Difference between revisions of "Cameroon"
(→Type of System)
(→Sources of defendants’ rights)
|Line 23:||Line 23:|
The sources of defendant’s rights are mainly found in the
The sources of defendant’s rights are mainly found in the , the legislation and judicial precedents and customary law<ref>GlobalLex, Researching Cameroonian Law, Charles Manga Fombad, online: http://www.nyulawglobal.org/Globalex/Cameroon.htm </ref>. Judicial precedent will be applied differently depending on whether the litigants are in Anglophone or Francophone Cameroon. The Constitution is the most important source of law in Cameroon and offers protections from illegal search and seizure, illegal arrest, detention and prosecution, prevents from retrospective effects of the law, ensures a fair hearing, guarantee the presumption of innocence, the rights to life and physical and moral integrity, protects from cruel, humane treatments and torture<ref>Constitution of the Republic of Cameroon,Law No. 96-06 of 18 January 1996 to amend the Constitution of 2 June 1972,online: http://confinder.richmond.edu/admin/docs/Cameroon.pdf</ref>. The Cameroon Constitution was adopted in 1960 upon independence and was later on amended and then redrafted in 1972. The 1872 version has also been amended several times, with the last amendment made in 2008<ref>http://en.wikipedia.org/wiki/Constitution_of_Cameroon and https://www.icrc.org/ihl-nat/0/7e3ee07f489d674dc1256ae9002e3915/$FILE/Constitution%20Cameroon%20-%20EN.pdf</ref>.
Latest revision as of 12:49, 14 May 2018
|English • español • français|
Cameroon, officially known as the Republic of Cameroon, is a country in Central Africa that is comprised of 10 provinces and 1 capital, Yaounde. It was discovered by the Portuguese in the 1500's and its name derives from "Camaroes", which means shrimps in Portuguese. Prior to World War I, Cameroon was a German colony. However, after Germany's defeat in the Great War, the colony was partitioned between France and Great Britain, with France obtaining control of a larger geographic share. In 1955, the Union of the Peoples of Cameroon began an armed struggle for independence in French Cameroon. The French part of Cameroon became independent on January 1, 1960, forming the Republic of Cameroon. The following year, in British Cameroon, the northern two-thirds of the territory, which was mostly occupied by Muslims, voted to join Nigeria while the southern one-third of the territory, which was Christian, voted to join the Republic of Cameroon. The British section of Cameroon officially gained independence on October 1, 1961. The first president of Cameroon was Ahmadou Ahidjo, who served from 1961 to 1982. Under Ahidjo's rule, Cameroon outlawed all political parties except for Ahidjo's and implemented a new constitution in 1972. The 1972 constitution, which provides for a strong central government dominated by the executive branch, turned Cameroon from a federation of two regions into a unitary state. When Ahidjo stepped down in 1982, he was constitutionally succeeded by Paul Biya, who is presently still retains the presidency.
Cameroon Cameroon is made up of an extraordinary diversity of about 250 tribes speaking at least 280 different indigenous languages. It has a population of about 19.5 million people, among which 20% is Anglophone and 80% Francophone. The official languages of Cameroon are English and French, although the French language is dominant. In anglophone provinces, Pidgin English is widely spoken. Religions in the country range from Christian (40%) or Muslim (20%) to indigenous African (40%).
Type of System
Cameroon legal system is a relic of the colonial era. However, despite the fact that Cameroon has been unified from a political and administrative perspective since 1972, there are dual and contradictory procedural sources in Cameroon: the Criminal Procedure Ordinance, extracted from the Laws of Nigeria of 1958 and the Code of Criminal Instruction (Code d’Instruction Criminelle) which comes from the Ordinance of February 14th, 1938. Hence, Cameroon applies a dual system, if not conflicting, influenced by both civil law and common law. It may be noted that traditional courts in the villages (i.e., non statutory courts) exercise jurisdiction over whatever matter, issue, cause or dispute arises in the village whether civil of criminal. Customary law governs matters such as customary marriages, divorce, custody, inheritance, adoption and affiliation and also lands held by customary communities. Customary law includes Islamic Law and those native laws and customs “which are not repugnant … and not incompatible to natural justice, equity and good conscience, nor incompatible either directly or by natural implication with the written law for the time being in force".
English Cameroon adheres to the stare decisis rule. In Francophone Cameroon, however, the stare decisis is not strictly adhered to and is not considered as a primary source of law. Rather, it is considered as being highly persuasive when coming from the superior courts. In Francophone Cameroon, procedure is inquisitorial.
In practice, Cameroon is known to be one of the most corrupted countries in the world. Bribing is a way of life and what is commonly known as a whisky often supersedes formal laws. According to Transparency International, police and the judicial system are among the most corrupt sectors in Cameroon. Moreover, there is no efficient system of law reporting in the country, despite commendable efforts in that direction. Hence, the law is not readily accessible to citizens and is not applied uniformly.
The highest judicial authority in Cameroon is the Supreme Court. The Supreme Court comprises a judicial bench, an administrative bench and an audit bench. The judicial bench shall give final rulings on appeals accepted by law against final rulings given by the various courts and tribunals of the judicial system, judgement's passed, by the lower courts of the judicial system that have become final in cases where the application of the law is challenged and all matters expressly devolving upon it by law. . The Supreme Court has jurisdiction over the whole country. There is also a High Court of Justice, composed of nine judges and six substitute judges who are elected by the National Assembly. High Courts operate at divisional level, but they also often cover several divisions. The Cameroonian system has trial courts/courts of first instances in every one of its 58 country divisions, with a court of appeal in each of the country's 10 official regions. There are Magistrates' Courts, which operate at sub-divisional level, although they usually cover subdivisions. Finally, there are also Traditional Law Courts, which operate at village or tribal level.
Sources of defendants’ rights
The sources of defendant’s rights are mainly found in the constitution, the legislation and judicial precedents and customary law. Judicial precedent will be applied differently depending on whether the litigants are in Anglophone or Francophone Cameroon. The Constitution is the most important source of law in Cameroon and offers protections from illegal search and seizure, illegal arrest, detention and prosecution, prevents from retrospective effects of the law, ensures a fair hearing, guarantee the presumption of innocence, the rights to life and physical and moral integrity, protects from cruel, humane treatments and torture. The Cameroon Constitution was adopted in 1960 upon independence and was later on amended and then redrafted in 1972. The 1872 version has also been amended several times, with the last amendment made in 2008.
Cameroon law makes the distinction between flagrant delictos (flagrant crimes) and non flagrant crimes. A flagrant crime includes one which has just been committed, or one for which the public chases the suspect after the commission thereof. In the case of flagrant crimes, the police officer may prohibit any witness to move away from the crime scene for a period not exceeding 12 hours. The Republic Prosecutor is competent to deal with flagrant crimes. Once the Prosecutor arrives, the police agent is no longer seized of the matter. The Prosecutor identifies the suspect, summarily examines him/her, and if charges are laid by magistrate, the Prosecutor decides whether the accused is detained or freed on bail.
After arrest, section 52 of the Code of Penal Procedure provides that an accused shall appear before the Court within:
- 5 days if the accused resides in the city where the hearing is;
- 10 days if he resides in the department where the hearing is;
- 30 days if he resides in another department or;
- 90 days if he resides abroad.
A person arrested has the right to counsel, to speak with his family, to find the means to ensure a defense, to consult a doctor and to get medical treatments if necessary and to take measures to be released on bail. Upon arrest, the accused has the right to be informed of the reasons of the arrest and to be accompanied by a third party in order for the third party to know where the accused is taken. The accused may be detained for a period not exceeding 24 hours.
The sanction for the non-respect of a penal procedure rule is stay of procedures. When the violation either undermines the rights of the accused or is against public order, the sanction is absolute stay of procedures. Such violation may be alleged any time during the trial. When the violation of the code is from a different nature, the sanction is relative stay of procedures and must be alleged in limine litis, failing which, the sanction is no longer available.
The New Code has improved and defined the rights of the suspect with regard to police custody (garde à vue). Before, police used this method for hidden purposes, chiefly, to examine suspects by virtually all means in order to obtain confessions, often under coercion. Now, police custody is limited to 48 hours and can be renewed twice by authorization of the Prosecutor. During this time, the suspect is entitled to communicate with his lawyer. Section 118 of the Code provides that no one having a known residence may be kept under police custody unless there are grave and concordant elements against that person pointing toward the commission of a crime or flagrant offence.
Remedies for victims of unlawful or abusive detention is indemnification: section 236 of the NCPP provides that in such cases, when the charges are dismissed or the accused is found not guilty, the victim may be indemnified if he proves that the detention caused him “actual prejudice of a particular gravity”. The letter of the law does not provide more details as to what “particular gravity” means.
The nature of the trial is accusatorial.
Preliminary investigation is mandatory in all felonies. The judicial police officer has the obligation to inform the suspect at the beginning of the preliminary investigation of his right to remain silent and his right to be assisted by counsel, failing which, the procedures are stayed. Where the suspect has no known residence or no money for bail bond, he is arrested and taken before the Prosecutor at the end of the preliminary examination. Otherwise, he is freed at the end of the preliminary examination.
At first hearing, the suspect is informed of the facts for which he is suspected of having committed, as well as the applicable sections of the criminal legislation. Such information provided to the suspect is known as a holding charge and only an examining magistrate can lay charges. The judge shall inform the accused that he is free not to make any spontaneous declaration and may be assisted by counsel. Any confession obtained in violation of these rules is invalid, except if the indicted is accused of flagrant crime or where there is an element of urgency, including cases where the evidence could disappear or in the event of the eminent death of a witness.
Pre-trial detention is exceptional and can only be ordered in cases of delicto or crime. Where the indicted has a known domicile, pre-trial detention can only be ordered in cases of crime which carry a jail sentence. Pre-trial detention cannot exceed 6 months and can be renewed for (a) 6 months in cases involving a delicto, and (b) 12 months in cases involving a crime. After the expiration of the delay of validity for pre-trial detention, he judge ought to free the accused, failing which, the judge is exposed to disciplinary sanctions.
The New Code has introduced elements of common law at trial. Each witness is subject to an examination-in-chief. If the opposite party so desires, he/she may cross-examine the witness and finally, the party who called the witness is free to re-examine the witness. Cross-examination is not limited to fact raised in examination-in-chief, but no new fact shall be raised in re-examination.
When necessary to determine a technical question, a party or the magistrate may call an expert witness.
Any party has the right to appeal the judgment within 10 days of the day after the judgment was delivered. A judgment made by the court of appeal may be subject to cassation before the Supreme Court.
Post-Conviction Facts / Issues
The estimated prison population is 23 000 as of 2009, including pre-trial detainees and remand prisoners. There are 72 establishments in Cameroon and the official capacity is 16,142 detainees, thus raising the occupancy level at 137.4%. In 2015,over 26702 individuals were detained for an official capacity of 17 896 detainees.
- Henry Samuelson & Co., "Cameroon Legal System", 12th September, 2009, online: http://www.hg.org/article.asp?id=7155
- The Customary courts ordinance cap 142 of 1948
- Henry Samuelson & Co., "Cameroon Legal System", 12th September, 2009, online: http://www.hg.org/article.asp?id=7155
- Wikipedia, Corruption au Cameroun, online: http://fr.wikipedia.org/wiki/Corruption_au_Cameroun and Transparency Watch, http://www.transparency.org/publications/newsletter/2007/november_2007/anti_corruption_work/gcr_french
- Section 37 Constitution of Cameroon
- Website of the Supreme Court:http://www.coursupreme.cm/
- Section 39 Constitution of Cameroon
- GlobaLex, Researching Cameroon Law, Charles Manga Fambad, online: http://www.nyulawglobal.org/Globalex/Cameroon.htm
- GlobalLex, Researching Cameroonian Law, Charles Manga Fombad, online: http://www.nyulawglobal.org/Globalex/Cameroon.htm
- Constitution of the Republic of Cameroon,Law No. 96-06 of 18 January 1996 to amend the Constitution of 2 June 1972,online: http://confinder.richmond.edu/admin/docs/Cameroon.pdf
- http://en.wikipedia.org/wiki/Constitution_of_Cameroon and https://www.icrc.org/ihl-nat/0/7e3ee07f489d674dc1256ae9002e3915/$FILE/Constitution%20Cameroon%20-%20EN.pdf
- Nouveau Code de Procédure Pénale, Presses Universitaires d’Afrique, Yaoundé, (2005), entered into force on 1st January, 2007 by loi n°2005-007 du 27 juillet 2005 portant code de procédure pénale (NCPP)Section 103
- Section 104 (2)a) NCPP.
- Section 111 NCPP
- Section 114 (1) NCPP
- Section 37, NCPP
- Sections 3 and 4 NCPP
- Section 3 NCPP
- Section 4 NCPP
- Section 119 NCPP
- Section 122 NCPP
- Fonachu, née Fang Helen Ike, The Criminal Justice System in Cameroon: Problems faced with Regard to Corruption and Suggested Solutions, http://www.unafei.or.jp/english/pdf/RS_No76/No76_16PA_Ike.pdf
- Section 116, NCPP
- Section 117 NCPP
- Section 167 NCPP
- Section 170 (2) NCPP
- Section 174 (3) NCPP
- Section 218 NCPP
- Section 332 NCPP
- Section 332 (2)(3)(4)(5) NCPP
- Sections 203 ss NCPP
- Section 472 NCPP
- King's College London, World Prison Brief, online: http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_country.php?country=7