The Constitution and Governance in Cameroon This book provides a systematic analysis of the major structural and institutional governance mechanisms in Cameroon, critically analysing the constitutional and legislative texts on Cameroon’s semi-presidential system, the electoral system, the legislature, the judiciary, the Constitutional Council and the National Commission on Human Rights and Freedoms. The author offers an assessment of the practical application of the laws regulating constitutional institutions and how they impact on governance. To lay the groundwork for the analysis, the book examines the historical, constitutional and political context of governance in Cameroon, from independence and reunification in 1960–1961, through the adoption of the 1996 Constitution, to more recent events including the current Anglophone crisis. Offering novel insights on new institutions such as the Senate and the Constitutional Council and their contribution to the democratic advancement of Cameroon, the book also provides the first critical assessment of the legislative provisions carving out a special autonomy status for the two Anglophone regions of Cameroon and considers how far these provisions go to resolve the Anglophone Problem. This book will be of interest to scholars of public law, legal history and African politics. Laura-Stella E. Enonchong is a Senior Lecturer at De Montfort University, UK. Routledge Studies on Law in Africa Series Editor: Makau W. Mutua The Constitution and Governance in Cameroon Laura-Stella E. Enonchong The Constitution and Governance in Cameroon Laura-Stella E. Enonchong First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Laura-Stella E. Enonchong The right of Laura-Stella E. Enonchong to be identified as author[/s] of this work has been asserted by him/her/them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-138-49310-0 (hbk) ISBN: 978-1-351-02886-8 (ebk) Typeset in Baskerville by MPS Limited, Dehradun For Mumsy Etombi Contents List of Abbreviations ix Table of Cases xi Table of Legislation xiv Preface xix Introduction 1 1 A history of the constitution and governance in Cameroon 8 Introduction 8 Part I. Background 8 Part II. Colonial governance and administration 9 Part III. Post-independence constitutional developments 18 Conclusion 27 2 Executive power in the context of semi-presidentialism 36 Introduction 36 Part I. Semi-presidentialism and the structure of the executive 36 Part II. The President 37 Part III. The PM and the government 51 Conclusion 56 3 The electoral system and the legislature 69 Introduction 69 Part I. The electoral system 69 Part II. Election of members of parliament 76 Part III. Structure of the legislature 79 Part IV. Powers and functions of the legislature 84 Part V. Parliamentary accountability 97 Conclusion: democratisation and bicameralism in a one-party dominated state 98 4 The judiciary, judicial independence and power 110 Introduction 110 Part I. Organisation of the judicial system and jurisdiction of the courts 110 Part II. The status and independence of the judiciary 120 Conclusion 136 5 The Constitutional Council and democratic advancement 149 Introduction 149 Part I. Structure and competence of the Constitutional Council 149 Part II. International treaties and the alternative to constitutional review 166 Conclusion 169 6 Managing diversity: the Anglophone struggle for self-determination 178 Introduction 178 Part I. The immediate triggers of the Anglophone crisis in brief 179 Part II. Responses to the Anglophone problem 181 Conclusion 208 7 The protection of human rights and fundamental freedoms 220 Introduction 220 Part I. Overview of constitutional provisions 221 Part II. Enforcement mechanisms 225 Conclusion 236 Conclusion 243 Constitutional engineering 244 Index 247 viii Contents List of Abbreviations AAC All Anglophone Conference ARCAM Assemblée Représentative du Cameroun ALCAM Assemblée Législative du Cameroun CACSC Cameroon Anglophone Civil Society Consortium CAM Cameroon Anglophone Movement CCLR Cameroon Common Law Report CDU Cameroon Democratic Union CHRC Cameroon Human Rights Commission CMC Cameroon Music Corporation CNU Cameroon National Union CONAC National Anti-Corruption Commission CPDM Cameroon People’s Democratic Movement CWU Cameroon Welfare Union DSC Divisional Supervisory Commissions EI L’exception D’inconstitutionnalité ELECAM Elections Cameroon ENAM National School of Administration and Magistracy ERRC Electoral Register Revision Commission FWCM Free West Cameroon Movement GCE General Certificate of Education HJC Higher Judicial Council HRC United Nations Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice JEUCAFRA Jeunesse Camerounaise Francaise JOO Judicial Organisation Ordinance KNC Kamerun National Congress KNDP Kamerun National Democratic Party LPC Local Polling Commissions MRC Movement for the Renaissance of Cameroon MP Member of Parliament NCFCV National Commission for the Final Counting of Votes NCHRF National Commission on Human Rights and Freedom NEO National Elections Observatory NLC Nigerian Legislative Council NUDP National Union for Democracy and Progress OHADA Organisation for the Harmonisation of Business Law in Africa OMJ Decree Organising the Ministry of Justice PIC Public Independent Conciliator PM Prime Minister QPC Question Prioritaire de Constitutionnalité RA Regional Assembly REC Regional Executive Council SCACUF Southern Cameroons Ambazonia Consortium United Front SCAPO Southern Cameroons Peoples Organisation SCNC Southern Cameroons National Council SCYL Southern Cameroons Youth League SDF Social Democratic Front SDO Senior Divisional Officer SOM Statute of the Magistracy TCCM Technical Committee on Constitutional Matters UC Union Camerounaişe UPC Union des Populations du Cameroun UNHCR United Nations High Commissioner for Refugees VCIDC Voter Card Issuance and Distribution Commission x List of Abbreviations Table of Cases African Commission on Human and Peoples’ Rights Civil Liberties Organization v Nigeria ACHPR Communication No. 129/94 (1995) Katangese Peoples’ Congress v Zaire , Comunication No. 75/92, 1HRL 174(ACHPR 1995) Kevin Mgwanga Gunme and 13 Ors v Cameroon, Communication No. 266/2003 ACHPR (05/2009), Ex.CL/529(XV) Annex 4 Botswana Letsweletse Motshidiemang v Attorney General [2019] MAHGB000591-16(High Court of Botswana at Gaborone) Cameroon Akiangan Fombin Sebastian v Foto Joseph & Others , Suit No. HCK/3/96 of 6 January 2000 (unreported) Albert Chidi v The People , Suit No. LM/98/M/2002 (unreported) Benjamin Itoe v Joseph Ncho, Suite No. BCA/1/81 of 13 July 1981 (unreported) Bonu Innocent v Bakongo Simon (1997) 1 CCLR 142 Cameroon Music Corporation (CMC) v Ministry of Culture , Judgment No. 192/2011/ CS/CA of 7 September 2011 (unreported) D. S. Oyebowale v Company Commander of Gendarmerie for Fako. Suit No. HCF/ 0040/HB/09 (unreported) Eglise Presbytérienne du Cameroun , Ordonnace No. 02/CS/CA of 26 October 1994 (unreported) Eitel Mouelle Kouala v République Fédéral du Cameroun, Arrêt No. 178/CFJ/CAY of 29 March 1972 Etengeneng J. T. v The Governor of South West Province (1998) 1CCLR 9 James v Tchoussongou (2001) 1 CCLR 730 Jesco Manga Williams v Chantier Naval (2005) 2 CCLR 99 Kouang Guillaume v État du Cameroun , Jugement No. 53/CS/CA of 26 June 1980 (unreported) Kouang Guillaum v État du Cameroun , Judgment No. 66 ADD/CS/CA of 31 May 1979 (unreported) Mbarga Symphorien v Etat du Cameroun , Judgment No. 29/CS/CA of 3 May 1990 Michel Zouhair Fadoul v Omaïs Kassim et Société Omaïs Selecta Sarl , Arrêt No. 21/ Civ/CS/CJ of 15 July 2010 (ohadata J-12-242) Mvogo Jean-Marie v État du Cameroun , Judgment No. 1203/CS/CA/1999–2000 (unreported) Namondo Makake v Bernard O. Bilai Suit No: HCF/164/IR/04-05 (unreported) Nji Ignatius v The People , HCF/22M/03-04 (unreported) Nve Ndongo v Ngaba Victor , Decision of the Full Bench of the Federal Supreme Court No. 10 of 17 October Senior Divisional Officer (SDO) Oku v Shey Ndifon & Oku Rural Radio Association , Suit No. HCB/05M/2003–2004 (unreported) Social Democratic Front (SDF) v État du Cameroun , Ordonance No. 01/OSE/ CCA/CS/2009 (unreported) Société Forestière de la Sanaga v État du Cameroun , Arrêt No. 5/CFJ/AP of 15 March 1967 (unreported) The People v Nya Henry & 4 Others (2005) 1CCLR, 61 Wakai & 172 Others v The People , 1997, 1CCLR, 127 Walter Numvi, Che Nji & Kongnso Lawrence v The People , Suit No. CANWR/MA/ 3C/2015, SLR 6[2017] 10 Woundjou Samuel v Ministère Public & Kamdem Emillienne , Arrêt No. 102 of 20 November 2014 (unreported) Cameroon – Constitutional Council Decision No. 02/SCCL/G/SG/CC of 12 February 2019 Decision No. 01/SCCL/G/SG/CC of 10 January 2019 Decision No. 30/CE/CC/2018 of 18 October 2018 Decision No. 028/G/SRCER/CC/2018 of 17 October 2018 Decision No. 28/CE/CC/2018 of 16 October 2018 Decision No. 024/CE/CC/2018 of 16 October 2018 Decision No. 001/G/SCT/CC/2018 of 30 July 2018 Decision No. 09/CE/CC/2018 of 3 April 2018 Decision No. 008/CE/CC/2018 of 3 April 2018 Court of Justice of the European Union Case C-509/18 PF (Prosecutor General of Lithuania) Case C-508/18 OG (Public Prosecutor’s office of Lübeck) Case C-82/19 PPU PI (Public Prosecutor’s office of Zwickau) European Court of Human Rights A v United Kingdom (35373/97) (2003) 36 E.H.R.R. 51 France Decision 2013-156 PDR of 4 July 2013 Decision CC No. 44–71 (1971) Syndicat Général des Ingénieurs-conseils & Administration des Douanes v Société des Cafés Jacques Vabre , Judgment of 24 May 1975, CC (chamber mixte), 1975, D.S. Jur, (Fr) 497 CE Ass. 20 October 1989, Nicolo, Rec. Lebon, 190 India Kesavanda Baharati v State of Kerala (1973) 4. S.C.C. 225 xii Table of Cases Nigeria Gunme & Ors v Attorney General of the Federal Republic of Nigeria . Suit No. FHC/ ABJ/CS/30/2002 Sisiku Ayuk Tabe & 11 Ors v The National Security Adviser & Anor (Suit No./FHC/ ABJ/CS/85/2018) Wilfred Tassang & 50 Ors v The National Security Adviser & Anor (Suit No./FHC/ ABJ/CS/147/2018) United Kingdom M v Home Office & another [1994] 1AC377 United Nations Human Rights Committee Toonen v Australia , Communication No. 488/192 U.N.Doc. (CPR/C/50/D) 488/1992 (1994) Young v Australia Communication No. 94/2000 U.N.Doc. (CCPR/C/78/D/ 941/2000) United States of America Hamdan v Rumsfeld , 126 S. Ct 2749, 2798 (2006) Zambia Chiluba v Attorney General , 2003 [ZMSC] 4 Table of Cases xiii Table of Legislation Benin Constitution of the Republic of Benin 1990 Law No. 91-009 of 4 March 1991 relating to the Constitutional Court as amended by Law N0. 91-009 of 31 May 2001 Botswana Constitution of the Republic of Botswana 1966 (as amended in 2006) Cameroon British Cameroons Ordinance No. 5 of 1924 Cameroons under British Administration Order-in-Council N° 1621, 1923 Constitution of La République du Cameroun 1960 Constitution of Cameroon (Federal) 1961 Constitution of Cameroon (Unitary) 1972 Constitution of Cameroon 1996 (as amended) Decree No. 2019/3179/PM of 2 September 2019 to Grant the Status of Economic Disaster Areas to the Far-North, North-West and South-West Regions Decree No. 2018/5190/PM of 22 June 2018 appointing officials at the Ministry of Basic Education Decree No. 2018/242 of 12 April 2018 relating to the Appointment of Senators Decree No. 2017/013 of 23 January 2017 on the creation of the National Commission for Bilingualism and Multiculturalism Decree No. 2016/072 of 15 February 2016 relating to certain aspects of the Social Security System Managed by the National Social Insurance Fund Decree No. 2013/149 of 8 May 2013 Relating to the Appointment of Senators Decree No. 2012/119 of 15 March 2012 to set up Administrative Courts Decree No. 2011/412 of 9 December 2011 relating to the Organisation of the Presidency of the Republic Decree No. 2011/408 of 9 December 2011 to Organise the Government Decree No. 2010/384 of 23 December 2010 on the creation, organisation and functioning of the National Civic Service Agency for Participation in Development Decree No. 2008/463 of 30 December 2008 appointing Electoral Commission members Decree No. 2007/003 of 13 July 2007 establishing the National Civic Service for Participation in Development Decree No. 2006/088 of 11 March 2006 relating to the Creation, Organisation and Functioning of the National Anti-Corruption Commission Decree No. 2005/122 of 15 April 2005 Organising the Ministry of Justice Decree No. 95/048 of 8 March 1995 on the Status of the Magistracy Decree No. 90/1459 of 8 November 1990 to set up the National Commission on Human Rights and Freedoms Decree No. 72/270 of 2 June Promulgating the Constitution of the United Republic of Cameroon Law No. 2019/024 of 24 December 2019 to Institute the General Code of Regional and Local Authorities Law No. 2019/019 of 24 December 2019 on the Promotion of Official Languages in Cameroon Law No. 2019/014 of 19 July 2019 relating to the Establishment, Organisation and Functioning of the Cameroon Human Rights Commission Law No. 2019/005 of 25 April 2019 to amend some provisions of Law No. 2012/001 of 19 April relating to the Electoral Code Law No. 2018/012 of 11 July 2018 Relating to the Fiscal Regime of the State and other Public Entities Law No. 2018/011 of 11 July 2018 to Lay Down the Cameroon Code of Transparency and Good Governance in Public Finance Management Law No. 2017/14 of 12 July 2017 to amend and supplement some provisions of Law No. 2006/16 of 29 December 2006 to lay down the Organisation and Functioning of the Supreme Court. Law No. 2017/012 of 12 July 2017 to lay down the Code of Military Justice Law No. 2016/011 of 27 October 2016 to amend and supplement certain provisions of Law No. 2013/006 of 10 June 2013 on the Standing Orders of the Senate Law No. 2016/007 of 12 July 2016 relating to the Penal Code Law No. 2014/028 of 14 December 2014 on the Repression of Acts of Terrorism Law No. 2014/016 of 9 September 2014 to amend and supplement certain provisions of Law No. 73/1 of 8 June 1973 on the Standing Orders of the National Assembly Law No. 2013/006 of 10 June 2013 on the Standing Orders of the Senate Law No. 2012/001 of 19 April 2012, relating to the Electoral Code (Electoral Code) Law No. 2011/28 of 14 December 2011 relating to the creation of the Special Criminal Court Law No. 2009/011 of 10 July 2009 on the Financial Regime of Regional and Local Authorities Table of Legislation xv Law No. 2008/001 of 14 April 2008 to amend and supplement some provisions of Law No. 96/6 of 18 January 1996 to amend the Constitution of 2 June 1972 Law No. 2007/001 of 19 April 2007 to institute a Judge in Charge of Litigation Related to the Execution of Judgments and Lay Down Conditions for the Enforcement in Cameroon of Foreign Court Decisions, Public Acts and Arbitral Awards Law No. 2006/022 of 29 December 2006 on the Organisation and Functioning of Administrative Courts Law No. 2006/017 of 29 December 2006, to Lay Down the Organisation, Duties and Functioning of Regional Audit Courts Law No. 2006/016 of 29 December 2006 on the organisation of the Supreme Court Law No. 2006/015 of 29 December 2006 on the organisation of the Judiciary Law No. 2006/011 of 29 December 2006 on the organisation of the Electoral Commission Law No. 2006/001 of 25 April 2006 relating to the Declaration of Assets and Property Law No. 2004/019 of 22 July 2004 to lay down Rules Applicable to Regions Law No. 2004/018 of 22 July 2004 to lay down Rules Applicable to Councils Law No. 2004/017 of 22 July 2004 on the Orientation of Decentralisation Law No. 2004/005 of 21 April 2004 relating to the Status of Constitutional Council Membership Law No. 2004/004 of 21 April 2004 on the Organisation and Functioning of the Constitutional Council Law No. 2000/016 of 19 December 2000 to set up a National Elections Observatory Law No. 96/12 of 5 August 1996 on the Framework Law on Environmental Management Law No. 90/60 of 19 December 1990 to set up and organise the State Security Court Law No. 90/056 of 19 December 2019 on Political Parties Law No. 90/055 of 19 December 1990 on Public Meetings and Processions Law No. 90/54 of 19 December 1990 on the Maintenance of Law and Order Law No. 90/053 of 19 December 1990 on Freedom of Association Law No. 90/052 of 19 December 1990 on the Freedom of Social Communication Law No. 90/47 of 19 December 1990 relating to the State of Emergency Law No. 84/1 of 4 February 1984 to amend and supplement some provisions of the 1972 Constitution Law No. 82/14 of 26 November 1982 relating to the Higher Judicial Council Law No. 73/1 of 8 June 1973 on the Standing Orders of the National Assembly Law No. 67/LF/1of 12 June 1967 Introducing the Cameroonian Penal Code Loi Cadres 1956 xvi Table of Legislation Ordinance No. 2018/002 of 4 June 2018 to Amend and Complete Certain Provisions of Law No. 2017/021 of 20 December 2017 relating to the 2018 Finance Law of the Republic of Cameroon Ordinance No. 72/12 of 26 August 1972 Relating to the Immunity of Members of the National Assembly Southern Cameroons High Court Law 1955 Democratic Republic of Congo Constitution of the Democratic Republic of Congo 2005 Law No. 08/013 of 2008 on the Congolese Conseil Supérior de la Magistrature France Constitution of the Fifth French Republic 1958 Loi Organique No. 2009-1523 of 10 December 2009 on the application of art 61-1 of the French Constitution Loi Organique No. 2010-830 of 22 July 2010 on the application of article 65 of the French Constitution Ghana Constitution of the Republic of Ghana 1992 Kenya Constitution of Kenya 2010 Nigeria Constitution of the Federal Republic of Nigeria 1999 South Africa Constitution of the Republic of South Africa 1996 Tanzania Acts of Union of Tanganyika and Zanzibar, 25 April 1964, Act No. 22 of 1964 (Cap. 557 of the Laws) The United Republic (Declaration of Name) Act of 1964, Act No. 61 of 1964 (Cap.578 of the Laws) International Treaties and Agreements Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) International Covenant on Civil and Political Rights 1966 (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Treaty of Versailles 1919 United Nations Charter (adopted 26 June1945, entered into force 24 October 1945) 1 UNTS XVI Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Regional Instruments African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter) European Convention for the Protection of Human Rights and Fundamental Freedoms 4 November 1950, ETS 5; 213 UNTS 221 Treaty on the Harmonisation of Business Law in Africa, 17 October 1993 Table of Legislation xvii Other Regional and International Instruments Principles relating to the status of National Human Rights Institutions (Paris Principles) (adopted 20 December 1993) UNGA Res 48/134 Others Mandate and Trusteeship Agreements for Cameroon British Mandate for the Cameroons as confirmed and defined by the Council of the League of Nations London, 20 July 1922 French Mandate for Cameroon as confirmed and defined by the Council of the League of Nations London, 20 July 1922 Trusteeship Agreement for the Territory of the Cameroons under British Administration (UNGA Approved on 13 December 1946) 118 UNTS 135 Trusteeship Agreement for the Territory of the Cameroons under French Administration (UNGA Approved on 13 December 1946) 119 UNTS 135 UN General Assembly Resolutions on Cameroon UN General Assembly Resolution 2013(XXVI) of 31 May 1960 UN General Assembly Resolution 1352(XIV), 16 October 1959 UN General Assembly Resolution 1350(XIII), 13 March 1959 UN General Assembly Resolution 1349(XIII), 13 March 1959 xviii Table of Legislation Preface This book provides a systematic analysis of the governance system of Cameroon within the framework of the Constitution. It scrutinises the institutional structures established by the Constitution and other legislative instruments and assesses the ways in which they shape and construct contemporary governance in Cameroon. The analysis is deployed through a historical exploration of constitutional developments and the contemporary contextual application of the Constitution. The book examines the operational dynamics of key institutions such as the executive, the legislature, the judiciary, the National Electoral Commission, the Constitutional Council and the National Commission on Human Rights and Freedoms. It explores the extent to which these institutions have been designed to address or influence contemporary governance challenges. It further provides an in-depth original analysis of more recent features in the governance landscape such as the Senate, the upper legislative chamber that has only been in existence since 2013 and the even more recent Constitutional Council established in 2018. Both institutions were provided for in the 1996 Constitution and their role was deemed vital to the democratisation process underpinning the adoption of that Constitution. The book analyses and assesses the influence of these institutions on the constitutional and democratic governance of Cameroon. One prominent feature that permeates discourse on constitutional governance in post-colonial states is the recognition of minority identities. Cameroon has grappled with that issue in relation to the recognition of the English-speaking minorities – the Anglophone problem. The book provides a comprehensive analysis of that problem tracing its historical origins from the immediate post- independence constitutional history of Cameroon to more contemporary legislative developments. It explores alternative narratives geared at resolving the Anglophone problem within the framework of the Constitution. It further provides an original in-depth analysis of the recent 2019 legislative provisions establishing a special autonomy status for the minority English-speaking North- West and South-West Regions. The book draws on comparative approaches to constitutional governance in common law and civil law-oriented jurisdictions in Africa and Europe to highlight the fundamental idiosyncrasies in the understanding and the application of