Constitutional and Statutory Safeguards for Fair Trial and Justice under Cameroonian Legal System: A Legal Appraisal
Keywords:
Safeguards, Fair Trail, Justice, Criminal Procedure, Human Rights, Cameroon ConstitutionAbstract
The safeguard for fair trail and justice is the bedrock for preventing the abuse of the rights of litigants in criminal adjudication. The Right to Fair Trial and Justice is a Fundamental Human Right embedded in a plethora of international instruments and national legislations. Without safeguard for fair trial and justice, trust in the judiciary and the rule of law collapses. This paper aims principally at analyzing the law rather than criticizing it. That notwithstanding, shortcomings and ambiguities in the laws are fairly raised. The paper is, therefore, not restricted to the exposition of the law–whereas necessary, has equally highlighted modern values, principles, and procedural rules to permit the understanding of the lacunae and ambiguities in Cameroon’s procedural laws, and for the law marker to find solutions to these shortcomings and incongruities. This is purposefully done so as to grasp a holistic picture of the subject matter, view the Cameroonian constitutional and procedural laws from a wider perspective and make a theoretical and practical analysis of criminal issues. The paper reveals that, though the Cameroonian legal system recognizes the various safeguard measures for fair trail and justice, there is ineffective implementation, high rate of bribery and corruption and non-respect of the principle of Separation of Powers with constant interference of the executive arm of Government in the Judiciary. As a mithridate against this seemingly deplorable situation, it is recommended that an effective follow-up and better living standard be encouraged by the Cameroon government.
References
Byles J in Cooper v. Wandsworth Board of Works (1861-73) ALL ER 1554.
Such as family law, law of contract, etc.
Such as criminal procedure, evidence and civil procedure.
Fonkwe, J., & Eware, A., (2019) Cameroon Criminal Procedure and Practice in Action, Douala., Cameroon, Editions Veritas. P.1.
Ibid.
According to Section 9 CPC: (1) A suspect shall be a person against whom there exists any information or clue which tends to establish that he may have committed an offence or participated in its commission. (2) The defendant shall be any suspect whom an Examining
Magistrate notifies that he is presumed henceforth either as the offender or co-offender, or as an accomplice. (3) An accused shall be a person who must appear before the trial court to answer to the charge brought against him, whether in respect of a simple offence, a misdemeanour or a felony.
Law no 96/06 of 18 January 1996 to amend the Constitution of 2nd June 1972 as amended by law no 2008/001 of 14 April 2008.
Article 65 of the 1996 constitution as amended.
See generally Awa R. Mokom., “The Right To Fair Hearing In Cameroon: Prospects And Challenges”, 2021, accessible at https://hrlrc.org/2021/09/29/the-right-to-fair-hearing-incameroon-prospects-and-challenges/ (visisted 04 April, 2022)
Hereinafter referred to as UDHR.
Hereinafter referred to as ICCPR.
Cameroon acceded to the International Covenant on Civil and Political Rights on 27 September 1984.
Hereinafter referred to as ACHPR.
Hereinafter referred to as CPC.
Law N°65-LF-24 of 12 November 1965 and law N°67-LF-1 of 12 June 1967 as modified and completed by law N°2016/007 of 12 July 2016 on the Penal Code.
Hereinafter referred to as PC.
Hereinafter referred to as The 2006 Law on Judicial Organization as amended.
Listen to both sides.
(1861-73) ALL ER 1554 “the law of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence. 20. (2005) 1 CCLR pp. 61-66.
Afuba M.D., The Constitutional Protection of Civil and Political Rights in Cameroon, University of Botswana Law Journal, 2006. P.73.
Pefela Gildas Nyugha,. The Protection of Individual Rights and Freedoms in Cameroon’s Legal Order: Prospects for an Emerging Country. Journal of Human Rights Law and Practice. 2018; 1(2), P.29.
Article 10 of the UDHR.
See the preamble of the 1996 Cameroon constitution as amended.
Ibid.
Article 37 (3) of the 1996 Cameroon constitution.
Post-trial safeguards for fair trial and justice.
See, Sections 315(2) and 122(2) CPC.
Meaning of Miranda warning (Google search 02/04/2022).
R V. Prager, [1972] All E.R. 144.
North West and South West Regions of Cameroon.
Section 122(2) CPC.
Ibid. Section 30 (4) C.P.C.
Cameroon has also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). See generally Afuba M.D., The Constitutional Protection of Civil and Political Rights in Cameroon, University of Botswana Law Journal, 2006. PP. 67-92.
Minang N. V., Nguindip N. C., (2020), An Analysis of The Legal Standard In The Fight Against Torture And Treatment of Prisoners Under International Law: What Prospect For Application Under Cameroonian Law?, Law and Safety. 2020. № 1(76), P.126.
Section 30 (2) C.P.C.
In The People v. Enguene Malgloire, (JUDGFEMENT No. 16/04 delivered on the 16th of January, 2009. a Superintendent of Police attached to the Garoua Emi-Immigration Police Station used violent and abuses the accused, the accused was charged with assault and false arrest. He was acquitted.
Nguindip; Forsuh & Tetiewe: Appraisal of the Protection of the Rights of Suspects under the Cameroonian Criminal Procedure Code, NAUJILJ 12 (1) 2021. P.164.
Article 14(3)(a) of the ICCPR.
Section 39 CPC: Legal notification shall consist of bringing a legal document to the knowledge of the interested party. It shall be done through administrative channels, in particular by registered letter with acknowledgment of receipt due, or by an officer of the judicial police who shall make a report thereon.
See Article 14(3)(d) of the ICCPR, and article 7(1)(c) of the ACHPR.
Hereinafter referred to as JPO.
See section 122(3) CPC for more emphasis.
Preliminary Inquiry means an investigation of criminal charge done by an Examining Magistrate in view of committing an accused person(s) for trial before the court of First Instance or the High Court. It is a criminal hearing usually conducted by a Magistrate to determine whether there is
sufficient evidence to prosecute the defendant. See generally section 142 CPC.
Hereinafter referred to as the 2009 Law on Legal Aid.
Section 122(1b&c) CPC.
Section 122(4) CPC.
See Sections 238-239 CPC.
See, Section 245 (4) (i) CPC.
Section 37: Any person arrested shall be given reasonable facilities, in particular, to be in contact with his family, obtain legal advice, make arrangements for his defence, consult a doctor and receive medical treatment and take necessary steps to obtain his release on bail. See, Sections 236 and 237 CPC.
Fonkwe, J., & Eware, A., (2019), Op.Cit., at P.9.
See generally section 119 (1) CPC.
See, Section 119(2-4) CPC.
Fonkwe, J., & Eware, A., (2019), loc.cit., at P.8.
See, Section 118(2).
See Section 218: (1) Remand in custody shall be an exceptional measure which shall not be ordered except in the case of a misdemeanour or a felony. It shall be necessary for the preservation of evidence, the maintenance of public order, protection of life and property, or to ensure the appearance of an accused before the Examining Magistrate or the court. Provided that a person with a known place of abode shall not be remanded in custody except in the case of a felony.
Section 221 states that (1) The Examining Magistrate shall specify the period of remand in custody in the remand warrant. It shall not exceed six (6) months. However, such period may, by reasoned ruling of the Examining Magistrate be extended for at most twelve (12) months in the case of a felony and six (6) months in the case of a misdemeanour.
Section 31: Except in the case of a felony or misdemeanour committed flagrante delicto, the person effecting the arrest shall disclose his identity and inform the person to be arrested of the reason for the said arrest, and where necessary, allow a third person to accompany the person arrested in order to ascertain the place to which he is being detained.
See Section 221(2) C.P.C.
See Sections 137(2), 584-588 CPC.
Fonkwe, J., & Eware, A., (2019), Op.Cit., at P.65.
See Cyprian Okonkwo, cases on Criminal Law Procedure and Evidence of Nigeria (Excluding the North), Sweet & Maxwell, 1966, p.79.
See generally Timothy Schnacke, Micheal Jones & Claire Brooker: The History of Bail and Pretrial release, Pre-trial Justice Institute 2014.
French speaking part and English speaking part.
See Sections 221(2), 222 and 223 CPC for unconditional or self-bail and Sections 224-235, 246(g) and 397(1) CPC for conditional bail. For bail granted by the Supreme Court, see Sections 516-517 CPC.
Suit No HCND/2C/2005-6 unreported.
2001 2 C.C.L.R. P. 219-220.
[1997] 1C.C.L.R. P. 92.
Appeal No BCA/MS/11C/2002 unreported.
Appeal No BCA/MS/8C/2002 unreported.
Supreme Court Arrête No 63/D du 14 Novembre 1996.
Supreme Court order No 57/P of 27 October 1994.
TPI Ezeka, Judgment No 911/COR.
See section 21 of the Penal Code dealing with classification.
Article 14 (3)(b) of the ICCPR.
See section 170(1c) CPC and Article 7(1) of the ACHPR.
A Direct Summons is an act of the bailiff, issued upon the request of the State Counsel, the Civil Party or Certain Administrative officers who have the right to initiate criminal action in relation to offences touching on their interest. It permits the direct seizure of the court by summoning the accused in front of it. It is used only in cases of misdemeanour and simple offences and not in felonies where preliminary inquiry is obligatory. The accused must be notified thereof to permit him prepare his defence. It must indicate the place, the day, and the hour of hearing, the facts the accused is being reproached for, and must equally identify the accused.
This is a simple and rapid special procedure to seize the court, instituted by Section 114 of the Cameroon CPC.
Section 300 CPC.
See generally section 52 CPC.
Fonkwe, J., & Eware, A., (2019), Op.Cit., at P.11.
Section 418 CPC.
See Walter Numvi & 2 Others Vs The People, Judgment in Suit No. CANWR/MA/3c/2015 of 12 July 2016 {SLR vol. 6 pp.2-17}.
See, Sections 354-358 CPC.
According to Article 1(3) of the 1996 Cameroon constitution as amended, the Official languages of the Republic of Cameroon shall be English and French, both languages having the same status.
Section 354 (1) CPC.
Ibid. Section 355 CPC.
Section 357 CPC.
Section 358 CPC.
See Angoh Aloysius Ebefi Vs The People and Ngankam Rigobert, Judgment No. 178/P of 13 May 1993 {RCJCSC part 2, vol. 1, p. 746}.
See Section 6(1) of the 2006 Law on Judicial Organization as amended.
Fonkwe, J., & Eware, A., (2019), Op.Cit., at P.323.
See also Article 14(1) of the ICCPR.
The term “public order” in the specific context of section 302 CPC is invoked wherever there is risk that the evidence to be adduced during the trial may perturb the peace and tranquility of the society. National security preoccupations and preserving of military secrets have equally been invoked to justify exclusion of the public on grounds of public order. Public order may be invoked to protect family secrets or details on the private lives of parties.
Fonkwe, J., & Eware, A., (2019), loc.cit., at P.323.
Victor Mukwelle Ngoh V. The People.CASWA/17c/73 (unreported).
[1962] No 64 W.C.L.R. 62.
See also Ngu Benedicta Biaka V. Francis Biaka, Supreme Court Judgment No. 38/L of 3rd April 1992.
1964-65 W.CL.R.
1968-70 UYLR 50.
See sections 5(2) and sections 6(1).
See section 3 (NEW) of the 2006 Law on Judicial Organization as amended on the classification of Courts in Cameroon.
See, Section 478 of the Cameroon CPC.
See, Section 271 CPC.
See Eriobuna V. Obiora (1999) 8 NWLR PT 616 p. 622.
See, Sections 591-599 CPC.
Ibid. Section 594(1) CPC.
See, Section 146 CPC.
Ibid. Sections 267-274 CPC.
Fonkwe, J., & Eware, A., (2019), Op.Cit., at P.328. See also Awa R. Mokom., (2021), op.cit.
See the provisions of Sections 349, 350 and 351 CPC.
See the provisions of Sections 170, 352 and 417 of the CPC. In fact, the Cameroonian CPC provides for mandatory legal representation for capital offences.
See Section 395(3) CPC Section 638(b) CPC.
Police Vs Johnson, 1955 LLR 55.
R Vs Hodge, 6 NLR 56.
See for example Sections 59, 61, 63, 64(3), 71, 75, and 76 of the Cameroon CPC.
Section 64(3) of the CPC.
Section 704 of CPC.
Section 705 CPC.
Section 706(1) & (2) CPC
Section 707 of CPC.
See, Sections 709(1) and 740(1) CPC.
Section 709(2) CPC.
Section 727 CPC.
Rehabilitation is a measure which unless otherwise provided by the law expunges a conviction for felony or misdemeanor. It puts an end to any accessory penalty and to any preventive measure except to confinement in a health institution and closure of an establishment.
Section 678 CPC.
Section 565 of CPC.
Sections 559-560 CPC.
Section 558 (1) CPC.
The Article makes the President of the Republic the guarantor of the independence of the judiciary, appoint members of the bench and legal department, be merely assisted in this task by members of the Higher Judicial Council, and nominate members of the bench and shall implement discipline actions against judicial and legal officers with the Higher Judicial Council merely acting as opinion givers.
The commission was created by Presidential Decree No. 2017/013 of 23rd January 2017 as an advisory body with legal personality and financial independence. The commission is placed under the authority of the President of the Republic.
See sections 13 and 16 of 2006 Law on Judicial Organization as amended.
Section 1-1 PC is titled “No exemption” and it states that “all persons shall be subject to the criminal law”.
