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
Introduction
Historical Note
The Cameroonian Legal System
Sources of Cameroonian Law
The Constitution
Legislation
Judicial Precedent
Customary Law
Law Reporting
Current Court System Structure
Judicial Officers
Government
Legal research guides, legal web sites directories, law lists, libraries' and legal citation guides
Selected Bibliography of Cameroonian Secondary Law Books
Introduction
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.
Historical Note
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 Cameroonian Legal System
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.
Sources of Cameroonian Law
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.
The Constitution
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.
Legislation
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.
Judicial Precedent
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.