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| Prof.Kofele kale |
Marafa Hamidou Yaya’s Counsel Reacts To Issa Tchiroma’s July 15 Press
Statement On The Decision Of The Working Group On Arbitrary Detention
Mr. Tchiroma’s July 15, 2016, press
declaration on the recent Decision of the United Nations Working Group on
Arbitrary Detention (WGAD), calling for the immediate release of Mr. Marafa Hamidou
Yaya from his arbitrary detention and compensation for his suffering, is political
‘spin doctoring’ at its worst and a poorly-disguised attempt to confuse and
distract the Cameroonian public from the real issues at stake. His declaration
exudes the unmistakable aroma of a rearguard campaign to dilute the legal
significance of this Decision from the point of view of the Law of Nations. The press statement
repeats gosso modo the same worn-out
arguments the Government of Cameroon (GOC) presented to the Working Group in
their spirited response to Mr. Marafa’s submission; the same arguments its
lawyers raised in the Mfoundi High Court as well as the Supreme Court. There is
nothing de nouveau here! Will someone
please tell Mr. Tchiroma that the Marafa case is now res judicata and he should stop re-litigating it in the press?
It should be recalled that when
seised of the matter it took the WGAD almost six months of careful and
methodical examination of the GOC’s arguments as well as those of Mr. Marafa’s
counsel. It is only after wading through over a thousand pages of documentation
that these five eminent and reputable U.N.-appointed jurists, as impartial and
independent as they come, concluded that Mr. Marafa had been denied his right
to a fair, public trial by competent, impartial and independent judges, in clear
violation of GOC’s solemnly and voluntarily-assumed obligations under Article
10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the
International Covenant on Civil and Political Rights (ICCPR). Both of these
provisions speak to Mr. Marafa’s right to a fair and public trial by competent,
independent and impartial judges.
Since Mr. Tchiroma’s press outing
seeks to raise a cloud over the binding effect of the Working Group’s Decision,
perhaps a brief primer on international law is called for, if for no other
reason than to situate, for the benefit of the Cameroonian people, Cameroon’s
place in this orbit and her obligations arising thereof. International law is
nothing more than the law which States themselves, Cameroon included, have
agreed to be bound by either expressly (in treaties) or impliedly (by their
conduct). It is this “Law” that the WGAD was set up by the United Nations Human
Rights Council—incidentally, the first organ established in 1946 by a
newly-established United Nations with a mandate to oversee the protection of
human rights across the globe—to monitor compliance by States parties. When
Cameroon joined the United Nations in 1960, she expressly agreed to be bound by
the Charter of the United Nations, the constitution of the world. Pursuant to
the provisions of that Charter, Cameroon together with the other Member States pledged themselves to jointly and
severally take action to promote the “universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race,
sex, language, or religion.” See United Nations Charter,
Articles 55 (c) and 56.
It should be noted that upon becoming a U.N. Member in
1960, Cameroon automatically agreed to comply with the provisions of the UDHR, the fountain of all subsequent human rights
instruments; and Cameroon, on its own volition, free from any external
pressure, exercised her rights as an independent sovereign State when it ratified
the ICCPR in 1984 together with its Optional Protocol. These instruments which were
subsequently incorporated by reference into our Constitution thereby becoming
the supreme law of the land are front-and-center in the deliberations of the
WGAD that resulted in the Decision they took on Mr. Marafa!
When sovereign States enter into treaty relationships, their conduct is
regulated by the doctrine of pacta sunt
servanda, this doctrine is at the
core of treaty law and is codified in Article 26 of the Vienna Convention on
Treaties (“Every treaty in force is binding upon the parties to it and must be
performed by them in good faith”). In simple language, commitments publicly,
formally and voluntarily made by a nation should be honored in good faith. The doctrine of pacta sunt
servanda enjoins States parties to a treaty from invoking their internal
law as justification for failure to perform. Having been found in violation of
her obligations under the UDHR and the ICCPR, I hope Mr. Tchiroma’s press
declaration is not intended as an alibi for GOC to brush aside the Decision of
the Working Group. Under the doctrine of pacta
sunt servanda Cameroon is required to give full faith and credit to that
Decision because it emanates from engagements Cameroon took in good faith
before the community of Nations which, regrettably she failed to honor and
respect in Mr. Marafa’s case!
When an international judicial or
quasi-judicial body renders an opinion against a State for failing to comply
with its treaty obligations, the defaulting State has no choice but to respect
and comply with that ruling. It is this mutual respect for treaty obligations
that imposes structure and order in the relationships between States and
promotes stability in the international system. Without this reciprocal expectation
that States will respect their treaty obligations, the community of nations
would become nothing more than a Hobbesian
jungle governed by a Darwinian paradigm where only the strongest and fittest
States survive, i.e., powerful nations who can prey on the small and weaker
States; using their enormous power to bend the less-powerful to their will.
On a moral level, it is too late for
Mr. Tchiroma to raise a cloud over the legal significance of the WGAD’s
Decision. That should have been done long before the GOC agreed to participate
in the proceedings. The contest was joined from the moment GOC submitted to the
jurisdiction of the UN Working Group by filing its pleadings in response to Mr.
Marafa’s petition; then consented to the rules of engagement, so to speak, because
she had expressly agreed to be bound by the U.N. Charter, the UDHR and the ICCPR.
It bears emphasizing that GOC could have done as it did in both the Thierry
Atangana and Lydienne Eyoum petitions that preceded Mr. Marafa’s at the WGAD
where GOC ignored repeated requests from the WGAD to file an answer. Clearly GOC
attached great importance to the Marafa case as evidenced by its willingness to
engage in every stage of the proceedings; for that we are immensely grateful.
However, Government cannot now ignore this ruling because it went against her.
What if Nigeria had refused to respect the International Court of Justice’s judgment
on the Bakassi Pennisula?
Cameroon considers herself and wants
to be treated with respect as a law-abiding member of the community of nations.
Respect is usually earned: here then is an opportunity for GOC to demonstrate
its unflinching commitment to the Rule of Law and its deep and abiding attachment
to the doctrine of pacta sunt servanda
by releasing Mr. Marafa Hamidou Yaya without further delay.
Ndiva Kofele Kale Esq, Counsel for
Marafa Hamidou Yaya. Motande Chambers, Buea
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