includes: this constitution; enactments made by or under the authority of the  Parliament established by the constitution; any orders, rules and regulations made by any person or  authority under a power conferred by the constitution; the existing law; the common law….This constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this constitution shall, to the extent of the inconsistency be void.
Unlike in Cameroon where the president of the Republic – a self interested person - guarantees the independence of the judicial power, the constitution of Ghana guarantees the independence of the judiciary as follows: In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this constitution and shall not be subject to the control or direction of any person or authority;  neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, the dignity and effectiveness of the courts, subject to this Constitution.
Left to their own designs, human beings, because of their station in life, usually abuse the power of the state to get the better of their fellow men. It is the Rule of Law that preempts this Rule of Man, since state power is hemmed in with myriad restrictions concerning the relationship between the state and the sovereign individual. The Rule of Law, in its barest form, is the use of the law in securing the protection of the individual without exception. It is in the spirit of the rule of law that all human beings are equal and no one person, no matter their station in life, is more equal than others.
In general, the relationship between the state and the individual is an inherently unequal one in which the individual is confronted by a state that enjoys the monopoly of power and violence. It is the rule of law that protects the individual from the power of the state. And such protection depends on the independence of the law courts – the magistrates. The Rule of Law should not depend on the whims and caprices of strongmen; the protective wall of the Rule of Law built around the weak individual should never be broken. The individual in society must be able to act freely in order to use their talent, ingenuity, and intelligence to contribute to the progress of society. In so acting, the individual usually comes into conflict with other individuals, thus creating conflict; this is when the law and the state (the courts) come in to moderate, arbitrate, and adjudicate.

One-party rule was tantamount to totalitarianism and violated human rights, human dignity, and communal autonomy… Totalitarianism attempts to overcome opposition between the democratic individual and the community of which he or she is a member. It removes the space in which individuals can engage in autonomous self-interpretation or critical reflection. It comes about because of the tension between the free individual and the autonomous community; a synthesis is sought, but its cost is finally the loss of both freedom and communal autonomy… and the eradication of the culture of democracy. When in May 1962 four MPs: AndrĂ© Marie Mbida, Theodore Manyi Matip, Charles RenĂ© Guy Okala, and Marcel Bebey Eyidi published a letter in which they criticized the impending one party project of Ahidho, they must have been aware of these weaknesses of the one party regime. Yet although it is Ahidjo that ordered their arrest under Ordinance 62-18-OF on the repression of subversion, it was the courts, not Ahidjo that in June 1966 sentenced them to three years imprisonment!
When Paul Biya ordered the arrest of Yondo Black and others in 1990 using the same Ordinance 62-18-OF because they dared to talk about multi-party politics, the court (even if military) that tried them was fully aware that the Constitution of 1972 authorised multiparty democracy in Cameroon; yet the court sentenced them to three years imprisonment!
These two cases show that the courts have been a tool in the hands of the executive, to repress freedoms in Cameroon. In most societies, law and litigation have been used effectively in test cases to advance basic rights. Not so in Cameroon where the courts have been unwilling to say what the law is in relation to some key issues. For example, in 1990 what came to be known as “liberty laws,” which were in effect the consecration of the overriding dominance of the administration over the judiciary were published. The “liberty laws” served as a screen for discriminatory intent; their terms looked evenhanded, but they became weapons of oppression all the same.
 “Freedom” of association (Law No. 90/053) was not free; “freedom” to hold public meetings and processions ( law n° 90/055) was not free; maintenance of law and order - arbitrary arrest and detention of “bandits” (Law no. 90/054 ) - became arbitrary arrest and detention of opposition militants; “sociological composition” of lists of candidates for municipal and legislative elections (law no. Law n° 91/20 of 16 December 1991; law n° 92/002 of 14 August 1992) was a changing concept from region to region, depending on the whims and caprices of the administrative authority! The courts were usually called upon to say what the law was in each instance, but the courts failed woefully to do so!
“Tell Magazine” of June 8, 2009, was a Special feature on 10 years of Democracy in Nigeria (1999 – 2009). In the Magazine, Justice Idrid Kutigi declared in an interview titled “The Judiciary, Blazing a Trail” that “Nurturing democracy has thrown up a lot of challenges: for the executive, for the legislature and the judiciary. The judiciary has shone like a million stars in Nigeria’s political galaxy, especially in the way that it came to the rescue of the nation following the 2007 general elections. Both the bar and the bench made patriotic contributions using landmark cases to make landmark judgments….”
Two members of the Bar were also interviewed. Senior Advocate of Nigeria (SAN) Wole Olanipekun declared in an interview titled “Democracy is our destiny” that “…Take the case of Governor Ladoja of Oyo state. Some members of Oyo state House of Assembly went to O’Rovan Hotel in the city and impeached the Governor. Nobody wanted to challenge it.  We took up the challenge with a good judiciary that could listen and reason. We asked the court to decide a lot of things like where is the legislative house? Can you exchange O’Rovan hotel in Ibadan with the sacredness of the legislative chambers at Agodi? If that could be done, it would mean that you could impeach the governor of Lagos state in a beer-parlour in Ikere-Ekiti…At the end of the day we got Ladoja re-instated. .. If Ladoja’s impeachment had not been successfully challenged, many governors would have gone the way of Ladoja…A lawyer is always a crusader in and out of court…We have been able to successfully defend the mandate of many elected officials throughout the length and breath of the country, cutting across all the geopolitical zones and political parties….”
SAN Yusuf Ali declared in an interview titled “Judiciary, the savior of Nigeria’s democracy” that “…I am not a politician. My commitment is to the law profession….Of the three arms of government, the judiciary has remained the most credible, the most consistent, and the savior of democracy. It is virtually the only institution of the three arms that has a self-cleansing mechanism that is viable, operational and working…”
The take away message from these interviews for the Cameroon judiciary is that when there is an injustice and there is no case before the courts to correct it, the response should not be the helplessness of “our hands are tied,” but an effort to exploit legal openings to put the case before the courts for redress.
The judicial power is facing a historical test of its credibility with the dozens of cases brought before it by the executive power. Most of the cases are only the exposed tentacles of the corruption that clogs the society. After all those jail terms being handed down left and right to please the executive power, the true evil – the bad control system instituted by the corrupt CPDM regime - will still be in place.  With the system in place, corruption will always be able to cast itself in ways that may appear benign, but are no less insidious!
The judiciary should enter the fight against corruption on its own terms. It should use all the shouting evidence of corruption and embezzlement in our society to institute test cases that require people to explain the source of their wealth. As for Paul Biya, he should borrow a leaf from the “West Cameroon Financial Instructions” and the “General Orders” to sanitise the management of taxpayers’ money he has left at the mercy of his surrogates during 30 years of his reign. He should stop playing fast and loose with CONAC, ANIF and other corruption screens he has erected around us.

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